England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		23 July 2010

MR JUSTICE LANGSTAFF:

1. This is an application for judicial review arising out of a decision by District Judge Earle made on 21 April 2010 before the Newcastle-upon-Tyne Youth Court, by which he decided to retain jurisdiction in the Youth Court in respect of charges which the second interested party -- whom I shall call MP -- faced.PRIVATE 
2. MP was born on 21 May 1992. On 25 March 2010 he was said to have committed an offence of rape. He was therefore very nearly 18 at the time. The circumstances of the rape as apparent to the Magistrates Court were these. He, MP, had had a relationship with the victim during the course of which she fell pregnant. She then commenced a relationship with another. In due course she came to give birth but the child was prematurely born. The prematurity was so substantial, being of the order of some 16 weeks, that the child was very sickly and indeed has subsequently died. She was in hospital. MP visited her in hospital in order it seems to maintain a vigil at the cot side of his dying child. She too was there. She was tired. There was a pull-out bed in the room so that she could be beside her child. She went to sleep.
3. She became aware from the state of her clothing when she woke up that she had been the victim of intercourse to which she had not consented. The only obvious person who might have done that was MP. When he was tasked with that -- before forensic examination resulting from a high vaginal swab showed that it was his DNA in semen within the victim -- he denied having had anything to do with such an event. He did not, for instance, claim, although in the circumstances it might have been difficult to credit such a claim, that the sex had been consensual.
4. The district judge was faced not only with that offence but with the allegation that MP had, a matter of some three weeks later, attempted to intimidate the new partner of the victim and he faced a charged of witness intimidation too.
5. The Youth Court is designed both in terms of procedure and architecture to accommodate the special sensitivities of children and young persons. Its sentencing powers are restricted. It may in the case of an offender under the age of 18 at the date of conviction sentence him to a detention and training order not exceeding 24 months. But there is a power within the court, pursuant to section 24(1) of the Magistrates Courts Act, to commit the offender (or alleged offender) to the Crown Court. Section 24(1) provides as follows:

"Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, he shall be tried summarily unless -

(a) the offence is such as is mentioned in subsection (2) of section 53 of the Children and Young Persons Act 1933 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section..."

6. Section 91 is headed "Offenders under 18 convicted of certain serious offences: power to detain for specified period". Subsection (1) provides:

"(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of—

(a) an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law…"

I interpose to say that rape is such an offence. Subsection (3) reads:

"If the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence."

It is thus plain that a "grave" crime is one in respect of which a court may, though it does not have to, choose to exercise its powers under section 91 of the 2000 Act.

7. A magistrate thus has to consider whether or not it ought to be a possible to sentence the offender for such a term. It is unnecessary in this case to cite the several cases which have considered the precise meaning and scope of these provisions because for practical purposes the parties have accepted the summary in the judgment of Collins J and Leveson J for the Divisional Court reported in H & Ors, R (on the application of) v Southampton Youth Court [2005] 2 Cr App R 30. There in paragraph 33 of his judgment, Leveson J said:

"1. The general policy of the legislature is that those who are under 18 years of age and in particular children of under 15 years of age should, wherever possible, be tried in the youth court. It is that court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved (including a jury and the public) should be reserved for the most serious cases.

2. It is a further policy of the legislature that, generally speaking, first-time offenders aged 12 to 14 and all offenders under 12 should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12.

3. In each case the court should ask itself whether there is a real prospect, having regard to his or her age, that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction..."

8. The advocates before us are agreed that such indications as there are in numerical terms given by the courts might suggest that a Youth Court should be able to contemplate any sentence in the order of something no less than two and a half years or in excess of that as being a real possibility for the Crown Court. It is plain that the approach which the courts have urged (see the case of R v Liverpool Youth Court ex p Cushion, case number C047498, unreported 7 May 1998, referred to in the case of C & D v Sheffield Youth Court [2003] EWHC 35 (Admin) in the judgment of Stanley Burnton J (as he then was), the case of R v Devizes Youth Court & Ors (ex p A) [2000] 164 JP 330 and the decision of Gage J, R (D) v Manchester City Youth Court [2001] EWHC (Admin) 860) is that the decision maker should not decide what sentence he or she would consider appropriate, nor predict the actual sentence which would be passed, but to ask whether there is a real prospect that the case may attract a sentence to which section 91 would apply. Thus, what the court should have in mind is what is within the available range of sentences which are not manifestly excessive, not attempting to establish where within the range a sentence will necessarily be. Plainly, regard must be had to the particular facts of a case in forming an appropriate assessment of what the sentencing range might be.
9. The parties before us have, since the hearing in respect of permission which came before me on Monday of this week, demonstrated a significant amount of agreement as to the principles to be applied. Thus, the principles which Mr Parkin set out in his skeleton argument are not seriously questioned by Mr Strong for MP. They are, first, that there is a presumption that offenders under 18 will remain in the Youth Court; second, that there is an exception for a young person charged with a grave crime; third, a grave crime is where the young person is charged with an offence of such gravity that sentences substantially beyond the powers of the two year detention and training maximum of the Youth Court will be passed -- I interpose to say that I do not accept 'will be passed', as it is plain from what I have said that the question is 'might be passed' -- and where an adult will be subject to a maximum of 14 years' imprisonment or more; and fourth, a sentence of two and a half years is regarded as substantially beyond the powers of the youth court. That latter is certainly so. It does not, however, indicate that is a bottom limit. Regard must be had to the principles which I have expounded.
10. When the matter came before the District Judge on 21 April, he was dealing with the case before any plea had been tendered. It was indicated to him that MP intended to enter a guilty plea despite his earlier denials. The note of what the District Judge said shows that he picked as his starting point what was considered in the case of H & Ors, R (on the application of) v Southampton Youth Court: was there a real prospect of a custodial sentence of two years or more? Then he had regard to the sentencing guidelines applicable to a case of rape. That indicated to him a starting point of five years, with a range of between four and eight years. He applied a 50 per cent reduction for the youth of MP. That gave him a range of two to four years. He took the view that there were no aggravating features in the case before him because, as he saw it, the parties had previously been in a relationship and had a child together and therefore the impact of the rape upon her might have been less. There was an absence of force and the defendant had no previous convictions. As to the latter, although it is entirely correct, it should be noted that he was also told that the defendant intended to enter a guilty plea to the charge of witness intimidation and was not therefore to be regarded as blameless but for the offence of rape.
11. He therefore considered that the likely sentence would be toward the bottom of the sentencing range and would be likely to be five years for an adult; that applying the 50 per cent reduction would bring him down to two years, and the discount for plea would mean that so far as he was concerned in applying this mathematical approach the sentence would not be more than two years.
12. In a helpful statement he has amplified those reasons. Essentially, it demonstrates that he took something of an arithmetical approach to the sentencing exercise. It may be regarded as a pity that sentencing should be reduced entirely to figures and mathematics, although they plainly have some part to play at least in establishing a general bracket within which an individual decision will fall to be made, but it is important to recognise that in the current sentencing regime at any rate figures are useful assistants but bad masters.
13. However, he had in mind a starting point indicated by the case law which it is accepted by the advocates before us was appropriate - that is between four and eight years, giving five or six years as a starting point for an individual sentence. Mr Parkin for the Crown Prosecution Service contends that it was after that that he fell into error. He had to consider what if any discount would be available to a sentencing court in respect of the offender's age coupled with a consideration of the likely maturity or assessment of maturity that court would make of the defendant. He embarked to some extent on his own assessment of the degree of maturity of that defendant. That, says Mr Parkin, and I agree, was not a matter for him.
14. He had to apply a range indicated by sentencing guidelines to give some indication of the appropriate sentencing bracket in respect of age: a reduction of 50 per cent at most for someone under the age of 18, up to and approaching 25 per cent. He plainly adopted the extreme figure of 50 per cent. The range is intended by the guideline to be no more than a guideline, covering the effect of age of the offender from the earliest and youngest of ages at which an offender may be guilty of criminal conduct up to the age of those who are very nearly adult and but for a few months would have been adult, as was the case with this particular defendant. It is not for us to say what the discount should have been given for age and maturity, but it is very easy to see that a court could well have taken the view that 25 per cent or even less of a discount would have been entirely appropriate for someone of this age who had fathered a child and about whose maturity they had to make some assessment.
15. Next there is the question of the discount for plea and next there is the question of whether or not there were aggravating features here. I cannot accept (as the District Judge possibly appears to have done) that a mitigating circumstance was provided by the fact of a previous relationship and, as he said, that therefore the impact of rape on the victim might be less. The contrary argument, which Mr Parkin expressed, seems to me not only to be open but the more likely of the arguments before a court to succeed, namely that to take advantage of a woman asleep in circumstances in which she would have felt that she could trust her former partner might be regarded as a serious breach of trust. Rape is a serious crime and is in my view made no less serious by the fact that there may have been a pre-existing relationship. It may, as Mr Parkin argues, indeed be the other way.
16. Mr Parkin argues that it would have been open to a court to regard the circumstances of the rape, in which the defendant on one view had regard to his own sexual gratification without consent, knowing there was no consent, in the circumstance when the victim was lying alongside her dying baby in a room in a hospital, as being somewhat grotesque and being regarded by a court as an aggravating feature. It is not, I emphasise, for this court to make any judgment but merely to observe it is plainly a realistic possibility that a court might take that view.
17. There was ejaculation. That is regarded by the guidelines as an aggravating feature. Thus it was in my view not open to the District Judge to take the approach which he did in determining, in effect, as I read the record of what was said, as though the decision was one for him there and then to determine what he as a sentencer would have done, rather than to ask what another sentencer in the Crown Court might have concluded on the facts was appropriate. What was demanded was a sense of range, a sense of the possibility of a sentence being beyond the powers of the youth Court. The possibility must be tempered with realism but it seems to me that a member of the public would regard as unacceptable or close to it any suggestion that for a rape committed by an 18 year old there could be no realistic prospect of a sentence beyond that maximum which the Youth Court could impose. And it would not be immediately obvious on the facts of this case as I understand it that there were any such features as would take it out of that general range.
18. Accordingly, as it seems to me, the District Judge took the wrong approach. He should not have asked what sentence was likely. He should have asked what sentence was realistically possible bearing in mind the range. He should not, as he appears to have done, taken every feature which bore on the level of sentence at its most favourable to the defendant. That might ultimately be a conclusion of the court but it could not be said there was no real prospect that a court's decision might be otherwise.
19. The second interested party, through Mr Strong, concedes at the outset of his submissions that there was some criticism properly to be made of the District Judge, in that he had gone further in deciding the ultimate sentence than was appropriate. He recognises that at the best for MP a sentence of some two years and six months might be thought the minimum which a crown court would impose. He argued nonetheless that this court should not interfere with the decision of the District Judge. For reasons essentially relating to the way in which the matter continued after the District Judge had reached his conclusion on 21 April, he argues that the position of the claimant would now be significantly prejudiced in a way in which justice would not be done were this court to quash the decision of the District Judge as to venue.
20. That arises in this way. Following the decision queried in this review, the defendant entered a guilty plea to rape and to witness intimidation. He did that on 7 May 2010. Thus some 16 days had elapsed between the decision subject to this application and a plea of guilty. Because he entered the plea of guilty on 7 May, he was still 17. Because he was 17 on the date of conviction, he fell to be treated as a 17 year old. If he were now to have to face the Crown Court and once again enter a plea because his current plea could not stand, he would be prejudiced.
21. Mr Parkin argues, and this is not significantly challenged by MP, that the length of any sentence of detention would not be such as necessarily to prejudice the defendant, although it might potentially be longer because a court sentencing MP will be bound to have regard to the history we set out, to the expectations that MP would have had as to the likely sentence and as to the degree of prejudice caused to him by his having to re-enter a plea, being in uncertain jeopardy throughout the period and, indeed, for part of that period having been in custody as a consequence of the allegation of rape. But both he and Mr Strong are at one in accepting that there is indeed some prejudice which is more than minimal.
22. It comes about in this way. For someone who is over 18 at the date of sentence, a detention and training order is not available. Secondly, conviction is subject to a rehabilitation period which, in the case of a sentence not exceeding 30 months passed under section 91 of the Powers of Criminal Courts Sentencing Act 2000 is five years for someone who is under 18 and ten years for someone who is 18 or over. The age at conviction is relevant also to the period of time an offender is subject to the notification requirements under section 82 of the Sexual Offences Act 2003. The notification period applicable for an offender receiving a sentence of detention not exceeding 30 months is halved where the offender is under 18 years at the date of conviction. However much a Crown Court judge may take account of the peculiar circumstances arising out of what has happened in this case, he could not avoid imposing those conditions which depend purely upon age and not upon any sentencing discretion.
23. Mr Strong argues, and in my view with force, that this prejudice would have been entirely avoidable if the Crown Prosecution Service had acted with reasonable expedition. What happened was this. No doubt the CPS were surprised at the decision of the District Judge. On 27 April, six days after that decision, it notified the court at one of the hearings before the Youth Court that was to follow that it was considering judicial review. It was not, however, for another four weeks that it gave any decision consequent upon that consideration. Within that period of time there simply was no indication from the CPS what its ultimate stance would be; but, entirely properly, the claimant came again and again before the court on some six occasions, including on one of those the occasion when, on 7 May, he entered the guilty pleas of which I have spoken.
24. Internally, however, matters within the Crown Prosecution Service were busily conducted. A report was prepared for the Chief Crown Prosecutor and sent to the Senior District Crown Prosecutor on 28 April. On 29 April that report was considered by the Chief Crown Prosecutor, who agreed that "Policy" should be consulted. Policy in turn were consulted and a response received on 4 May that the decision should be judicially reviewed, whereupon a second report went to the Chief Crown Prosecutor, and again to the Senior District Crown Prosecutor.
25. That second report was considered by the Senior District Crown Prosecutor on 12 May -- by now nearly a week after the pleas had been entered -- who agreed that judicial review should be pursued. The report was forwarded to the Chief Crown Prosecutor. A third report was now prepared given that the defendant had in the meantime pleaded guilty. It was forwarded to both the Senior District and the Chief Crown Prosecutors who responded on the same day indicating that the matter should proceed to judicial review, if Policy were to agree. Policy were therefore contacted.
26. Policy queried whether or not judicial review was available because guilty pleas had now been entered and asked whether the matter might change because the CPS had indicated an intention to the court. Further email traffic passed to and from what appears to be Policy. A fourth report was then prepared on 20 May. That sought authority from the Chief Crown Prosecutor to pursue judicial review. A day later the defendant turned 18. The Senior District Crown Prosecutor on 26 May agreed the documentation and the judicial review claim was then served. Within a matter of days further proceedings at the Youth Court had been stayed, but we note that at that stage the defendant was in custody upon this charge. He was therefore serving a period of detention without yet having been subject to the sentence in respect of which, having pleaded guilty on 12 May, he might have expected by about then to have been passed by the court.
27. I would like to emphasise that the time limits applicable for judicial review demand speed. A claim must be brought promptly. That is the principal provision as to time. The rule adds: "and in any event within three months." Three months is the long-stop. In a case such as this, it is plainly critical in the interests of justice and of the defendant and of the public generally that there be expedition. It is highly regrettable that the way in which the Crown Prosecution Service responded to the surprise of the District Judge's decision involved the passing up and down the chain of command as it did of a number of reports, four of them, taking up time and without there being any action in the meantime that would prevent the court continuing, that would preserve the position and would if necessary begin the process of judicial review.
28. I accept entirely that a decision to review a court in respect of the decision it has reached needs to be carefully considered. It is, however, only a matter of a moment's reflection to see that the way in which that necessary consideration took place in this case has sadly had adverse effects both upon the public interest and the administration of justice. Indeed Mr Parkin, appearing for and on instructions of the CPS, gave as part of his submissions that the procedure needed to be tightened up, that a decision might -- although this is seeing matters very much in retrospect -- have been taken beforehand (before the magistrate came to the view he did about venue) about whether or not to review the decision should it be adverse. I have to say for my part that I accept his remarks as appropriate.
29. The consequence is that because of this the regrettable delay, albeit for reasons which are seeking to achieve a proper decision, has acted to the prejudice of the defendant. For my part, it would seem to me that justice would properly be served by indicating, as I have in the first part of this judgment, the approach which should be taken to a case such as this and indicating in doing so the approach that I would expect most magistrates youth courts to adopt where an allegation of rape that is made in respect of someone who is approaching the years of 18 without any obvious feature which suggests that the case is appropriate for the Youth Court alone, but by recognising that in the case of this particular youngster, because of the prejudice incurred by reason of the delays of the CPS, it would not further be served by now requiring him to in effect plead again as an 18 year old before the Crown Court.
30. In reaching the view that justice would be served therefore by rejecting the application here to quash the decision, though indicating as I have done my reservations about the basis upon which it was made, I have taken into account that the defendant, MP, has been in custody since 13 May until today, not exclusively but undoubtedly in part on the offence of rape. He has thus served some period of time amounting now to very nearly two months (the equivalent of a four month custodial sentence), which, if the magistrate thinks that a detention training order is appropriate, will of course not be deducted from the length of any such training regime. That is the nature of detention and training orders.
31. It would seem to me, despite the very nasty nature of the offence with which this young man stands charged, to be offensive to justice to require him to plead again in respect of a matter to which he has already pleaded and it seems to me appropriate that, because the delays in this case were not of his making but those of the prosecuting service, that he should not be subject to the further penalties of which Mr Strong has spoken and to which I would add the period of uncertainty (which at his age should not be undervalued) as to what might lie in store for him and what his future might be.
32. Nothing I have said in this judgment I hope will be regarded in any way as limiting the powers of the Youth Court upon its consideration of the appropriate sentence, but for my part, although accepting to the extent I have done Mr Parkin's argument as to the decision of the District Judge at the Magistrates Court, I would not make any order quashing the decision which he made, which therefore stands.

LORD JUSTICE MUNBY:

33. I agree with my Lord but in the circumstances wish to add a few words of my own.
34. This was a nasty offence of rape committed on 25 March 2010 by a youth who less than two months later on 21 May 2010 reached the age of 18. The public would be concerned, and in my judgment rightly concerned, at the idea that there was a realistic prospect of such a defendant receiving a custodial sentence of no more than two years. There will of course be cases where, applying the principles laid down in the authorities, and as my Lord has summarised them, it will be appropriate for a Youth Court to retain jurisdiction. But for my own part I have to say that it will, I suspect, be a rare case where a youth so close to his 18th birthday has committed a rape of this sort that such a decision will be appropriate.
35. I agree with my Lord for the reasons he has given that, but for the regrettable subsequent conduct of the Crown Prosecution Service, this is a case in which the decision -- I have to say plainly the unduly lenient decision -- of the District Judge could not stand. However, for the reasons my Lord has given, and because of the regrettable train of subsequent events, it would not be right for us to take the course thereby indicated. It will not escape notice that the practical consequence of our decision is that MP may be thought to have had a lucky escape and, moreover, in circumstances where the cause of his good fortune is the regrettable conduct of the Crown Prosecution Service.
36. As my Lord has said, and I wish to emphasise the point, the obligation upon any claimant seeking judicial review is to apply "promptly". The time limit for applying is not three months. That is simply, as my Lord has emphasised, the long-stop. Promptness in judicial review proceedings is called for, particularly where the underlying proceedings to which the application relates are criminal proceedings; all the more so where, as in the present case, the application for judicial review relates to what is essentially an interlocutory decision in the context of such proceedings.
37. In the present case the decision of the District Judge was announced, I suspect somewhat to the surprise of the Crown Prosecution Service, on 21 April 2010. That was precisely one month before, on 21 May 2010, MP was due to attain his 18th birthday. In such circumstances, and for reasons which do not require elaboration, not merely promptness but speed was of the essence. I will not repeat the unfortunate chronology which my Lord has already helpfully rehearsed, but it might be thought unfortunate to say the least that it took the Crown Prosecution Service six days even to notify the court and then PM's legal representatives that it was considering a possible judicial review application, in circumstances where Mr Parkin has confirmed that the next MP or his representatives knew about any decision was four weeks later on 26 May 2010 when the application for judicial review was issued.
38. Mr Parkin submits, and I entirely agree, that where an application of this kind is to be made, then proper consultation within the Crown Prosecution Service to ensure that it is in the public interest is essential. But the necessary process of internal consultation must be tailored to the circumstances of the case, should have been tailored to the present circumstances of this particular case. Consultation, bureaucracy, must not be allowed to have such a life of its own that it operates not in furtherance of the public interest but, as in the present case, by enabling a defendant in MP's position to avoid the due consequences of his criminality.
39. As my Lord has described, the internal process appears to require the preparation of a report, which goes first to the Senior District Crown Prosecutor and then to the Chief Crown Prosecutor. In this particular case it was understandably the view of the SDCP and the CCP that they should consult with the CPS National Lead on Youth Policy ("Policy"). The response from Policy arrived on 4 May 2010 indicating that the decision of the District Judge should be judicially reviewed.
40. I appreciate that I speak with the priceless benefit of hindsight. And, despite the very full and frank account Mr Parkin has given us as to this unhappy chronology, I am not privy either to the policy which no doubt underlies these procedures nor to every detail of how that policy was implemented in the present case. But it might be thought that in all the circumstances, having received the green light from Policy on 4 May 2010, the next step would have been to embark immediately on the drafting and the issuing of judicial review proceedings as a matter of considerable urgency.
41. Not a bit of it. As my Lord has described, the reporting process starts again. The second report is sent the next day, 5 May 2010, to the SDCP who considers it on 12 May 2010. By then of course things have moved on, because in the intervening period, while that report (number two) was moving up the bureaucratic chain, MP on 7 May 2010 entered his guilty plea. That of course rendered report number two out of date, which is why on 12 May 2010, as my Lord has described, the third report was produced. The decision at that stage was again to consult Policy. Policy eventually responded on 20 May 2010, indicating that judicial review was appropriate. It might be thought that at least at that stage, if not significantly earlier, steps should have been taken immediately, and without further bureaucratic delays, to draft and issue the necessary proceedings. Not a bit of it. The fourth report is prepared, seeking authority from the CCP to pursue the judicial review proceedings, an authority which in fairness to the Crown Prosecution Service I should emphasise was in the event granted the same day, 20 May 2010. The next day MP became an adult.
42. I appreciate that this particular observation more than most may reflect the wisdom of hindsight, but it is a fact that no steps had yet been taken despite this proliferation of circulating paper to draft the relevant proceedings. That was done on 24 May 2010 by the area youth specialist and the District Crown Prosecutor. But that step again required the approval of senior management, and it took a further two days until 26 May 2010 for the SDCP to read the documentation, which at that point enabled the proceedings to be commenced.
43. It is not for this court to instruct the Director of Public Prosecutions as to how the Crown Prosecution Service should be organised and managed. It is certainly not for this court to proffer advice or suggestion as to how the procedures might best be adopted or adapted to ensure that the twin requirements of the public interest and the promptness of any applications to this court are best to be achieved. But I have to say that I viewed with dismay when I first read Mr Parkin's very full and frank account, and I continue to view with very considerable dismay, the internal procedures which had the consequence that it took five weeks to launch the proceedings in a case in which, in my judgment, the proceedings could -- and if they could, therefore should -- have been launched within a matter of days. The unhappy consequence, as I have already pointed out, is that the reason why in agreement with my Lord I accept that it would not be right to quash the albeit erroneous decision of the District Judge is because MP has suffered the prejudice my Lord has described as a result or in consequence of that period of delay.
44. In the nature of things -- this I emphasise is no criticism whatever of Mr Parkin -- it is a matter of some obscurity whether this unfortunate history of internal processes within the Crown Prosecution Service is the responsibility of the relevant local office or whether, as I suspect may be the case, it is the result of procedures laid down, no doubt with the best of intentions, by the Director of Public Prosecutions nationally.
45. I do not wish to be misunderstood. That the process of ensuring decisions of this potential gravity are properly considered requires in the typical case the process of reports moving up through the SDCP to CCP, and where appropriate to Policy, is entirely appropriate. And no doubt in the vast bulk of cases the process works admirably, appropriately and within an appropriate time scale. It is perhaps the misfortune of the Crown Prosecution Service that in the present case they were faced with what, as I say, I had the impression was from their perspective a somewhat surprising decision by the District Judge and moreover in circumstances where time was at a premium. But bureaucratic processes are there to serve the public interest and must not be allowed to become an inflexible master if the consequences are going to be as has been the outcome in this case.
46. It seems to me that our judgments, which will of course be transcribed in the usual way, should be sent to the Director of Public Prosecutions so that he personally can consider what if any arrangements he wishes for the future to put in place in light of our observations.
47. I emphasise that it is very easy to see with the benefit of hindsight what has gone wrong. I entirely accept Mr Parkin's powerful point that this is not a case where the complaint has been that the Crown Prosecution Service was doing nothing. On the contrary, the concern is that it was if anything doing too much. I am acutely conscious of the fact that, as close examination of the relevant chronology shows, each stage in the process was undertaken within a time which it is hard to criticise. But as we all know from too many experiences, two days here, three days there, four days there, three days here, five days there, before you know where you are it adds up, as turned out to be the case here, to five weeks.
48. I trust that the court does not on some future occasion find itself in the unhappy position which we have been put in.
49. For those reasons, which are supplementary to what has fallen from my Lord, and agreeing with everything he has said, I agree that, despite the judicially reviewable error into which the District Judge fell, it would not be right for us to quash this decision. Accordingly the application by the Crown Prosecution Service for judicial review must be refused.

LORD JUSTICE MUNBY: Is there any form of direction or order that anybody seeks beyond the bare order dismissing the application?

MR PARKIN: No, my Lord. I do not know if it is appropriate for an order at this stage to lift the stay in the lower courts and let matters take...

LORD JUSTICE MUNBY: The stay was given by the Administrative Court, was it not?

MR PARKIN: I am not sure it was. My learned friend may be in a better position --

LORD JUSTICE MUNBY: I think I read somewhere that Judge Kaye granted a stay. Was Judge Kaye sitting in this court?

MR PARKIN: He was. He would have been.

LORD JUSTICE MUNBY: So we have power to lift the stay and it must be right that we lift the stay.

MR PARKIN: Yes.

LORD JUSTICE MUNBY: So this matter in respect of sentence can proceed without any further delay. We will dismiss the application for judicial review, we will lift with immediate effect the stay granted by Judge Kaye on 27 May 201, and no order as to costs.

MR PARKIN: I am grateful.

LORD JUSTICE MUNBY: Thank you very much indeed.