NXB v Crown Prosecution Service

Article 3 imposes a positive obligation to maintain and operate an effective system for investigating and prosecuting credible allegations of serious ill-treatment. It does not require every prosecution to continue to trial or every prosecutorial error or omission to result in damages.

A decision to withdraw a prosecution is assessed by public-law principles. The prosecutor must apply the evidential test in the Code for Crown Prosecutors, make an informed assessment of the evidence and likely defence, and act rationally. The court must respect the prosecutor’s expertise and must not substitute its own view. A successful Article 3 claim also requires proof of harm meeting the exacting Convention standard and a causal link to the State’s conduct.

NXB claimed damages from the Crown Prosecution Service under section 6 of the Human Rights Act 1998, alleging that the withdrawal of a prosecution for historic sexual offences against her was irrational, contrary to prosecutorial policy and inconsistent with the State’s positive obligation under Article 3.

The prosecution was abandoned on the day of trial after the CPS became aware that parts of a diary had been concealed and that NXB’s account concerning other relationships and the concealed material might be challenged. The central issues were whether the CPS’s decision failed the public-law test and, if so, whether it breached Article 3.

1. The claim was dismissed. The CPS’s decision to offer no evidence on all seven counts was neither irrational nor founded on an unlawful policy, a material failure to follow clear policy, or a misunderstanding of the Code for Crown Prosecutors.
2. The decision whether to continue or withdraw a prosecution requires an informed judgment about how the case is likely to fare before a jury. The prosecutor must assess the strength and reliability of the evidence and the likely defence, applying the Code’s realistic-prospect-of-conviction test. The court’s role is supervisory. It must not substitute its own assessment, particularly where the decision involves predictive judgments about a developing trial.
3. The wide prosecutorial discretion remains subject to public-law review where there is an unlawful policy, failure to follow a clear and settled policy, irrationality, error of law or comparable abuse of power. Review is sparingly exercised, although the threshold must not be so high as to deny an effective remedy.
4. The CPS had considered the concealed diary material, NXB’s credibility, the letters, other witness evidence and the possible course of the trial. Its conclusion that the evidential prospects had materially deteriorated was reasonably open to it. The fact that another decision-maker might have reached a different conclusion was insufficient.
5. For an Article 3 claim arising from withdrawal of a prosecution, the court must consider the nature of the alleged breach, whether it meets the exacting Convention standard, the harm suffered and the causal link. Individual criticisms of decision-making, or a regrettable collapse of a prosecution, do not automatically establish a breach by the State. No systemic failure to investigate or prosecute historic sexual abuse was shown.

First-instance decision. The claim was issued on 23 May 2012 and amended to proceed against the Crown Prosecution Service alone.