When to prosecute children for sexual abuse

15 June 2011 by Matthew Flinn

R (on the application of E and Ors) v The Director of Public Prosecutions [2011] EWHC 1465 (Admin) – Read Judgment

In a case involving rather distressing facts, the High Court has quashed a decision of the Crown Prosecution Service to prosecute a 14-year-old girl (identified only as “E”) for the sexual abuse of her younger siblings.

On 26 January 2010 the Child Exploitation and Online Protection Centre discovered a video on the internet, in which E appeared to be sexually abusing her two younger sisters. The acts portrayed allegedly occurred between January and November 2001, when E was aged 12, and her sisters were aged 2 and 3.

The police were intent on treating E as a perpetrator of offences against her sisters, and seeking a criminal conviction against her, but the multi-agency committee which had been convened by the local authority to respond to the situation, including the NSPCC and the local safeguarding children board, had reservations about that course of action. In particular, there was concern that none of the children involved could be given adequate help and therapeutic support whilst a criminal prosecution was pursued, and that this could lead to harm and the breakdown of the family. It had also been claimed by E that she had been groomed and coerced into making the video by someone she had met on the internet. If that were true, the prosecution of E could send the wrong message to other young people being similarly exploited. A report dated 8 June 2010, which outlined these concerns, was submitted to the CPS.

Ultimately, a specialist Crown Prosecutor decided that there was sufficient evidence to proceed, and that it was in the public interest to charge E. Consequently, she appeared at the Youth Court in October 2010, and was committed to face trial in the Crown Court in respect of six offences contrary to the Sexual Offences Act 2003 and the Protection of Children Act 1978.

The decision to prosecute was challenged by E, and by her two sisters, in judicial review proceedings. They were all acting with their mother as their litigation friend. There were three main grounds of challenge:

1. The decision was taken under the auspices of guidance, issued to Crown Prosecutors by the Director of Public Prosecutions (the DPP), which was inadequate and unlawful. It failed to have sufficient regard to the obligations of the State under international law (such as Articles 3, 39 and 40 of the 1989 UN Convention on the Rights of the Child) to give protection to children, including in particular this special situation where there was a child who was both a defendant and a victim (of grooming).
2. The decision-making process of the CPS had been flawed. It had failed to properly follow the guidance of the DPP, such as it was, and had failed to take relevant considerations into account, such as the impact of a prosecution on the two younger sisters.
3. The substance of the decision was unlawful. It breached the rights of E and her sisters under e.g. Article 8 and Article 3 of the European Convention of Human Rights (the ECHR), and was irrational.

As can be seen, this decision therefore had to canvas a broad range of issues, including provisions of international law, domestic principles of judicial of judicial review, and of course, the scope of various articles of the ECHR.

Unlawful Guidance

This first ground of challenge touched upon interesting and potentially difficult questions of international law, because the Claimants were relying on rights that are contained in international treaties. Usually, such rights need to be incorporated into domestic law in order to have force in national courts (a good example of this is the Human Rights Act 1998, which incorporated the ECHR). This is because international treaties are entered into by the Government rather than Parliament, and it is Parliament’s role to make the law. There is no statute which directly incorporates the UN Convention on the Rights of the Child into UK law, and so the courts would be limited to interpreting the applicable domestic law in accordance with that treaty so far as possible.

However, the court did not need to engage with these questions at length. Even if it was assumed that the provisions of the UN Convention were directly applicable in domestic law, the court summarily rejected the contention that the numerous pieces of guidance which applied in this case were unlawful.

In making their decisions, Crown Prosecutors need to have regard to The Code for Crown Prosecutors, and legal guidance issued by the DPP on Youth Offenders, on the Sexual Offences Act 2003, and on Children as Victims and Witnesses. These pieces of guidance consistently emphasize the need to give special consideration to the position and welfare of children, both as defendants and victims, and make express reference to the requirement to take into account state obligations under the ECHR and the UN Convention on the Rights of the Child. This being so, it could be seen that this ground of challenge essentially amounted to an attack on the way the guidance was expressed. This was a matter for the DPP and the courts would not intervene. As Munby LJ said at paragraph 50:

It is vital to bear in mind that it is for the DPP, and not for the court, to determine what policies the CPS should apply. Parliament has conferred upon the DPP alone the responsibility for formulating prosecutorial policy. It is not for the judges to advise the DPP as to what his policy should be or as to how, or in what form and at what level of detail it should be expressed. These are all matters for the DPP.

Failure in Decision-Making Process

As swiftly as the court rejected the first ground of challenge, it upheld the second. Read as a whole, Munby LJ said that the guidance to Crown Prosecutors required them to take into account the interests and welfare of the Defendant, the interests and welfare of the victim(s), the impact of a prosecution on the mental, physical and emotional health of the victim, the views of the victim or the victim’s family on these matters, and the views of social services. He then made reference to the report of the multi-agency committee dated 8 June 2010, which expressed the view that any delay in therapeutic treatment pursuant to a criminal prosecution could harm all the children, that the parents would view the prosecution as hostile, and that the prosecution could undermine the ability of the family to remain intact.

In light of this, he said that the decision of the Crown Prosecutor was clearly defective. There was no indication that the interests and welfare of E’s two younger sisters had been taken into account, and no reference was made to the concern that delays in therapy would be harmful to the children. In short, he said that the decision did not take into account or engage with the views expressed in the multi-agency committee report.

The decision letter of the Crown Prosecutor did actually expressly say that the report had been considered, but Munby LJ found this to be insufficient.

…there is simply no explanation of how the report has been considered or as to why, given what had been said in the report, the decision was nonetheless to prosecute.

On this basis, it could be said that the real problem with the Crown Prosecutor’s decision was simply that it was not accompanied by sufficiently detailed reasons, and that this provided the court with a convenient hook on which to hang a decision which was essentially based on the view that the decision to prosecute was wrong. However, Munby LJ preempted this criticism. At paragraph 62 he said:

I accept of course that a decision such as this is to be read in a broad and common sense way, applying a fair and sensible view to what the decision maker has said. I readily acknowledge that, as Lord Hoffmann pointed out in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, reasons should be read on the assumption that, unless she has demonstrated the contrary, the decision maker knew how she should perform her functions and which matters she should take into account. And I have very much in mind his warning that an appellate court – and the same must also go for this court – must “resist the temptation to subvert the principle that they should not substitute their own discretion for that of the [decision maker] by a narrow textual analysis which enables them to claim that he misdirected himself.” But the fact, in my judgment, is that the errors here – and we are not of course concerned with only a single error – are patent on the face of the decision letter.

Decision wrong in substance

The third ground of challenge posed the important question of whether or not a decision to prosecute could be capable of engaging and breaching someone’s human rights under Articles 3 and 8 of the ECHR. This was a matter which had divided the House of Lords, and consequently been left open, in R v G (Secretary of State for the Home Department intervening) [2008] UKHL 37, in which a decision to prosecute a 15 year old for sexual intercourse with a 12 year old was challenged.

Predictably, as the claimants had already succeeded on other grounds, the Court declined to directly decide this point. However, Munby LJ did rather explicitly hint at his view that such decisions were not capable of engaging Convention rights. At paragraph 78 he said:

…there are, I think, four points which I can and should make. First, there is, as I have noted, no precedent for a claim such as this succeeding; indeed much authority pointing in the other direction. Second, and giving all appropriate weight to what was said in R (C (A Minor)) v Secretary of State for Justice [2008] EWCA Civ 882, [2009] QB 657, and E v Chief Constable of the Royal Ulster Constabulary and another (Northern Ireland Human Rights Commission and others intervening) [2008] UKHL 66, [2009] 1 AC 536, the circumstances as they are here presented to us seem to me to fall far short of anything that could possibly engage Article 3, even in relation to a child. Third, the decision and reasoning in R v G (Secretary of State for the Home Department intervening) [2008] UKHL 37, [2009] 1 AC 92, seem to me to present formidable obstacles to the success of any claim based on Article 8. Fourth, and in a sense encapsulating the previous points, in the context of criminal proceedings Articles 3 and 8 are more likely to be engaged, and potentially breached, in matters of sentence rather than prosecution.

It is perhaps not surprising that he took the view that an Article 3 challenge would fail, given the severity of treatment and impact required in order to engage that provision. However, the Article 8 question is more open to debate. Although Munby LJ expressed the view that the reasoning in R v G suggested that an Article 8 claim would not succeed, that case was very different to the facts in this case.

In R v G, the Article 8 challenge was essentially advanced on the basis that there were two offences with which the Defendant could have been charged in respect of his alleged conduct, and that the decision to prosecute him for the more serious offence meant that his Article 8 rights to a private life were unnecessarily and disproportionately infringed. It was not argued that he should not have been charged at all. Lord Hoffman and Baroness Hale considered that where prosecution was justified, Article 8 was not engaged in relation to the label given to the prosecuted conduct.

Yet this case involved the slightly different question as to whether or not to proceed with a prosecution at all, and as Lords Hope and Carswell pointed out, Prosecutors, as public authorities, are obliged to act compatibly with Convention rights where choices are open to them. Furthermore, in making such a choice, they would have to take into account another important difference in this case: it was not simply E’s right to respect for her private life that was in issue. It was also her right, and that of her sisters, to respect for their family life, in a context where there was concern that a prosecution could destroy the family.

Conclusion

As a whole, the decision of the court underscored the general and accepted principle that in decisions and actions involving children, the welfare of all of the children involved must be given careful consideration. However, there are several other key points to take from this decision that apply more generally:

First, although not necessary to the outcome of the case, the decision is a salutary reminder that the rights which citizens of the UK may invoke are not always necessarily limited to those contained in the ECHR. Any international instrument to which the UK is a party may confer rights upon the populace, and they may be relied upon in national courts if they have been incorporated, of if they can be relied upon as supporting a favourable interpretation of another domestic law.

Secondly, for all decision-makers, it is becoming increasingly clear that it is important for decisions to be accompanied by quite detailed reasons which address the main points of evidence and contention in the decision-making process. This is true in human rights cases, and in judicial review more generally. If not a ground of challenge in itself, a lack of reasons allows a court to reach a conclusion that other more fundamental errors of approach of have been made.

Thirdly, it has not yet been finally decided whether or not a decision to prosecute without more can engage human rights under Articles 3 and 8 of the Convention. The attitude of the court in this case was that these rights are probably not engaged, but the point is still up for debate.

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