E & Ors, R (on the application of) v The Director of Public Prosecutions

A prosecutorial policy is not unlawful merely because it does not set out every potentially relevant factor in detail. The formulation of prosecutorial policy is for the Director of Public Prosecutions, while the court reviews its legality and the lawfulness of its application.

At the public-interest stage, prosecutors must balance the interests and welfare of the child defendant, child victims and the public. They must engage with material evidence about the consequences of prosecution, including effects on emotional well-being and therapeutic recovery. A decision letter must make it possible to understand whether relevant matters were considered, rejected, or outweighed. Failure to engage with those matters renders the decision unlawful and justifies quashing it.

Three sisters challenged the Director of Public Prosecutions’ decision to prosecute E, aged 12 when the alleged sexual offences occurred, in relation to sexual conduct involving her younger sisters S and R, aged 3 and 2 respectively.

The challenge concerned the legality of the DPP’s policy, the adequacy of the Crown Prosecutor’s reasoning at the public-interest stage, the alleged disproportionality of prosecution, and the appropriate forum. The Administrative Court also considered whether S and R, as victims but not defendants, had an independent claim for judicial review.

1. Policy legality. The challenge to the DPP’s policy and guidance failed. Parliament had entrusted prosecutorial policy to the DPP, not the courts. The relevant provisions of The Code for Crown Prosecutors and associated guidance provided a lawful framework requiring attention to children’s interests, welfare, health, agency views and the public interest. The policy was not invalid merely because it did not expressly identify every factor relied upon by the claimants. A failure to give proper effect to relevant international obligations in an individual case might make that decision unlawful, but would not itself invalidate the policy.
2. Decision-making process. The Crown Prosecutor’s decision was quashed. The strategy-group report identified substantial effects of prosecution on all three children, including delay to essential therapy, harm to recovery, risks to family support and the possible distortion of E’s understanding of her own culpability. The decision letter referred to the report only in relation to the parents’ likely hostility. It did not explain how the report’s material findings about the children’s welfare had been considered or outweighed. The court could not tell whether those matters had been overlooked, treated as irrelevant, rejected, or accepted but outweighed. The later reviews did not cure the defect.
3. The Code and guidance required a proper balancing of the defendant’s, victims’ and public interests. They did not require the prosecutor to seek out the victim’s views, or to give priority to the victims’ interests. “Physical or mental health” included emotional well-being.
4. Convention arguments. The court did not finally determine whether the prosecution engaged Articles 3 or 8 of the European Convention. It observed that the claim faced substantial difficulties: there was no precedent for such a claim succeeding in relation to a first offence properly subject to the criminal law; the circumstances appeared far below the Article 3 threshold; and R v G created formidable obstacles under Article 8. In criminal proceedings, those provisions were more likely to arise in relation to sentence than prosecution.
5. Forum. S and R had a free-standing claim because they were not defendants and had no standing or remedy in the Crown Court. The Administrative Court was therefore the appropriate, and only effective, forum for their claim. E’s closely intertwined claim was properly heard with it. Both applications succeeded to the extent that they sought to quash the prosecution decision.