Case No: CO/3071/2849/2015
Neutral Citation Number: [2015] EWHC 2868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/10/2015

Before :

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE WILLIAM DAVIS
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Between :

	S	Claimant	
	- and -		
	CROWN PROSECUTION SERVICE	Defendant	
			
	S		
	- and -		
	OXFORD MAGISTRATES’ COURT	Claimant	
	- and -		
	CROWN PROSECUTION SERVICE	Defendant	
	OXFORD CROWN COURT	Interested Parties	

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T.W.R. Raggatt Q.C. and Jonathan Barker (instructed by Murria Solicitors) for the Claimant
Sarah Whitehouse Q.C. (instructed by Crown Prosecution Service Appeals Unit) for the Defendants

Hearing date: 7 October 2015
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Judgment
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION : 
1.	These conjoined applications for judicial review challenge decisions of the Crown Prosecution Service (“CPS”), dated 13 May 2015, to prosecute the claimant (to whom I shall refer as “S”) for the offence of rape and of District Judge Pattinson, dated 16 June 2015, sitting at the Oxford Magistrates Court to send the case to the Oxford Crown Court for a preliminary hearing pursuant to s. 51 of the Crime and Disorder Act 1998, rather than adjourn the hearing pending the determination of the first challenge to the decision of the CPS.  A further issue has arisen as to the material which the CPS should have disclosed to S in relation to the decision itself.  It raises important questions as to the role of the court in the superintendence by judicial review of prosecutorial decisions.
2.	Having regard to the urgency of the matter, on 23 July, Ouseley J ordered that the applications for permission be listed with the hearing to follow.  On the basis that criminal proceedings are active (within the meaning of the Contempt of Court Act 1981), the name of the applicant has been anonymised purely for the purposes of the proceedings before this court.  That was required in order that the issues relevant to these proceedings could be fully rehearsed without risking those criminal proceedings (if they were to continue).  This order will lapse at the conclusion of the criminal proceedings unless the subject of specific application back to this court. 
3.	At the conclusion of the hearing on the 7 October 2015, I announced the court’s decision that the applications by S for disclosure and for permission to apply for judicial review were dismissed.  I did so to prevent any further delay to the continuing criminal proceedings.  I now provide my reasons for that decision.
The Facts
4.	S, who at the relevant time was 18 years of age, is a student at Oxford University.  On the 5 February 2014, he was visited in Oxford by a 19 year old female friend of some years standing (to whom I shall refer as “A”) who had been a friend of his for a number of years.  On that evening, the two went to a club.  A drank a significant amount and, on the following day, was to say that she had no memory of any event between entering the club and waking up the next morning.  That she had drunk far too much is beyond question: her state was apparently a matter of such concern to staff at the club that they considered that she might need medical assistance.  CCTV footage from outside the club appeared to show her to be incapable of standing without assistance.  
5.	A awoke in the S’s bed on the following morning.  She asked S whether they had had sex to which he replied that they had.  By the end of that day, A had made a complaint of rape to Thames Valley Police and, on 7 February, S was arrested.  He appeared to confirm that he had had sexual intercourse with A when he said to the custody officer that “this all happened because (she) didn’t want to tell her father that we had sex”.  In the prepared statement provided in the course of his police interview he stated unequivocally that he had had sexual intercourse with A.  However, he denied that the sexual activity had been non-consensual.
6.	In due course, Thames Valley Police referred the case to the CPS for a charging decision.  As well as the material set out above, the CPS had evidence from a toxicologist that the blood alcohol level of A was close to four times the limit permitted for driving; a used condom had also been recovered from the bin in the S’s room.  The evidence as a whole was considered by two CPS lawyers from the Thames and Chiltern who specialise in advising in such cases.  By October 2014, both had concluded that the evidence was insufficient to provide any realistic prospect of conviction.  S was notified of this decision and told that he was to be released from bail without charge.  This notification was in writing by a pro forma letter dated 18 October 2014.  The letter indicated the reason why he was to be released without charge – insufficient evidence to provide a realistic prospect of conviction currently – but also stated that the decision “may be reconsidered if a review of the decision indicates that it was clearly wrong and should not be allowed to stand.”
7.	A also was notified of the CPS decision.  On 3 November she exercised her right under the Victim Right to Review Scheme to request a review of the decision not to prosecute S.  Initially there was an attempt to resolve the request locally as provided for within the Scheme.  This attempt failed.  The case was transferred on the 11 December 2014 to the Crown Prosecution Service Appeal and Review Unit in London for review by an independent prosecutor.  That review was carried out by Susan Egan, a specialist prosecutor based at that Unit.  She did not consider any evidence beyond that considered by the initial reviewing lawyers.  Having reviewed the available evidence, Ms Egan concluded that the evidence was sufficient to provide a realistic prospect of conviction.  Her view was that the original decision (said to be based on the fact that there was no evidence of what specific offences had been committed and insufficient evidence to prove lack of consent and to rebut the account S provided) was wrong and that, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision not to proceed.  
8.	The statement provided for these proceedings by Ms Egan goes into the evidence in rather greater detail than is necessary to summarise in this judgment but it amplifies the reason for her conclusion in these terms:
“There is evidence that vaginal intercourse took place; it comes from the suspect himself.  The used condom found in his bin is supportive of the suggestion that they had sex.  There is, in my view, ample evidence of [A’s] incapacity to consent.  Firstly, there is her own evidence of her lack of memory; secondly, there is evidence of the bar staff; thirdly the fact of the attendance of the paramedic and her findings and, finally, the toxicology report.  Most pertinently, the decision not to prosecute was wrong because the issue in question in this case – whether the complainant consented or had capacity to consent – is a matter which ought properly to be decided by a jury.”
9.	This last conclusion was supported by an analysis of the decisions of this court in R v Bree [2007] 2 Cr App R 13, [2007] EWCA Crim 804 and R v H [2007] EWCA 2056.  That decision was supported by the Deputy Chief Crown Prosecutor responsible for the Thames and Chiltern area.  She authorised charging S with a single offence of rape; this led to his appearance in Oxford Magistrates’ Court on the 16 June 2015.
10.	On 15 June 2015, solicitors instructed by S wrote to the Oxford Magistrates’ Court inviting the court to adjourn any hearing due to take place the following day because S intended forthwith to apply for permission judicially to review the decision made by the CPS to charge him.  The letter further submitted that, in the event of such an application being made, the magistrates’ court would have no jurisdiction to take any step other than to adjourn the criminal proceedings pending the outcome of that application.  An application in the Administrative Court was filed later that day.  
11.	Before the District Judge, it was argued that a decision to send the case to the Crown Court for trial would prejudice the application for permission for judicial review.  He refused to adjourn providing written reasons to the effect that the interests of justice did not require him to do so. Rather, the Criminal Procedure Rules identified the need to deal with all cases efficiently and expeditiously and to avoid unnecessary hearings.  He found that the decision to send the case for trial could not affect adversely or prejudice any proceedings for judicial review.
12.	In relation to the decision to prosecute, S contends that the CPS acted unreasonably and irrationally in concluding that an earlier decision not to charge him was wrong.  As for the refusal to adjourn the hearing in the magistrates’ court, it is argued that the District Judge acted beyond his powers in sending the case to the Crown Court for trial when the decision to prosecute was the subject of an application for permission to apply for judicial review.  I deal with these applications in turn.
The Right to Review
13.	Article 11 of Directive 2012/29/EU dated 25 October 2012 (which follows Article 10 of the Draft EU Directive dated 18 May 2011) makes it clear that: 
“1.   Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.
2.   Where, in accordance with national law, the role of the victim in the relevant criminal justice system will be established only after a decision to prosecute the offender has been taken, Member States shall ensure that at least the victims of serious crimes have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.
3.   Member States shall ensure that victims are notified without unnecessary delay of their right to receive, and that they receive sufficient information to decide whether to request a review of any decision not to prosecute upon request.”
14.	Following the Draft Directive and the decision in R v Killick [2012] 1 Cr App R 10, [2011] EWCA Crim 1608, the Director of Public Prosecutions publicly consulted upon and then (with effect from 5 June 2013) issued Guidance on a Victims’ Right to Review.  This specifically entitles any victim to seek a review of a qualifying decision (which includes a decision not to prosecute). The relevant parts of the Guidance are as follows:
“29. Where the victim’s dissatisfaction has not been resolved locally, the decision will be subject to an independent review by the Appeals and Review Unit or relevant Chief Crown Prosecutor as appropriate
30. This review will comprise a reconsideration of the evidence and the public interest i.e. the new reviewing prosecutor will approach the case afresh to determine whether the original decision was right or wrong.
31. The reviewing prosecutor will only take account of information available at the time the qualifying decision was made. A victim wishing to raise new evidence/information should do so with the investigating officer, not the reviewing prosecutor.
32. It is an important principle that people should be able to rely on decisions taken by the CPS as being final and that such decisions should not ordinarily be revoked. However, we also recognise that a careful balance must be struck between providing certainty to the public in our decision making and not allowing wrong decisions to stand. It is right therefore, in order to maintain public confidence in the criminal justice system, that the CPS will sometimes have to look again at a prosecution decision, and change it if it is found to be wrong. If a decision is found to be wrong, it may be necessary to commence or re-institute criminal proceedings.
33. The Victims’ Right to Review scheme provides a victim with a specifically designed process to exercise the right to review. The reviewer must conduct a re-review of the case afresh, and in order to overturn a decision not to prosecute they must be satisfied: 
 that the earlier decision was wrong in applying the evidential or public interest stages of the Full Code Test (as set out in the Code for Crown Prosecutors); and 
 that for the maintenance of public confidence, the decision must be reversed.”
15.	Is the decision of Ms Egan open to challenge?  There is no doubt that decisions of the CPS are amenable to judicial review: see, for example, R v DPP ex parte C [1995] 1 Cr App R 136 at 140-141.  The potential grounds of challenge are, however, narrow not least because of the recognition of the constitutional significance of its independence. Clearly, if a policy is unlawful, the courts will intervene.  The same approach will be adopted if the CPS fail to act in accordance with its set policy or they reach a decision not open to a reasonable prosecutor.  When considering such challenges, it is clear that they will succeed only in very rare cases: see L v DPP [2013] EWHC 1752 (Admin). 
16.	In the course of the hearing Mr Raggatt Q.C. for S argued that in one respect the relevant policy – the Guidance to which I have referred – is unlawful albeit that this was not an argument he had raised in his substantial written submissions.  The Guidance provides that a suspect/defendant is not to be made aware of a victim’s request for a review during the review process.  This means that a suspect/defendant can have no opportunity to make representations to the independent reviewing prosecutor.  The submission made by Mr Raggatt is that this is contrary to natural justice.  
17.	I reject that submission.  The principal policy reason for this provision in the Guidance is that the Guidance requires the independent prosecutor to take account only of information available at the time of the decision under review.  That information will include any explanation put forward by the suspect/defendant in the course of the investigation prior to the decision under review.  Natural justice does not require a decision maker who is assessing only pre-existing material and who is prohibited from taking into account new evidence or information from the party seeking the review to invite a response from a third party who may be affected by the result of the review.  The Guidance is a lawful policy in its entirety.
18.	What then of the decision made in the particular circumstances of this case?  Mr Raggatt argues that “there are two distinct and mutually exclusive decisions by the CPS which accordingly necessitates an independent review of both decisions which as stated are mutually exclusive”.  It is submitted further that it is for the CPS to prove to the criminal standard that the original decision was “Wednesbury unreasonable” or wrong in law and that, in the absence of such proof, the CPS had no power to interfere with the original decision. 
19.	With respect to Mr Raggatt, I fundamentally disagree with these propositions and reject them also.  As I have concluded, the Guidance is a lawful policy, faithfully reflecting the Directive and the approach identified in Killick.  It is clear from paragraph 30 of the Guidance that the reviewing lawyer must approach the decision ‘afresh’ that is to say from first principles.  From that approach a conclusion will emerge from which it will be apparent whether the reviewer concludes as a matter of judgment that the original decision was right or wrong.  Whether the evidence in any particular case satisfies the evidential test and whether the public interest justifies a prosecution is a matter of judgment about which prosecutors might differ (see L v DPP (supra) at para. 41).  Thus, the decision to be considered is the decision made by Susan Egan, namely, was that decision one that was open to a reasonable prosecutor.   
20.	The requirement which Mr Raggatt would impose on the CPS to prove to the criminal standard that the original decision was unreasonable or wrong in law is misconceived.  The practical effect of such a requirement would be to impose on the CPS a duty to prove its case in judicial review proceedings whereas the function of the review (as required by the Directive and the authorities) is to provide a mechanism for a fresh reconsideration of the facts.  The inevitable satellite litigation which the approach of Mr Raggatt would generate is wholly inappropriate both to the concept and the proper approach.
21.	Posing the correct question in the context of the circumstances of this case, the answer is clear.  Susan Egan considered the available evidence fully and properly.  She correctly identified evidence from which a penetrative sexual act could be inferred, and properly approached the law which requires the issue of capacity to consent to fall within the provenance of the jury, taking into account all of the evidence.  Since there was sufficient evidence to suggest that A lacked capacity to give her consent to sexual intercourse, there was evidence to demonstrate lack of consent. On that basis, she concluded that this pre-eminently was a case to be tried.  As a result, she inevitably considered the approach taken by the original decision makers was wrong and was entitled to conclude that this was a case (and, indeed, a type of case) in which maintenance of public confidence in the criminal justice system required a prosecution.
22.	Mr Raggatt also argues that there is a lack of transparency in the evidence of Susan Egan.  He submits that her failure to explain why her decision was made only in April 2015 when she had been instructed to conduct a review in December 2014 should lead to an inference adverse to the CPS.   The precise nature of the adverse inference for which Mr Raggatt contends is not clear to me.  At one point he appeared to suggest that this court should infer that the delay meant that the CPS had given in to pressure from A and/or her family.  That is not conceivably a proper inference to be drawn from the chronology.  The delay which occurred is not to be commended and the CPS should strive to maintain the timetable that it has set for itself.  Equally, it is not a matter which affects the reasonableness of Ms Egan’s decision, based solely on her consideration of the evidence; her statement on the relevant issues is perfectly clear.  
23.	It follows that I do not consider it to be remotely arguable that the decision made by Ms Egan was irrational or unreasonable and I would refuse the application to apply for judicial review of this decision.  Having said that, however, I emphasise that S strenuously denies the offence and nothing I have said assumes the contrary: it will be for the prosecution to prove its case at trial and not for this court to comment one way or the other.
24.	In deference to Mr Raggatt, I ought to deal with two other arguments which he developed.  The first concerned his request for disclosure of all documents relating to the original decision not to prosecute and to communications between A and the CPS; he was permitted to argue this point afresh although in interlocutory proceedings after he had been listed to hear the application with me, William Davis J had ruled against the application.  The suggestion that William Davis J should therefore not be a part of the constitution which determined the applications for permission was not pursued. 
25.	Mr Raggatt cited Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 in support of his request.  Tweed primarily concerned the proper extent of disclosure in judicial review proceedings where proportionality was in issue in relation to a convention right under the ECHR.  In such proceedings this court may be required to assess the balance which the decision maker has struck and not simply whether the decision is within the range of rational decisions.  Even in those cases orders for disclosure will be the exception rather than the rule: see per Lord Brown at para. 56 in Tweed.  Where (as here) the issue is whether the decision of the CPS was one open to a reasonable prosecutor and the decision maker has provided evidence of the basis for her decision, the interests of justice do not require further disclosure in order to assess the reasonableness of the decision.
26.	The second argument was linked to the contention advanced orally that the Guidance was unlawful.  It concerned whether the CPS was under a duty to enquire of S whether he had acted to his detriment before deciding that he should be charged.  I have already explained the sound policy reason for the independent prosecutor not making any such enquiry.  The issue of detriment can only be relevant to the charging decision and the subsequent prosecution which may flow from the independent prosecutor’s review and then only if there has been some prior unequivocal representation that the suspect/defendant will not be prosecuted.  
27.	Putting to one side the unchallenged evidence of Det Con Hodgetts that, when informing S’s solicitor of the decision not to prosecute, he said that it was subject to further evidence or if “the decision was found to be seriously wrong” and the terms of the letter of the 18 October 2014, there is no arguable basis for the duty asserted.  If S acted to his detriment after an unequivocal representation was made that he would not be prosecuted, that could provide him with grounds to argue an abuse of process before the trial judge.  A failure to establish that position if it existed provides no basis for challenging the charging decision.
28.	Reference to this material takes me to a different aspect of this area of CPS decision making.  As I have indicated, L v DPP (supra) makes the point in the context of a challenge to a decision not to prosecute that the likelihood of successfully challenging a charging decision will be “very, very small” (see Sir John Thomas P at para. 16).  In that context, of course, an application for judicial review will be the only possible remedy available to the party aggrieved by the review decision.  In this case the review has led to a prosecution which gives rise to very different considerations.  Although I recognise the personal impact of a prosecution on S (with the corresponding potential significance to A of her allegation being tried), the trial process provides the protection that the law affords to those charged with crime.  If it is alleged that the prosecution is an abuse of process, the trial judge will determine it.  Deficiencies in the evidence can be exposed either at dismissal proceedings or at the close of the prosecution case.  Suffice to say that I consider it difficult to conceive any circumstance in which the type of decision made in this case might be subject to successful judicial review. 
29.	In that regard, an analogy can be found from the approach of the courts to a decision to continue a prosecution notwithstanding concern expressed by the trial judge that the offence contravened rights under the ECHR (prior to the coming into force of the Human Rights Act 1998).  In R v DPP ex parte Kebilene and others [2000] 1 Cr App R 275, having taken advice, the D.P.P. decided to continue a prosecution in just such circumstances and an unsuccessful attempt was made to review that decision.   Lord Steyn observed (at 313G) that although judicial review was available in relation to a decision not to prosecute, that situation was “wholly different … because in such a case there is no other remedy”.  
The Decision of the District Judge
30.	The separate challenge to the decision of District Judge Pattinson falls because the challenge to the decision of the CPS fails.  In any event, however, s. 51(1) of the Crime and Disorder Act 1998 is expressed in mandatory terms (subject to the power to adjourn contained in s. 52(5) of the Act).  Although Mr Raggatt argues that the decision to send the case was ultra vires, the District Judge correctly concluded that it did not prejudice the proposed application for judicial review and could not affect it.  
31.	If the threat of judicial review necessarily required magistrates to adjourn in all cases, both delay and unnecessary additional hearings would result.  That is neither in the public interest nor does it assist in the efficient disposal of the work.  If the circumstances are such that there is particular prejudice in the criminal case proceeding pending judicial review, an application should be made in the judicial review proceedings for such relief.  For all those reasons the case against the decision of the District Judge is unarguable and I would refuse the application for permission to apply for judicial review of this decision.
Conclusion
32.	Although I can well understand that S was and remains concerned that the impact of being a defendant in criminal proceedings arising out of an allegation of rape will be damaging whatever the outcome, this is a consequence of the operation of the law prescribed by Parliament.  The specific decision following the review in this case, whatever the outcome of the trial (which I do not in any sense prejudge), is entirely in accordance with the Directive and Guidance.  It is lawful.  Although the court has been concerned simply with applications for permission which, subject to the views of my Lord, Mr Justice William Davis, have been refused, this judgment may be cited as authoritative in relation to the proper approach to the Guidance and to claims made in respect of decisions to charge where the original decision was not to charge.
MR JUSTICE WILLIAM DAVIS:
I agree.