England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		28 June 2006

1. MR JUSTICE WALKER: The claimant, whom I shall call "S", appeared before Mendip Youth Court on 9 November 2005, when his next hearing date was directed to be 15 February 2006. The charge he faced arose under section 5 of the Sexual Offences Act 2003: the offence of rape of a child under 13. As recently confirmed by the Court of Appeal (Criminal Division) in the case of G and R [2006] EWCA Crim 821, the physical acts to be proved by the prosecution on such a charge are that there was intercourse of the relevant kind with a victim under 13, whether that victim consented or not. So far as the mental element is concerned, it is no defence that the accused reasonably believed the victim to be 13 or over.
2. It is accepted by the claimant that on 31 May 2005 he had sexual intercourse with a girl, and that she is now known to have been 12 years of age on that day. I shall refer to her as the victim of the alleged offence, using the initial "V" for convenience.
3. S was born on 26 November 1989. He was thus 15 and a half at the time of the offence and is now 16 and a half. He says that he was not aware that V was as young as 12. The prosecution, however, rely upon a statement by V's father giving reasons which might lead to a conclusion that S was aware of her age. I say "rely", of course it will be clear from what I have said earlier that it is not necessary for them to show this in order to prove the offence.
4. The proceedings in this court are brought against the Crown Prosecution Service ("the CPS"). They arose in this way. The Crown Prosecutor dealing with the matter was Miss Rachael Scott. On 8 November 2005, she wrote to S's solicitors. In that letter, she gave detailed reasons rejecting their contention that it was neither in the public interest nor in S's interests that the prosecution be pursued. The youth court was informed that S's advisers proposed to seek permission to apply for judicial review of the stance taken by the CPS. There are particular reasons in this case why an application for funding for S in that regard was not issued until 20 December 2005 and proceedings were not issued until early February.
5. After they had been issued, the youth court put back the hearing fixed for 15 February to 24 May 2006. An acknowledgment of service was lodged by the CPS on 22 February 2006. The matter was considered by Newman J on the papers, and his order granting permission was dated 15 March 2006. Counsel today were not able to explain how it was that this matter did not come on for hearing any earlier than today (28 June). I am concerned that more than seven and a half months have passed between 9 November, when it was first proposed to seek judicial review, and 28 June, when this matter has come on for hearing. It is vital that judicial review is sought promptly in cases involving young offenders. That is well-known to the Legal Services Commission, who in this case, as in others, dealt with their side of the matter speedily.
6. It was also dealt with speedily by Mr Barker, who advised S on the proceedings and appears for him today. I need not say anything more about the particular problems in this case prior to February, other than to say that I suspect, with the benefit of hindsight, that they could have been mitigated by seeking assistance. I am particularly concerned about the delay following the grant of permission on 15 March 2006. I do not blame anyone, but I stress that, in cases involving young offenders, all involved should do all that they can in conjunction with the court listing office to ensure that the case comes on for hearing promptly.
7. During the period since March 2006, there has, however, been an important development. By letter dated 15 May 2006, the CPS wrote:

"After consultation with Counsel, subject to the decision of the Administrative Court, the Crown will amend the Rape charge against the defendant to an offence contrary to Section 9 [of the] Sexual Offences Act 2003. As this is an offence within the auspices of section 13 of SOA 2003 the maximum penalty is now 5 years detention upon indictment."

8. Mr Vaitilingam, who appears for the CPS today, has clarified this. On behalf of the CPS, he undertakes that at the next hearing before the magistrates, an application will be made to amend the charge faced by S. It will be amended so as to delete the charge under section 5 and to replace it with a charge under section 13. That section provides as follows:

"13. Child sex offences committed by children or young persons.

(1) A person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 if he were aged 18.

(2) A person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years."

9. The particular matter which would be an offence as described in section 13(1) is sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003. That is in these terms:

"9. Sexual activity with a child

(1) A person aged 18 or over (A) commits an offence if-

(a) he intentionally touches another person (B),

(b) the touching is sexual, and

(c) either-

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

(2) A person guilty of an offence under this section, if the touching involved-

(a) penetration of B's anus or vagina with a part of A's body or anything else,

(b) penetration of B's mouth with A's penis,

(c) penetration of A's anus or vagina with a part of B's body, or

(d) penetration of A's mouth with B's penis,

is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.

(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable-

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."

10. The consequences of this change of stance on the part of the CPS are significant. It is not in doubt that the court would agree to the amendment proposed. The differences between a prosecution under section 5 and a prosecution under section 13 are explained by the Court of Appeal (Criminal Division) in the case of G. They relate not only to the potential period of imprisonment should a sentence of imprisonment be determined upon by the court; they also affect the question of registration as a sex offender. In addition, Mr Vaitilingam has told us that he considers it inconceivable that the prosecution will do anything other than contend before the youth court that this matter should be tried by the youth court and should not be sent to the Crown Court for trial on indictment.
11. The position now is that the original judicial review application has become moot. That is because it concerned a decision on 8 November 2005 to continue with a prosecution under section 5 of the 2003 Act. That decision is no longer effective. Both parties agree, however, that in its place we should consider whether S can challenge the new decision, which is in effect to prosecute him under sections 13 and 9 of the 2003 Act.
12. Two legal principles applying to this complaint are not in dispute. The first is that this court can in certain circumstances review a decision to prosecute. In R v Chief Constable of Kent and another, ex parte L [1991] 93 Crim App R, this court held that, in respect of juveniles, the discretion of the Crown Prosecution Service to continue or discontinue criminal proceedings was subject to judicial review, but only where it could be shown that the decision was made regardless of, or clearly contrary to, a settled policy of the Director of Public Prosecutions evolved in the public interest, such as the policy of cautioning juveniles.
13. The second is that the European Convention on Human Rights is not engaged in the present case. In G (the case mentioned at the outset of this judgment), it was held that strict liability under section 5 of the 2003 Act did not infringe Article 6. It must follow, as it seems to me, that section 13 combined with section 9 equally will not infringe Article 6. The only remaining Article suggested as possibly relevant is Article 8. As to that, the Court of Appeal said this:

"43. Mr Owen's argument in relation to Article 8 is based largely on the contrast between the effect on a child of a conviction under section 5 and that of a conviction under section 13 of the SOA. A conviction under section 5 labels the child a rapist, subjects him to notification requirements as a sex offender and to a maximum sentence of detention for life. Conviction under section 13 labels a child one who has had sexual activity with another child, does not subject him to notification requirements unless sentenced to at least 12 months imprisonment and is subject to a maximum sentence of five years detention."

14. In this case, however, Mr Barker accepts that the family circumstances of S do not enable him to invoke Article 8. We are thus not concerned with the interesting questions which might have arisen on a Convention challenge. Instead, Mr Barker refers us to familiar principles of administrative law and asserts that the CPS acted unreasonably or failed to take account of relevant considerations. As to relevant considerations, Mr Barker refers back to the decision in the Kent case. That refers to "a settled policy of the Director of Public Prosecutions evolved in the public interest". There is of course now a Code for Crown Prosecutors. The current edition is dated 2004.
15. Mr Barker points to the fact that, in addition to this main code, there are two further codes. There is a code entitled, "Sexual Offences Act 2003". This is found in a document which describes the Act, and at various stages, after dealing with particular provisions in the Act, has a section entitled, "Code for Crown Prosecutors", which will include observations on charging practice where appropriate.
16. The second document produced by the Crown Prosecution Service is entitled, "Youth Offenders". This document provides legal guidance which is read in conjunction with the Youth Training Manual.
17. In the acknowledgment of service, which was verified by a statement of truth, it was stated by the CPS that the Crown carefully applied the Code for Crown Prosecutors when considering this case. Mr Barker says that this is a reference to the main code, and infers that the CPS did not have regard to the two additional documents that I have described.
18. There is, in my view, an insuperable difficulty facing Mr Barker on that contention. Matters have moved on since the acknowledgment of service. We are told by Mr Vaitilingam that the letter of 15 May was sent after he had advised in conference. Indeed, the wording of the letter confirms that. The acknowledgment of service drafted in February offers no basis for any conclusion as to what was or was not taken into account before deciding that the section 5 charge should be abandoned and a charge under sections 13 and 9 substituted in its place. Thus, the only basis for a conclusion that the CPS had failed to pay regard to the guidance for Crown Prosecutors set out in the documents concerning the Sexual Offences Act 2003 and the document concerning youth offenders, would be an inference arising from success on an argument that no reasonable prosecutor could have concluded that this prosecution complied with the guidance in those two documents. Such a conclusion would in itself found judicial review, as it will offend against the well-known Wednesbury principle. Accordingly, I turn to that question.
19. In that regard, Mr Barker placed reliance upon a report of Ms Gillian Evans, chartered psychologist, who had examined S in October 2005. She stated that the only inappropriate element in S's behaviour in relation to the present offence was that of sexual behaviour with a partner who was not a peer, which she described as "age-related inappropriateness".
20. She said that in terms of age differential -- given S's small physical stature, developmental immaturity and delayed onset of puberty -- whilst the chronological age difference between S and V was three years, the developmental difference in terms of social, emotional, behavioural and sexual development "may possibly" be far less than this. She added that S's presentation was atypical and very immature for a 15 year-old boy. At this stage in her report she inserted a note to the effect that she did not have any knowledge of V's level of developmental functioning.
21. Later in her report, she said that the impact of a conviction for rape under section 5, and of the notification requirements, was likely to be profound. It was likely, for instance, to have a significant and detrimental impact upon S's self-esteem, contributing to enhanced feelings of helplessness and powerlessness. She recorded that S had expressed clear feelings of regret and remorse for his actions in having sexual intercourse with V. She described the results of a test she had conducted as indicating minimal to a moderate level of victim empathy and remorse. Whilst S identified that he felt guilty for what he had done, he did not perceive that he had exploited V because he identified, "we were both at fault".
22. He was able to say he felt sorry for what he had done to V, but was not able to display more in-depth feelings of empathy in respect of the impact of his behaviour upon V as a 12 year-old girl. She concluded that such lack of empathy reflected his difficulty in general in terms of empathy and interpersonal relationships.
23. Turning to the guidance issued by the CPS on the Sexual Offences Act 2003, relevant factors are set out both in relation to sections 5 to 8, and in relation to section 13. They include: the age and understanding of the offender; the relevant ages of the parties; whether the complainant entered into the sexual activity willingly. Importantly, the next factor described is: "parity between the parties in relation to sexual, physical, emotional and educational development". Other factors are whether the relationship between the parties represented a genuine transitory phase of adolescent development, and the nature of the activity -- whether it was penetrative or non-penetrative. The two final factors specifically mentioned are what is in the best interests and welfare of the complainant, and what is in the best interests and welfare of the defendant.
24. It was said by Mr Barker that relevant ages and the question of parity would have to take into account the functional age of the offender. In this regard, he initially asserted that the CPS had accepted that S had a functional age of 10 to 12. On examination, however, the document that he relied on, an internal document, referred to an educational age of 10 to 12.
25. Before going through the individual sections concerned with offences against children in sections 9 to 12, the CPS Sexual Offences Act 2003 document says this:

"It is important to note that these sections are designed to protect children, not punish them unnecessarily or make them subject to the criminal justice system where it is wholly inappropriate. Young people should not be prosecuted or issued with a reprimand or final warning where sexual activity was entirely mutually agreed and non-exploitative."

26. At first sight, that paragraph might be thought to be rather broad and a question might arise as to whether it was consistent with the intention of Parliament in enacting these specific offences. However, more detail is provided later in the document in a section dealing with adult and child defendants. It is said at a later stage that, in deciding whether it is in the public interest to prosecute a person, prosecutors may exercise more discretion in relation to child sex offences, where the victim is a child age 13 to 15, than for offences against children under 13. After setting out some of the factors that I have mentioned earlier, the document continues:

"In summary, where a defendant, for example, is exploitative, or coercive, or much older than the victim, the balance may be in favour of prosecution, whereas if the sexual activity is truly of the victim's own free will the balance may not be in the public interest to prosecute.

In addition, it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption. In such cases, protection will normally be best achieved by providing education for the children and young people and providing them and their families with access to advisory and counselling services. This is the intention of Parliament."

27. As to these passages, Mr Barker accepted that it might well be described as exploitative for a 15 year-old to have sexual intercourse with a 12 year-old knowing of the age of his sexual partner. That, however, said Mr Barker, was not what had happened in this case. For all the reasons described by Miss Evans in her report, it was said on behalf of S that his conduct could not be described as exploitative.
28. Turning to the CPS Youth Offenders document, Mr Barker noted that similar factors to those identified earlier are listed in that document. It is said in that document that if the sexual act or activity was in fact genuinely consensual, and the youth and the child under 13 concerned are fairly close in age and development, a prosecution contrary to sections 5 to 8 is unlikely to be appropriate. Action falling short of prosecution may be appropriate. In such cases the parents and/or welfare agencies may be able to deal with the situation informally.
29. However, if a very young child is being seduced by a youth, or a baby-sitter in a position of responsibility is taking advantage of a child under 13 in his or her care, prosecution is likely to be in the public interest. Where a child under 13 has not given ostensible consent to the activity, then a prosecution contrary to sections 5 to 8 is likely to be the appropriate course of action. In this regard, Mr Barker suggested that, if anything, S was less mature than V. He repeated that there was no exploitation, but accepted that if it had not been for S's immaturity, then it might have been reasonable to conclude that the exploitation factor was present.
30. Mr Barker then drew attention to a further factor concerning discrimination on the grounds of gender. The Youth Offenders document made it clear that any decision to prosecute or not to prosecute should be free of discrimination on the grounds of sexual orientation and gender. It adds that it should be noted that where both parties to sexual activity are under 16, then they may both have committed a sexual offence. In conclusion, Mr Barker's submission was that any prosecutor, taking all these factors into account, could not have decided that it was appropriate to prosecute even under sections 13 and 9, or indeed to take action such as a reprimand or caution or something of that kind.
31. It seems to me that the factors relied upon by Mr Barker do not bring this case within the Wednesbury principle. This is a case where the Crown asserts that S was well aware that his victim was very much younger than him. It may be that for the purposes of sentencing, after a Newton hearing if necessary, a court could be persuaded that S had not behaved exploitatively. That is not a matter which this court, on judicial review, can decide.
32. The Crown have, as it seems to me, a well arguable case that, in all the circumstances, if they are able to prove that S knew of V's young age, the circumstances could be described as exploitative. I find it impossible to say that it would not be open to a reasonable Crown prosecutor to consider, in the light of the documents that Mr Barker has referred us to, that a prosecution was in the public interest.
33. As to the question of discrimination, I readily accept that the guidance properly stresses that decisions to prosecute should be free from discrimination on the grounds of gender. In this case, however, there is nothing to suggest that it is the gender of S which has led to the decision to prosecute. The relevant distinction between S and V is that S was 15 and V was 12. That difference of age amply justifies a conclusion that S should be prosecuted and V not.
34. For those reasons, which are essentially the reasons advanced by Mr Vaitilingam on behalf of the CPS, I conclude that this challenge fails.
35. LORD JUSTICE LAWS: I agree that this application for judicial review should be dismissed for the reasons given by my Lord. No point is taken under the Human Rights Act. Mr Barker avowedly confined his submissions within the boundaries of the conventional Wednesbury principles. In my judgment it would take a very stark case indeed to justify this court overturning a decision to prosecute on the ground that these principles was violated. This present case is a very far distance from such a state of affairs.
36. I only add that I wish to underline what my Lord has said about the need for speedy resolution of cases concerning criminal process against juveniles.
37. MR VAITILINGAM: My Lords, the claimant is 15 years old and he is publicly funded. But I am instructed to apply for costs, notwithstanding those factors, and I accept as well that no schedule of costs has been filed, but I apply for costs against a publicly funded claimant.
38. LORD JUSTICE LAWS: What is the present position? I am a little vague about what it is in the Administrative Court as opposed to the Court of Appeal. If you apply against a publicly funded losing party, is there not some modern equivalent of what a very long time ago used to be called a football pools order?
39. MR VAITILINGAM: Yes.
40. LORD JUSTICE LAWS: What is the right order to make, assuming that your application is good in principle?
41. MR VAITILINGAM: I expect my learned friend, Mr Barker, has handled a few more of these cases than I have. I submit that there be an order for the claimant to pay the defendant's costs, but not to be assessed or to be paid without leave of this court.
42. LORD JUSTICE LAWS: Just that?
43. MR VAITILINGAM: Yes.
44. LORD JUSTICE LAWS: Mr Barker?
45. MR BARKER: I do not oppose that in principle, my Lord.
46. LORD JUSTICE LAWS: Then we will make that order.
47. MR BARKER: I ask, if I may, for a public funding assessment for my costs in this case.
48. LORD JUSTICE LAWS: I am sure you are entitled to that.
49. MR BARKER: For the avoidance of doubt, could I ask your Lordships to make a section 39 order? I know my Lord has carefully --
50. LORD JUSTICE LAWS: Is that anonymity?
51. MR BARKER: Yes, my Lord.
52. MR JUSTICE WALKER: There is a standard form, I think, which the associate will provide.
53. LORD JUSTICE LAWS: If you just check that with the associate and we will make the order. Thank you very much.