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Challenging the decision to prosecute a 10 year old

R (on the application of CM) v Crown Prosecution Service, [2014] EWHC 4457 (Admin)

The High Court confirmed that it was rare for a case challenging the decision to prosecute to succeed. However, this is a useful case which reviews the case law in this area, and confirms that the courts will take a different approach when the Claimant is a child.


CM was aged 12 at the date of the hearing, but was 10 years old when the allegations were made. He was accused of sexual activity with a child, who was aged 8 at the time; the allegations were that he had incited the 8 year old to put his penis into CM’s mouth, and further that he had touched the 8 year old’s penis. The initial decision had been to offer CM a conditional caution, however this was not possible since CM had denied the allegations.

Since these events CM had been moved to a residential home where he was undergoing therapy. Despite defence representations, the Crown Prosecution Service decided to proceed to prosecute. The Claimant argued it was irrational to proceed and contrary to CPS policy.

The High Court found against the claimant, and allowed the prosecution to continue. The court emphasised that decision to prosecute was a matter for the Crown Prosecution Service and it would only be in rare cases that the court would interfere with this discretion. The court did, however, accept that the considerations were different when considering a case involving a child, and it was not sufficient for CPS to show a realistic prospect of conviction, as the Crown’s stated policy on out of court disposals and diverting children away from criminal justice system needed to be considered (see paragraph 19 of the judgement).