EAD, R (on the application of) v Director of Public Prosecutions

Judicial review of a CPS charging decision is available on conventional public-law grounds, including unlawful policy, failure to follow settled policy and perversity, but intervention is exceptional. The Full Code Test requires an objective assessment of whether the evidence gives rise to a realistic prospect of conviction. Prosecutors must consider the evidence as a whole, including credibility, reliability, inconsistencies, possible explanations for delayed or developing accounts, and all reasonable lines of inquiry. Guidance concerning trauma and child sexual abuse informs that assessment but does not require every inconsistency to be treated as explicable or every case to be prosecuted. A careful and rational decision that the evidential stage is not met will ordinarily withstand review.

The claimant sought judicial review of the CPS decision, following a Victim’s Right to Review process, to uphold a decision not to prosecute his older cousin for alleged childhood sexual offences. The CPS concluded that the claimant’s later account materially differed from his earlier accounts as to the duration, frequency and locations of the abuse, and that the evidence did not provide a realistic prospect of conviction.

The claim advanced five grounds, alleging irrational treatment of inconsistencies, failure to assess credibility holistically, irrational treatment of the cousin’s apparent admissions, failure to pursue a reasonable line of inquiry concerning the cousin’s father, and breach of the state’s obligations under article 3 of the European Convention on Human Rights and Fundamental Freedoms.

1. The claim was dismissed. The CPS decision was lawful and rational.
2. The court may review a CPS charging decision where the DPP has applied an unlawful policy, failed to follow settled policy, or reached a perverse decision that no reasonable prosecutor could have reached. The power is exercised sparingly because charging decisions are entrusted to an independent prosecuting authority.
3. The evidential stage of the Full Code Test asks whether an objective and properly directed tribunal is more likely than not to convict. The prosecutor must assess the evidence, including likely defences, admissibility, reliability, credibility and other material capable of affecting sufficiency.
4. The CPS had properly considered its guidance on rape, serious sexual offences, child sexual abuse and trauma. That guidance required careful consideration of whether an account might develop over time, but did not require the CPS to accept that all inconsistencies were capable of explanation. The differences between an initial account of two incidents at two addresses and a later account of numerous incidents at four addresses were properly capable of being treated as material inconsistencies.
5. The CPS did not adopt the impermissible bookmaker’s approach. It focused on the actual evidence and assessed its cumulative effect. It was also necessary to consider credibility holistically, and the decision letter showed that the prosecutor considered the claimant’s brother’s evidence, family evidence, psychological evidence, alleged admissions and the cousin’s silence before assessing the evidence overall.
6. The alleged admissions were properly considered at the evidential stage. The father’s account was hearsay and insufficiently precise, the uncle’s report was not prepared under Criminal Justice Act 1967, and the admissibility and content of the alleged admissions were uncertain. The CPS was entitled to conclude that they provided limited assistance.
7. The police had made repeated attempts to obtain a statement from the uncle. The CPS was entitled to conclude that reasonable lines of inquiry had been exhausted and to assume that any further statement would be consistent with the uncle’s report.
8. Because the decision was lawful, rational, full and carefully reasoned, it was sufficient to comply with the state’s obligations under article 3 of the European Convention on Human Rights and Fundamental Freedoms.

First-instance judicial review. No prior appellate decision is stated in the judgment.