SY, R (on the application of) v The Director of Public Prosecutions & Anor, Court of Appeal - Administrative Court, April 30, 2018, [2018] EWHC 795 (Admin)

Resolution Date:April 30, 2018
Issuing Organization:Administrative Court
Actores:SY, R (on the application of) v The Director of Public Prosecutions & Anor
 
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Case No: CO/1245/2017

Neutral Citation Number: [2018] EWHC 795 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Combined Court Centre, Oxford Row, Leeds

Date: 30 April 2018

Before:

HIS HONOUR JUDGE GOSNELL

Sitting as a Deputy Judge of the High Court

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Between:

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Gerry Facenna QC and Conor McCarthy (instructed by Ison Harrison Limited) for the Claimant

Louis Mably QC (instructed by Appeals Unit CPS) for the Defendant

Ahmed Baig in person

Hearing dates: 28th March 2018

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JudgmentHis Honour Judge Gosnell:

  1. The Claimant in this case has been granted anonymity by order of Mr Justice Kerr on 4th May 2017. She seeks, through her Litigation Friend, to challenge the Defendant's decision expressed in a letter dated 13th December 2016 (``the decision letter'') to refuse to institute criminal proceedings against Ahmed Baig for offences of rape contrary to section 1(1) of the Sexual Offences Act 2003. The Defendant resists the challenge and contends that the decision was both legally correct and reasonably made for the reasons set out in the letter. Permission was granted by Mr Justice Kerr on 20th October 2017 and I heard helpful submissions from Leading Counsel for both parties at the substantive hearing after which I reserved judgment.

  2. Factual Background

    The Claimant is now 41 years old. She has learning disabilities and physical disabilities arising out of a childhood road traffic accident in Pakistan when she was seven years old. She has been examined by a number of clinicians over the years who all agree she has learning difficulties of moderate severity. It is thought her functioning IQ is in the 55-65 range. She lacks capacity to litigate which is why she proceeds in this case through a Litigation Friend. There has been a debate over time whether she has capacity to consent to sexual intercourse. Recent evidence from Dr Tyrie suggests that she has such capacity in that she has a basic understanding of the sexual act, that it can lead to pregnancy and that the cessation of her periods may indicate pregnancy. Dr Tyrie felt that if she were put into a situation where she was subject to barely veiled threats, her vulnerability to exploitation, as a result of her learning disability, would be such that she would not be able to freely consent.

  3. The Claimant lost her parents in early life and moved to the United Kingdom in 2000 to live with her sister who is now her Litigation Friend. Her sister enrolled the Claimant on a course at Huddersfield Technical College (as it was then known) to help improve her English. Given her vulnerability and intellectual disability the College, in conjunction with Kirklees Council, arranged for the Claimant to be collected by a local taxi firm Mount Taxis and one of their regular drivers was Ahmed Baig, the Interested Party. At some point between 2004 and 2006 the Claimant and Mr Baig had sexual relations the circumstances of which are disputed. In 2006 the Claimant became pregnant and was diagnosed with an ectopic pregnancy and taken to hospital. The pregnancy was terminated but the Claimant did not tell her sister who only discovered this fact about a year later when she accompanied the Claimant to her GP.

  4. The Litigation Friend made a complaint to the police and the Claimant was interviewed by the police with an interpreter in February 2008 and alleged that she had not wanted a sexual relationship with Mr Baig. She alleged that she had both protested and resisted on occasions but that Mr Baig had made various threats against her family by suggesting he had been in prison and could kill them. When interviewed Mr Baig said the sexual activity was consensual and he was not aware the Claimant suffered from any disability.

  5. The original criminal proceedings

    Mr Baig was charged with five counts of sexual activity with a person with a mental disorder impeding choice between 1st September 2004 and 30th April 2006 contrary to section 30(1) of the Sexual Offences Act 2003. He pleaded not guilty and the case was listed for trial at Bradford Crown Court on 8th February 2010. Although she had been interviewed by the police no-one from the Crown Prosecution Service (``CPS'') met with the Claimant or her family prior to the trial. Even on the day of trial there was no conversation with the Crown Prosecutor until she saw the Claimant and her sister to advise them that she he had decided to offer no evidence and Mr Baig was acquitted on the direction of the Judge. It transpired that shortly before the trial the defence had served on the prosecution a report from a consultant psychologist contending that the Claimant did in fact have capacity to choose to engage in sexual activity. Whilst the Crown had expert evidence to contradict this view it was sufficient to persuade the Crown Prosecutor that there was no longer a good prospect of securing a conviction on the counts on the indictment.

  6. The meeting on 22nd July 2010

    A meeting took place on this date between the Claimant and her sister and brother-in-law with the officer in the case and the Crown Prosecutor Heather Gilmore. Minutes of the meeting were prepared and are in the trial bundle [D1]. Ms Gilmore explained that the arrival of the expert report cast doubt on whether the Claimant had capacity to consent to sex and that this, together with other factors had led her to conclude that there was no longer a realistic prospect of securing a conviction of Mr Baig from the jury. She said she felt that the Claimant had already been through so much and it was not in her interests to have to go through the experience of having to give evidence. The Litigation Friend pointed out that Mr Baig had allegedly threatened the Claimant's family but Ms Gilmore said that issues of capacity and consent were legal issues. It does not appear from the record of the meeting that there was any mention that there had been any consideration to amending the charges to rape based not on an absence of capacity but an absence of consent.

  7. The complaints to the CPS and DPP

    Following the introduction by the CPS of the Victim's Right to Review Scheme on 6th August 2013 the Claimant's solicitors wrote to the CPS seeking a review of the decision to discontinue the prosecution of Mr Baig. The CPS declined to review as the scheme did not have retrospective effect. The Claimant's family then wrote to the Director of Public Prosecutions (``DPP'') and correspondence followed with the CPS which culminated in meeting between the Claimant and her family and two Senior Lawyers with Yorkshire and Humberside CPS Jan Lamping and Andrew Penhale. No minutes were produced but a summary of what was discussed was confirmed in a letter dated 26th May 2015 [ D37]. The letter records the views of the two senior lawyers expressed at the meeting.

  8. They confirmed that it would not be possible to reinstitute proceedings against Mr Baig on the same facts without compelling new evidence, of which there was none. Secondly, the medical evidence served before trial relying on the Claimant's admitted consent to medical treatment cast doubt on the assertion that she did not have capacity to choose to have sexual intercourse and that they agreed with the assessment of the Crown Prosecutor that the case could not proceed as it was indicted. The suggestion that the case could have proceeded as an allegation of rape had not been discussed with the family at the meeting in July 2010 but it was conceded that the indictment could have been amended to plead rape, which would not have been affected by the capability point. The letter continued:

    ``Amending the indictment in this way does not appear to have been fully considered by the lawyers in the case. I have spoken to the barrister who dealt with the case when it came to trial and she confirmed that amending the indictment was not considered because that would have fundamentally altered the way that the prosecution was putting its case. She also expressed the view that there would no longer have been a realistic prospect of conviction for offences of rape because of the impact of some of the unused material in the case''.

  9. In the light of this letter the Claimant's solicitors asked that amended charges of rape should be considered but the CPS refused to do so. After a letter before action threatening judicial review was sent the CPS agreed to reconsider the decision not to prosecute Mr Baig for rape and to conduct a full evidential review.

  10. The decision

    The outcome of the review was confirmed by Martin Goldman, Chief Crown Prosecutor for Yorkshire and Humberside in a letter dated 13th December 2016. The letter runs to some six pages and contains both analysis and legal argument which, although relevant to the Claimant's family may not all be strictly relevant to this legal challenge. The essential points made in the decision letter are as follows:

    i) On review of all the evidence now there was sufficient evidence for a realistic prospect of conviction and the public interest test was also satisfied;

    ii) Proceedings could not be reinstituted against Mr Baig for any offences arising out of the circumstances of the original allegations because of the principles laid down in Connelly v DPP [1964] AC 1254 and R v Beedie (Thomas Sim) [1998] QB 356. In particular, any prosecution would be founded on the same facts and could therefore only go ahead if there were special circumstances justifying allowing it to proceed;

    iii) There were no such special circumstances in this case because the offences of rape were ``fully considered'' by both the initial reviewing prosecutor and the barrister attending the trial. In essence the current position was a ``simple disagreement'' with the previous decisions made not to proceed with the rape allegations, and that...

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