Tweet
I thought some members may find this high court judgement an interesting insight into the cps and their decisions. It offers some hope that the decision to prosecute is certainly not automatic when cases are considered properly and neither does the "victims right to review" (VRR) add any weight to weak cases that have been NFA'd. It does however suggest there is a bit too much bending over backwards for "victims"
The full judgement is here : http://www.bailii.org/ew/cases/EWHC/...2017/1768.html
Briefly, the complainant was not satisfied at the decision not to prosecute so exercised her right to have the decision reviewed which was again NFA'd. Unsatisfied with this, it was reviewed yet again and the decision was the same. The complainant then decided to take the DPP to court for a judicial review. She lost.
The following is an extract in which the defendant is the DPP/CPS and the IP (interested party) is the man she accused. D is the complainant.
THE FACTS
4) In short summary, the facts are these. In October 2013, D telephoned the police and reported that she had been abused by her former head master (IP), when she was a child at school. The allegations are of a historic nature, relating to the years 1979 – 1984, when D was aged about 5 – 11. The IP was head master of the school from 1964 to 1986.
5) The abuse allegedly took place in the IP's office under the guise of punishment for misbehaviour. D alleged that the IP would touch her naked bottom, or would strike it with his hand or a cane. As I understood it, on some occasions another girl was present in the office. D further alleged that on one occasion she was made to perform oral sex upon the IP when he was smoking his pipe and caning her; she was unable to say how old she was when this happened and also said that she believed the oral rape (as it would now be categorised) occurred more than once.
6) Pausing there, it may be noted that the Defendant has prosecuted the IP in relation to allegations made by two other women who made their allegations independently of D. Those allegations related to a period of time about ten years earlier than the allegations made by D and did not involve oral penetration. We were told at the hearing that the IP was acquitted on those charges.
7) Between October 2013 when D reported her allegations to the police and was interviewed, and 2015, the investigation does not seem to have progressed. That may or may not be the fault of the Constabulary concerned – but the cause of that delay is neither here nor there with regard to these proceedings, so no more need be said of it. At all events, D was interviewed again in February 2015. The case was then passed to the CPS for a charging decision.
8) In the event and as appears from her letter to D dated 24th September, 2015, Ms Stringer, a Senior Crown Prosecutor of Essex CPS, took the view that no charges should follow in relation to D's allegations.
9) In October 2015, pursuant to the VRR scheme, D sought a review of Ms Stringer's decision. The matter was allocated to Ms Michelle Brown, District Crown Prosecutor, CPS East of England who, by letter dated 22nd April, 2016, informed D that the IP would not be prosecuted.
10) It is fair to say that Ms Brown's review was affected by a degree of factual confusion as to whether D had declined to obtain a further psychiatric report. Further, both Ms Stringer and Ms Brown gave weight to a particular psychiatric report which, as subsequently appears, could not be relied upon.
11) D was dissatisfied with Ms Brown's review. The upshot was that the matter was further reviewed by Ms Verma, a specialist prosecutor of the CPS Appeals and Review Unit. It is Ms Verma's decision, communicated to D in July 2016, which is the subject of this claim for judicial review.
12) Ms Verma concluded, "after a careful and fully independent consideration of all the available evidence", that the original decision not to prosecute was correct. Ms Verma underlined that, in accordance with the Code for Crown Prosecutors, for the case to proceed, she needed to be satisfied that there was sufficient evidence for there to be a realistic prospect of conviction.
13) Ms Verma reviewed D's account of the alleged abuse and was aware of a letter from a psychiatrist, Dr Abdul-Hamid, stating that she had been diagnosed with Post Traumatic Stress Disorder ("PTSD") as early as 1993 "following other traumatic events in your life". Ms Verma distinguished the facts here from those relating to the other allegations made against the IP, where a prosecution had proceeded. She recorded that the IP, when interviewed, had denied the allegations, so that this was a case of one person's word against another. Ms Verma went on to say that the CPS "can and do prosecute cases of this nature which is common in cases involving sexual assaults" but emphasised that in "this type of case your credibility in terms of your transparency and accuracy are important".
14) Even making allowance for the age of the allegations (some 33 years) and the inevitable difficulties D would have in recalling the details, Ms Verma indicated that she was concerned with aspects of D's account. She went on to highlight "a couple of examples" taken from D's recorded evidence, as follows:
i) D was unable to say how many times she had been sexually assaulted by the IP or how frequently it occurred.
ii) D had said that there was no penetration but also said that the IP had made her perform oral sex on him, which would involve penetration.
iii) D said that she remembered performing oral sex on the IP once but went on to say it could have happened more than once.
iv) In broad terms, D was reluctant to say whether another child was present when she had been assaulted.
v) It was essential that witnesses "do not hold back potentially relevant information". Ms Verma was aware:
" …that outside of your ABE [i.e., Achieving Best Evidence] you did eventually give police details of 11 other people you believed had been abused by the suspect. You made no mention of these 11 witnesses in your 2 previous ABE interviews. The police were unable to trace 4 of the people you named from the details you provided. However, of the other 7 who the police did trace and spoke to none of them claimed to have witnessed any abuse by the suspect or claimed to have been abused by him.
One of the people you named specifically said that she had no recollection of either of you ever being sent to the Headmaster's office. Another of the girls you named as being a person that was abused by the suspect denied that the suspect had abused her. This information is undermining and amounts to material we would have to disclose to the suspect as potentially undermining evidence."
vi) There were inconsistencies in D's account as to what she had discussed with others, including the detail of her allegations. One of those to whom D had spoken said that D had named another girl who had been abused by the IP. When the police spoke to both these women, they each denied that they had been abused by the IP.
15) Ms Verma went on to note other aspects of D's evidence where there appeared to be a lack of clarity about what had factually taken place. Additionally, the police had contacted former teachers, deputy headmasters and secretaries, employed at the school at the relevant time. None provided evidence capable of supporting D's account. Furthermore:
" I have to consider material that would have to be disclosed as unused material in this case. This would include disclosing the previous allegations of rape and sexual assault that have not been formally made to police that are referred to in police reports and your medical records."
16) In the event, having "carefully considered" D's evidence and the lack of supporting evidence, Ms Verma was not satisfied that there was a realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors had not been met.
The full judgement is here : http://www.bailii.org/ew/cases/EWHC/...2017/1768.html
Briefly, the complainant was not satisfied at the decision not to prosecute so exercised her right to have the decision reviewed which was again NFA'd. Unsatisfied with this, it was reviewed yet again and the decision was the same. The complainant then decided to take the DPP to court for a judicial review. She lost.
The following is an extract in which the defendant is the DPP/CPS and the IP (interested party) is the man she accused. D is the complainant.
THE FACTS
4) In short summary, the facts are these. In October 2013, D telephoned the police and reported that she had been abused by her former head master (IP), when she was a child at school. The allegations are of a historic nature, relating to the years 1979 – 1984, when D was aged about 5 – 11. The IP was head master of the school from 1964 to 1986.
5) The abuse allegedly took place in the IP's office under the guise of punishment for misbehaviour. D alleged that the IP would touch her naked bottom, or would strike it with his hand or a cane. As I understood it, on some occasions another girl was present in the office. D further alleged that on one occasion she was made to perform oral sex upon the IP when he was smoking his pipe and caning her; she was unable to say how old she was when this happened and also said that she believed the oral rape (as it would now be categorised) occurred more than once.
6) Pausing there, it may be noted that the Defendant has prosecuted the IP in relation to allegations made by two other women who made their allegations independently of D. Those allegations related to a period of time about ten years earlier than the allegations made by D and did not involve oral penetration. We were told at the hearing that the IP was acquitted on those charges.
7) Between October 2013 when D reported her allegations to the police and was interviewed, and 2015, the investigation does not seem to have progressed. That may or may not be the fault of the Constabulary concerned – but the cause of that delay is neither here nor there with regard to these proceedings, so no more need be said of it. At all events, D was interviewed again in February 2015. The case was then passed to the CPS for a charging decision.
8) In the event and as appears from her letter to D dated 24th September, 2015, Ms Stringer, a Senior Crown Prosecutor of Essex CPS, took the view that no charges should follow in relation to D's allegations.
9) In October 2015, pursuant to the VRR scheme, D sought a review of Ms Stringer's decision. The matter was allocated to Ms Michelle Brown, District Crown Prosecutor, CPS East of England who, by letter dated 22nd April, 2016, informed D that the IP would not be prosecuted.
10) It is fair to say that Ms Brown's review was affected by a degree of factual confusion as to whether D had declined to obtain a further psychiatric report. Further, both Ms Stringer and Ms Brown gave weight to a particular psychiatric report which, as subsequently appears, could not be relied upon.
11) D was dissatisfied with Ms Brown's review. The upshot was that the matter was further reviewed by Ms Verma, a specialist prosecutor of the CPS Appeals and Review Unit. It is Ms Verma's decision, communicated to D in July 2016, which is the subject of this claim for judicial review.
12) Ms Verma concluded, "after a careful and fully independent consideration of all the available evidence", that the original decision not to prosecute was correct. Ms Verma underlined that, in accordance with the Code for Crown Prosecutors, for the case to proceed, she needed to be satisfied that there was sufficient evidence for there to be a realistic prospect of conviction.
13) Ms Verma reviewed D's account of the alleged abuse and was aware of a letter from a psychiatrist, Dr Abdul-Hamid, stating that she had been diagnosed with Post Traumatic Stress Disorder ("PTSD") as early as 1993 "following other traumatic events in your life". Ms Verma distinguished the facts here from those relating to the other allegations made against the IP, where a prosecution had proceeded. She recorded that the IP, when interviewed, had denied the allegations, so that this was a case of one person's word against another. Ms Verma went on to say that the CPS "can and do prosecute cases of this nature which is common in cases involving sexual assaults" but emphasised that in "this type of case your credibility in terms of your transparency and accuracy are important".
14) Even making allowance for the age of the allegations (some 33 years) and the inevitable difficulties D would have in recalling the details, Ms Verma indicated that she was concerned with aspects of D's account. She went on to highlight "a couple of examples" taken from D's recorded evidence, as follows:
i) D was unable to say how many times she had been sexually assaulted by the IP or how frequently it occurred.
ii) D had said that there was no penetration but also said that the IP had made her perform oral sex on him, which would involve penetration.
iii) D said that she remembered performing oral sex on the IP once but went on to say it could have happened more than once.
iv) In broad terms, D was reluctant to say whether another child was present when she had been assaulted.
v) It was essential that witnesses "do not hold back potentially relevant information". Ms Verma was aware:
" …that outside of your ABE [i.e., Achieving Best Evidence] you did eventually give police details of 11 other people you believed had been abused by the suspect. You made no mention of these 11 witnesses in your 2 previous ABE interviews. The police were unable to trace 4 of the people you named from the details you provided. However, of the other 7 who the police did trace and spoke to none of them claimed to have witnessed any abuse by the suspect or claimed to have been abused by him.
One of the people you named specifically said that she had no recollection of either of you ever being sent to the Headmaster's office. Another of the girls you named as being a person that was abused by the suspect denied that the suspect had abused her. This information is undermining and amounts to material we would have to disclose to the suspect as potentially undermining evidence."
vi) There were inconsistencies in D's account as to what she had discussed with others, including the detail of her allegations. One of those to whom D had spoken said that D had named another girl who had been abused by the IP. When the police spoke to both these women, they each denied that they had been abused by the IP.
15) Ms Verma went on to note other aspects of D's evidence where there appeared to be a lack of clarity about what had factually taken place. Additionally, the police had contacted former teachers, deputy headmasters and secretaries, employed at the school at the relevant time. None provided evidence capable of supporting D's account. Furthermore:
" I have to consider material that would have to be disclosed as unused material in this case. This would include disclosing the previous allegations of rape and sexual assault that have not been formally made to police that are referred to in police reports and your medical records."
16) In the event, having "carefully considered" D's evidence and the lack of supporting evidence, Ms Verma was not satisfied that there was a realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors had not been met.
Comment