PW & Ors v REGINA

Factual and Procedural Background

An extensive police investigation was conducted into sexual exploitation allegedly committed by young male members of the travelling community, resulting in an 82-count indictment charging 23 defendants with offences including rape, trafficking, assault by penetration, and making indecent photographs of a child. The vast majority of offences related to one complainant, L, aged 15 at the time. Due to the volume, the indictment was split into at least three trials.

The first trial involved a 40-count indictment against eight defendants and ended with a ruling that there was no case to answer for seven defendants. L was deemed an inherently unreliable witness, having been contradicted and found to have lied extensively. The Crown subsequently abandoned reliance on L as a witness for future trials, effectively ending all contact sexual offence prosecutions.

The Crown then pursued prosecutions based on indecent images of L recovered from mobile phones, bringing a 15-count indictment against 10 defendants without calling L as a witness. The Crown intended to prove these counts solely by reference to the images. Defence submissions argued that proceeding without L's evidence would be an abuse of process, including claims of unfair trial and a second bite at the cherry.

The trial judge upheld the defence submissions and stayed the proposed indictment on grounds of abuse of process. The Crown sought leave to appeal this ruling under Section 58 of the Criminal Justice Act 2003 ("the 2003 Act"). This appeal concerns whether the court has jurisdiction to hear the appeal and the merits of the stay for abuse of process.

Legal Issues Presented

1. Whether the court has jurisdiction to hear the Crown’s appeal under Section 58 of the Criminal Justice Act 2003 given the procedural posture and identification of rulings.
2. Whether the trial judge was correct to stay the indictment on grounds of abuse of process.
3. Interpretation of the mens rea requirement for offences under Section 1(1)(a) of the Protection of Children Act 1978 in relation to making indecent images.
4. Whether the absence of the complainant as a witness renders the trial unfair.
5. Whether the Crown’s decision to prosecute was disproportionate or an abuse of process.
6. Whether the Crown’s amendment or addition of counts after the first trial constituted an abuse of process.

Arguments of the Parties

Appellant's Arguments

• The Crown contended that the court has jurisdiction under Section 58 to hear the appeal as the judge’s ruling on abuse of process qualifies as a "ruling in relation to a trial on indictment".
• The Crown argued that the mens rea for the offence under Section 1(1)(a) does not require knowledge that the image depicts a person under 18 where the image is made by photographing or filming.
• The Crown maintained that the absence of L as a witness does not make the trial unfair since the prosecution relies on the images themselves and other evidence.
• The Crown submitted that the judge erred in considering proportionality and public interest as grounds for staying the indictment, as such decisions are for the Crown Prosecution Service (CPS), not the court.
• The Crown argued that proceeding on indecent image counts after the first trial is not an abuse of process because the issues had not been previously tried and the Crown had served relevant evidence in advance.
• The Crown sought leave to appeal on specified counts but did not pursue appeal on others, resulting in acquittals on those counts.

Respondents' Arguments

• The respondents argued that the Crown’s prosecution without calling L as a witness would be unfair and an abuse of process.
• They contended that the Crown was seeking a second bite at the cherry after losing the first trial.
• They submitted that the mens rea should include knowledge that the image was of an underage child, aligning with the defence submissions.
• Some respondents argued that those under 18 involved in the filmed activities should be regarded as persons to be protected rather than prosecuted.
• They challenged the validity of the indictment and the procedural compliance required for the appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed jurisdiction under Section 58 of the 2003 Act, concluding that the judge’s ruling staying the indictment for abuse of process was a valid "ruling in relation to a trial on indictment" and that the Crown had complied sufficiently with procedural requirements to seek leave to appeal. The court rejected submissions that other rulings not identified at the time were before it, limiting the appeal to the single ruling on abuse of process.

The court clarified that the formal validity of the indictment was not undermined by the absence of a signature due to changes in legislation and the introduction of a paperless digital system, which treats an electronically entered bill of indictment as valid.

On the mens rea issue, the court distinguished cases involving making images by downloading (where knowledge of the indecent nature and age is required) from cases involving taking photographs or filming, where the mental element is satisfied by the deliberate act of making the image. The court rejected the judge’s acceptance of the defence argument requiring knowledge of L’s age for principal offenders.

The court held that participation in the sexual activity depicted can give rise to an inference of involvement in making the images, and whether a defendant is a principal or accessory is a matter for trial. The prosecution must prove knowledge of age for accessories if required, but this is an evidential and legal issue for the trial judge.

The court found the judge erred in treating proportionality and public interest considerations as grounds to stay the prosecution, reaffirming that such decisions rest with the CPS unless there is misconduct or oppression.

Regarding the absence of L as a witness, the court concluded that since L was an unreliable witness and the prosecution relies on the images and other evidence, the absence does not render the trial unfair. Defendants retain the tactical choice to give evidence or not, and the court’s trial process safeguards fairness.

The court addressed the particular case of one respondent (PQ) who had images sent to him via a WhatsApp group without direct involvement in filming or participation. It held that the judge’s perception of unfairness was insufficient to establish abuse of process and declined to interfere with the charge selection, but refused leave to appeal this count, ordering acquittal accordingly.

The court rejected the judge’s finding that pursuing indecent image charges after the first trial was an abuse of process. It distinguished this case from precedent involving re-trials on previously adjudicated facts, noting that the indecent image counts had not been tried and that the Crown had served relevant evidence well in advance. The court held the Crown was entitled to adapt its case in response to developments without abusing process.

Finally, the court granted leave to appeal and reversed the judge’s stay on abuse of process for specific counts, ordering that proceedings resume on those counts, while ordering acquittals on others where the Crown did not pursue appeal.

Holding and Implications

The court’s final decision is to GRANT LEAVE TO APPEAL and to REVERSE the trial judge’s ruling staying the indictment on grounds of abuse of process in relation to counts against specified respondents (PW, PC, LD, AM, JP, and MC). The proceedings on those counts are ordered to resume in the Crown Court.

The court ordered the acquittal of respondents BC and PQ on counts 9 and 12 respectively, as the Crown did not pursue appeal on those counts.

The decision clarifies the application of mens rea for offences under Section 1(1)(a) of the Protection of Children Act 1978, confirming that knowledge of age is not required for principal offenders who made images by photographing or filming. It also affirms the limited role of the court in reviewing prosecutorial decisions on proportionality and public interest absent misconduct.

No new precedent was set beyond the application of existing principles to the facts. The ruling reaffirms the court’s approach to abuse of process stays, emphasizing that such stays are rare and require strong justification. The case underscores the procedural requirements for appeals under Section 58 of the 2003 Act and the effect of modern indictment procedures.