[NB: This blog has been anonymised in order to protect the young defendant, who remains of good character]

On 5th August a Crown Court Judge granted Cathy McCulloch’s Abuse of Process application in a matter where she was instructed by Nelson Guest & Partners Solicitors. She attended on that date despite the CBA Action: her client’s mental and physical health were deteriorating rapidly under the strain of the circumstances in which he found himself.

The client was a young man aged 19 1/2. He is now free to move on from a burden which has been hanging over him since soon after he turned 16. He was sent 5-600 unsolicited indecent images of children via a WhatsApp link. He deleted them from his iPhone, but they ended up on his iPad due to iCloud sync. He was arrested following an NCA intelligence tipoff. The Police locked his iPhone completely – apparently by mistake – having tried too many times to use the wrong PIN number.

Not only did the Police take away his ability to prove he had tried to delete the images, but they and the CPS dithered and delayed for over 3 years before bringing him to court. If he was ever charged at all, he should have been charged, tried, and if guilty punished as a youth. But he was charged as an adult for something that happened when he was 16. He thus faced the possibility of years on the sex offender’s register after a likely custodial sentence if convicted.

The judge drew attention to the authorities’ mistakes, delays, their failure to follow the law and their own guidelines, and the way they had deprived the defendant of the chance of a fair trial.

The unbelievable sequence of events was as follows:

  • 17th February 2019: ( INDEX EVENT – Sunday) Date of Receipt of images subject to Counts 1- 3 on indictment: (NB: he had just turned 16).
  • 29th April 2019: (10 weeks 1 day from index event) Police were notified by National Crime Agency of downloading of indecent images to address linked to defendant.
  • 19th July 2019: Execution of search warrant. Devices seized. Defendant interviewed. The Police now had all the evidence they used 2 1/2 years later when they finally referred the matter to the CPS.
  • Late 2020: Defendant’s 18th birthday
  • 16th August 2021 (2 years 24 weeks + 5 days from index event) Police refer file to the CPS for a charging decision.
  • Late 2021: Defendant’s 19th birthday
  • 23rd December 2021: (2 years 40 weeks 6 days from index event) 09.08hrs CPS respond with “Action Plan”. No substantive explanations given on CRIS Report or in a statement as to why the delay in charge.
  • 14th March 2022: (3 years 3 weeks 4 days from index event ) (11 weeks 5 days AFTER it was sent to the CPS for a Charging Decision) Defendant Charged. No substantive explanations given as to why the delay in charge.
  • 11th April 2022: (3 years 7 weeks 4 days from index event) Local Magistrates Court for a First Appearance.

This is what should have happened (assuming he was charged at all):

  1. Defendant is charged as soon as the evidence was available, either 2019/2020;
  2. Defendant appears at the Youth Court;
  3. If not acquitted in the Youth Court, Defendant either pleads guilty or is convicted;
  4. Defendant, having no previous convictions, is given a referral order;
  5. The referral order period ends;
  6. The Defendant’s conviction is spent at the end of the referral order period; and
  7. The Defendant goes off to university to continue his studies, and start a career in his adult life.

What would have happened instead had the judge not granted the Application:

  1. The Defendant goes off to university to continue his studies, and start a career in his adult life;
  2. 2022 – the Defendant is finally charged for offences taking place in 2019;
  3. The Defendant appears at the adult Court (a trial was listed for early 2023, but would likely have been delayed for at least 12 months);
  4. If not acquitted at trial, the Defendant is either convicted or pleads guilty to the offences;
  5. The Court gives the Defendant either an immediate prison sentence or suspended prison sentence;
  6. The conviction remains on the Defendant’s record for several years (length varies depending on the length of sentence), and so will have to be disclosed to potential employer;
  7. Defendant is on the sex offender register for several years (again, depends on the length of the sentence); and
  8. Good luck getting a job.

In their their judgement, the judge drew attention to the Police’s and CPS’ failure to maintain proper standards by complying with the law and their own guidelines:

“The expectations and requirements when dealing with children and young people are enshrined in statute, Codes of Practice and the Code for Prosecutors (for example; section 44 of the Children and Young Persons Act 1933 and section 37 of the Crime and Disorder Act 1998). Regard must be had to the welfare of a young person and prevention of reoffending, youth files must be dealt with expeditiously and without delay. As the CPS Guidance observes; there is little point in conducting a trial for a young offender long after the alleged commission of the offence when the offender will have difficulty in relating the sentence to the offence.”

In conclusion they held:

“He has been deprived of all the protections he would have had had the investigation proceeded expeditiously and potentially deprived of important evidence in his case. The public interest in maintaining proper standards when dealing with young people in this particular case outweighs the public interest in trying the defendant.”