CM, R (On the Application Of) v Crown Prosecution Service

Judicial review of an independent prosecutor’s decision is available only in highly exceptional circumstances. In cases involving children, the court may intervene where the decision is irrational, materially based on a mistake of fact, or made regardless of, or clearly contrary to, a settled prosecution policy. The prosecutor must consider the child’s age, welfare and best interests, the relative ages and maturity of the child and victim, the impact of prosecution, and any coercion, exploitation or abuse of trust. A failure to record every consideration expressly is not necessarily a failure to follow policy where the decision-making material shows that the matters were substantively considered. The assessment of whether prosecution is in the public interest remains for the Crown Prosecution Service.

The claimant, aged 10 years and 10 months when the alleged sexual offences were committed, challenged the Crown Prosecution Service’s decision to prosecute him in the Youth Court. The CPS had reviewed the case several times, including after an AIMS report recommending a youth conditional caution and after a psychiatric report concerning the likely impact of prosecution. The claimant relied on irrationality, mistake of fact concerning the age difference between him and the complainant, and failure to follow CPS policy concerning young offenders. Permission for judicial review was granted at an oral hearing and the claim was expedited because the criminal trial was imminent.

1. The claim was dismissed. The court emphasised that intervention in a prosecutorial decision is confined to highly exceptional cases. In juvenile cases, judicial review may be available where the decision was made regardless of, or clearly contrary to, a settled CPS policy, but the court does not itself make the prosecutorial decision.
2. The CPS was entitled to take account of the claimant’s continuing denial, the resulting difficulty in providing effective therapy, the seriousness of the allegations, the claimant’s history of sexually inappropriate behaviour, and the possibility of influence amounting to non-violent coercion. The CPS was not required to accept an expert’s opinion that prosecution was not in the public interest. That public-interest assessment belonged to the CPS.
3. A material mistake of fact may vitiate a decision. The prosecutor mistakenly recorded the age gap as four years rather than two years and three months. The court nevertheless found that the mistake was not material. The prosecutor had discussed the case on the correct approximate age gap, and the claimant’s relative age, greater sexual experience and influence over the younger complainant remained relevant.
4. The CPS had complied with its settled policy. Although the decision documents did not expressly recite that the claimant was aged 10 at the time of the alleged offences, the surrounding history showed that his age, welfare and interests had been considered. The omission was a matter of form rather than substance.
5. Lord Justice Bean delivered the judgment, and Mr Justice King agreed. The application for judicial review was dismissed. The claimant was permitted detailed assessment of legal aid costs.

Permission for judicial review was initially refused on paper but was granted at an oral hearing. The claim was then heard on an expedited basis by the Divisional Court because the Youth Court trial was imminent.