Factual and Procedural Background
This judicial review challenges the decision of the Director of Public Prosecutions (DPP) to prosecute a child, referred to as the Appellant, for alleged sexual abuse of her two younger sisters, the Appellees. The Appellant was born in 1996 and was approximately 12 years old at the time of the alleged offences in mid-2009. The Appellees were aged 3 and 2 years old at that time.
In January 2010, police discovered a video on the internet depicting the Appellant engaging in sexual activities with the Appellees. A multi-agency strategy group was convened to coordinate the response, including representatives from the local authority, NSPCC, safeguarding board, youth offending team, mental health services, school, and police. The group met several times and produced a report in June 2010 expressing concerns about the impact of prosecution on the children’s welfare and therapeutic support.
The Appellant was interviewed by police in March and April 2010, during which she alleged grooming by an adult male. The Crown Prosecutor decided in August 2010 that there was sufficient evidence and that it was in the public interest to prosecute the Appellant on four counts of sexual offences against the Appellees. The Appellant was summoned and appeared at Youth Court, which committed her for trial at Crown Court. Proceedings have been adjourned pending the outcome of the judicial review.
Legal Issues Presented
- Whether the DPP’s prosecutorial guidance is lawful and adequate, particularly in relation to children who are both defendants and victims.
- Whether the decision-making process by the Crown Prosecutor properly applied the relevant guidance and considered all relevant factors, including the welfare of the Appellant and the Appellees.
- Whether the decision to prosecute was substantively lawful, proportionate, and consistent with the Appellants’ rights under Articles 3 and 8 of the European Convention on Human Rights and relevant international instruments.
- Whether the Administrative Court is the appropriate forum for judicial review of the decision to prosecute, especially considering the distinct positions of the Appellant (defendant) and the Appellees (victims).
Arguments of the Parties
Appellant's Arguments
- The DPP’s guidance is inadequate and unlawful because it fails to address the special status of a child who is both defendant and victim, risking violations of international law.
- The Crown Prosecutor’s decision-making process was flawed, failing to properly apply the guidance, take into account relevant considerations, and provide adequate reasons, particularly ignoring the strategy group’s report.
- The decision to prosecute was disproportionate and failed to properly balance the rights and welfare of all children involved, contrary to Articles 3 and 8 of the European Convention and international obligations.
Appellees' Arguments
- Support the Appellant’s second and third complaints, focusing on the failure to apply guidance properly and the substantive unlawfulness of the prosecution decision from the victims’ perspective.
- Emphasize the absence of any other remedy for the Appellees to protect their interests except judicial review.
Director of Public Prosecutions' Arguments
- The DPP’s guidance and The Code for Crown Prosecutors provide a comprehensive, lawful framework that properly considers the welfare of children as defendants and victims.
- The decision to prosecute was made in good faith, with proper regard to all relevant factors, including the welfare of all children involved.
- Judicial review interference with prosecutorial discretion is appropriate only in highly exceptional cases, which this is not.
- The Crown Court is the proper forum for challenges to decisions to prosecute, except where victims have no locus standi in criminal proceedings.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Corner House Research and another) v Director of the Serious Fraud Office [2008] UKHL 60 |
Judicial deference to prosecutorial discretion; interference only in highly exceptional cases. |
Cited to affirm the principle that courts should be slow to interfere with prosecutorial decisions except where unlawful or irrational. |
| R v Chief Constable of Kent ex p L, R v Director of Public Prosecutions ex p B (1991) 93 Cr App R 416 |
Judicial review available if prosecutor fails to follow policy or acts unlawfully. |
Supported the proposition that failure to consider relevant factors can render a prosecution decision unlawful. |
| R v Director of Public Prosecutions ex p C [1995] 1 Cr App R 136 |
Failure to consider relevant matters in prosecutorial decision may lead to quashing of decision. |
Used to demonstrate that decisions must take into account all relevant factors. |
| R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) |
Policy that gives rise to unacceptable risk of unlawful decision-making is itself unlawful. |
Referenced by Appellant to argue inadequacy of DPP’s policy. |
| Piglowska v Piglowski [1999] 1 WLR 1360 |
Reasons should be read broadly and fairly, assuming decision-maker knew relevant considerations. |
Applied to assess whether Crown Prosecutor’s reasons showed proper consideration of factors. |
| Bensaid v United Kingdom (2001) 33 EHRR 205 |
Article 3 and Article 8 ECHR can protect dignity and mental integrity. |
Invoked to argue that prosecution may breach human rights of vulnerable children. |
| Pretty v United Kingdom (2002) 35 EHRR 1 |
Protection of dignity and mental health under Articles 3 and 8 ECHR. |
Used similarly to Bensaid for human rights argument. |
| R (C (A Minor)) v Secretary of State for Justice [2008] EWCA Civ 882 |
International obligations under UNCRC relevant to treatment of children in justice system. |
Referenced in relation to best interests of the child and prosecutorial decisions. |
| E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 |
State obligations under Article 3 ECHR to protect vulnerable individuals. |
Used to support arguments on vulnerability and human rights protections. |
| R (H) v A City Council [2011] EWCA Civ 403 |
Standard of review for human rights engaged cases is more intense than Wednesbury. |
Invoked to argue for heightened scrutiny of prosecutorial decision. |
| R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 |
More intense standard of review applied where human rights engaged. |
Supported argument for intense judicial scrutiny. |
| Massey v United Kingdom (2003, unreported) |
Prosecutorial decision engaging Article 3 ECHR. |
Referenced by DPP to show rarity of successful claims against prosecution decisions on human rights grounds. |
| Norris v Government of the United States of America (No 2) [2010] UKSC 9 |
Extradition and human rights considerations. |
Referenced but relevance limited. |
| R v G (Secretary of State for the Home Department intervening) [2008] UKHL 37 |
Whether Article 8 ECHR engaged by prosecution of juvenile for sexual offence. |
Demonstrated complexity and division of views on human rights engagement in prosecution decisions. |
| Ike v Turkey (2006) |
Interminable prosecutions breaching Article 3 ECHR. |
Used as exceptional example of prosecution breaching human rights. |
| R v Director of Public Prosecutions ex p Kebilene and others [2000] 2 AC 326 |
Proper forum for challenging prosecution decisions is criminal courts except in exceptional cases. |
Applied to forum question in this case. |
| R (Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin) |
Frequency and forum of judicial review challenges to prosecution decisions. |
Supported principle that challenges to prosecution decisions should normally be made in criminal courts. |
| Reg v Director of Public Prosecutions Ex parte C [1995] 1 Cr App R 136 |
Judicial review available for decisions not to prosecute where no other remedy exists. |
Used to support availability of judicial review for victims not parties to criminal proceedings. |
Court's Reasoning and Analysis
The court examined the legality of the DPP’s prosecutorial guidance and found it lawful and appropriate. It emphasized that policy formulation is the exclusive responsibility of the DPP, and courts should not substitute their judgment for that of the DPP. The court rejected the argument that the guidance was inadequate or inconsistent with international obligations, noting that the guidance properly incorporates consideration of children’s welfare and international standards.
Turning to the decision-making process, the court found that the Crown Prosecutor’s decision letter failed to demonstrate proper application of the guidance. Specifically, the letter did not adequately address or explain how the concerns raised in the multi-agency strategy group’s report—particularly regarding the adverse impact of prosecution on the therapeutic needs and welfare of all three children—were considered or outweighed. The absence of any meaningful engagement with these relevant factors rendered the decision unlawful and irrational.
The court rejected the DPP’s submission that the decision was merely a balancing exercise subject to judicial deference, pointing out that the failure to address key factors was patent and without answer. The court also found that subsequent reviews of the decision failed to cure these deficiencies.
Regarding the substantive challenge to the decision to prosecute on human rights grounds, the court acknowledged the complexity and scarcity of precedents where prosecutorial decisions to prosecute have been found to breach Articles 3 or 8 of the European Convention. It concluded that this case did not meet the high threshold required to establish a breach of these rights. The court declined to explore this issue further given the successful challenge on procedural grounds.
On the question of forum, the court held that while challenges to prosecutorial decisions by defendants are generally to be made through criminal courts, the Appellees, as victims and not parties to the criminal proceedings, have no such remedy. Therefore, judicial review in the Administrative Court is the appropriate and indeed the only forum to protect their interests. Given the intertwined nature of the claims, the court refused to decline jurisdiction over the Appellant’s claim.
Holding and Implications
The court DISMISSED the applications insofar as they challenged the legality of the DPP’s prosecutorial policy and guidance, holding the policy lawful and appropriate.
However, the court GRANTED the applications insofar as they sought to quash the Crown Prosecutor’s decision to prosecute the Appellant, on the ground that the decision-making process was flawed due to failure to properly consider and engage with relevant welfare concerns raised by the multi-agency strategy group.
The direct effect of this decision is that the prosecution decision against the Appellant is quashed and must be reconsidered in accordance with the proper application of the guidance and full consideration of the children’s welfare. The court did not establish any new legal precedent on the substantive human rights issues, emphasizing that the decision was based on procedural deficiencies in the prosecutorial decision-making process.