High Court: Judicial review of decision not to prosecute sharing of sexual images denied



Andrew McKeown BL
Andrew McKeown BL

The High Court of Justice in Northern Ireland has denied leave for judicial review to an applicant, who was not named, who wished to challenge a decision of the Public Prosecution Service (PPS).

The PPS had determined that a man, DB, would receive a caution for disclosing a sexual image of the applicant to another person without her consent with the intention of causing distress, contrary to the Justice Act (NI) 2016 s.51(1).

Background

DB took a video of himself and the applicant having sex. He claimed that the video was taken with her knowledge, which she denied. He sent a still image from this video, without her consent, to another person. She was a minor when the video was taken, and when the image was sent. A third party sent it to her brother in October 2018. It was reported to police, and the applicant sought, and was granted, an injunction against DB under the Protection from Harassment (NI) Order 1997.

In March 2019, the PPS sent her confirmation that the investigation file had been received and that a prosecutor would make a decision. In May 2019, the PPS’ victim and witness care unit informed her that DB would be cautioned, rather than prosecuted, for the offence. The letter did not advise of any rights she may have or recourse if she had concerns about the decision.

Her solicitor Bronagh McMullan requested a review of the decision. The matter was referred to the regional prosecutor for a review. In June 2019, Ms McMullan received correspondence which referred to the PPS Code for Prosecutors (2016), advising that the view of the decision-maker was that the case was not open to review. It said the PSNI administered a caution in May 2019. In September 2019, Ms McMullan received correspondence enclosing a letter from Lynne Carlin, assistant director (AD) of the PPS, which advised that she had conducted a review, and that the decision would remain unchanged.

The applicant challenged the original decision and the decision to uphold it, arguing that the PPS misdirected itself in law when making the impugned decision because it acted in breach of the PPS Guidelines for Diversion (2008) and the Department of Justice Victim Charter 2015.

It was alleged that these were breached as the PPS failed to consider her views and the impact the offence had on her and her family. It failed, she claimed, to provide adequate case progression information. She also alleged it failed to consider prosecuting DB for other offences, namely the offence of engaging in sexual activity with a child contrary to the Sexual Offences (NI) Order 2008, and the offence of taking and/or distributing an indecent photograph of a child contrary to the Protection of Children (NI) Order 1978 Art.3(1).

The PPS argued that the challenge to the original decision was unsustainable because the latter decision superseded it and rendered it irrelevant. It was argued that the applicant’s views were taken into account, and were clearly detailed in the police report and decision letter, and that she had been provided with the name of an individual she could call to request an update on progress.

On the alleged failure to give weight to relevant factors including the gravity of the offence, the PPS referred to a letter of the review decision letter which considered the offence “serious”, as it was a hybrid offence, prosecutable in either the Crown Court or the Magistrates’ Court, with a maximum two-year sentence if prosecuted on indictment.

The PPS noted that in order to sustain a prosecution under the Sexual Offences Order, it must be established that the complainant was under 16 years at the time of the alleged offence. While the applicant claimed that the video was taken “around October 2016”, when she would have been under 16, DB said that she was over 16 when the recording was made. The recording could not be dated through forensic examination. The AD said the image, which was of relatively poor quality, showed two people having sex. They could not identify either person shown, and it was not possible to assess the age of persons in the image. Without DB’s admissions, she would not have been satisfied that the evidential test was met for any offence. His admissions, however, could not prove when the recording or image were created or shared.

Lord Justice Seamus Treacy and Mr Justice Adrian Colton considered whether flaws in an initial decision, having been reviewed by an internal review, could be relied upon by a complainant challenging the legality of the internal review decision. Lord Justice Treacy said that it would “appear pedantic and counterproductive” to review for a second time materials used to deliver an initial decision when that decision had already been reviewed. The process had checks and balances built into it. Internal reviews are an important internal appeal mechanism which is capable of correcting early errors if any are found. The Judicial Review Court should not entertain questions that have become academic (L v DPP [2013] EWHC 1752).

The applicant recognised that judicial review of prosecutorial decisions is “exceptional” (Re Lawrence Kincaid’s Application [2007] NIQB 26), arguing that she met the requirement of exceptionality, as a vulnerable young victim of a serious offence, she had been placed beyond the protection of the law, citing R (B) v Director of Public Prosecutions (Equality and Human Rights Commission intervening) [2009] EWHC 106 (Admin). The Victim’s Charter states that while the victim’s consent to a decision is not necessary, their views should always be considered.

The judges said that the obligation on the decision maker “is to carefully analyse all the available evidence and apply the prosecution test in respect of all potential relevant offences identified”. The judges said this was done and that the application of the public interest test by the PPS resulting in a caution rather than prosecution was “unimpeachable”.

Conclusion

The judges refused leave and dismissed the application for judicial review.

© Irish Legal News Ltd 2021



Other judgments by Lord Justice Treacy