S v The Director of Public Prosecutions

A decision by the Crown Prosecution Service to prosecute may be reviewed in exceptional circumstances. Judicial review is available where the decision disregards or clearly contradicts a settled public-interest policy of the Director of Public Prosecutions, or where no reasonable prosecutor could regard prosecution as being in the public interest.

The Administrative Court must not determine disputed factual questions, such as whether conduct was exploitative, as if exercising the criminal court’s sentencing jurisdiction. A prosecution involving a 15-year-old and a 12-year-old was not irrational merely because the defendant relied on immaturity, developmental disparity, alleged consent or guidance concerning youth offenders.

The claimant, aged 15 when he had sexual intercourse with a 12-year-old girl, was initially charged under section 5 of the Sexual Offences Act 2003. He sought judicial review of the CPS decision to continue that prosecution.

During the proceedings, the CPS undertook to amend the charge by replacing the section 5 offence with an offence under section 13, relating to conduct which would amount to sexual activity with a child under section 9 if committed by an adult. The original challenge therefore became moot, but the parties agreed that the court should consider the legality of the amended prosecutorial decision.

The central issue was whether the decision to prosecute under sections 13 and 9 was inconsistent with CPS guidance, discriminatory, or irrational under ordinary Wednesbury principles.

1. The original challenge was moot. The decision to prosecute under section 5 was no longer effective because the CPS undertook to seek amendment of the charge to one under section 13, involving section 9 conduct.
2. Review of prosecutorial decisions. The court applied the principle in R v Chief Constable of Kent and another, ex parte L, [1991] 93 Crim App R: in relation to juveniles, prosecutorial discretion is reviewable where the decision disregards or is clearly contrary to a settled public-interest policy of the Director of Public Prosecutions.
3. Convention arguments. Relying on G and R [2006] EWCA Crim 821, the court considered that the strict-liability character of section 5 did not infringe Article 6, and that the equivalent section 13 and section 9 offence would likewise not infringe it. The claimant accepted that his family circumstances did not engage Article 8.
4. Wednesbury review. The CPS guidance identified relevant factors including the parties’ ages, understanding and developmental parity, whether the activity was consensual or exploitative, the nature of the activity, and the welfare of both children. The court could not decide on judicial review whether the claimant had behaved exploitatively. It was sufficient that the prosecution had an arguable case that he knew the victim was much younger and that a reasonable prosecutor could regard the circumstances as exploitative and prosecution as being in the public interest.
5. The age difference, rather than the claimant’s gender, provided a rational basis for prosecuting him and not the victim. The challenge was dismissed. The claimant was ordered to pay the defendant’s costs, not to be assessed or paid without leave of the court, and a section 39 anonymity order was to be made.

The claimant obtained permission to apply for judicial review from Newman J on 15 March 2006. The Divisional Court dismissed the judicial review claim on 28 June 2006.