R (on the application of da Silva) v Director of Public Prosecutions and another
[2006] EWHC 3204 (Admin), [2006] All ER (D) 215 (Dec)
Queen’s Bench Division (Divisional Court)
Richards LJ, Forbes and Mackay JJ
14 December 2006
The decision in R v Director of Public Prosecutions, ex parte Manning and another [2000] All ER (D) 674 remains good law following the introduction of the European Convention on Human Rights (the Convention) into
domestic law, and thus continues to provide the relevant test concerning the lawfulness of decisions of the Director of Public Prosecutions (DPP) not to bring prosecutions.
Michael Mansfield QC, Hugh Southey and Henrietta Hill (instructed by Birnberg Peirce and Partners) for the claimant.
Jonathan Crow QC and Hugo Keith (instructed by the Treasury Solicitor) for the first defendant.
Emma Dixon (instructed by the Independent Police Complaints Commission) for the second defendant.
The claimant was the cousin of an individual shot dead by officers of the Metropolitan Police Services at Stockwell underground station on 22 July 2005. He was an innocent member of the public but was mistaken for a suicide bomber.
The circumstances of his death were investigated by the second defendant, the Independent Police Complaints Commission, which submitted its main report and file of evidence to the Crown Prosecution Service in January 2006.
Following a review by a senior lawyer within the service, it was announced in July 2006 that the DPP had decided not to prosecute any individual officer for murder, manslaughter or any other criminal offence, but to prosecute the Commissioner of the Police for the Metropolis for an offence contrary to s 3 of the Health and Safety at Work etc Act 1974.
The claimant brought proceedings seeking judicial review of the decision not to prosecute any individual police officer for murder or gross negligent manslaughter. The claimant contended that the existing UK
authority on decisions not to prosecute had to be modified due to Art 2 of the Convention and decisions of the Strasbourg court.
RICHARDS LJ (giving the judgment of the court):
His Lordship considered the Code for Crown Prosecutors issued pursuant to s 10 of the Prosecution of Offences Act 1985. The code in its present form struck a balance which did not appear to have been seriously questioned for the generality of cases; and there were good reasons of principle and policy why the striking of a different balance in a limited category of cases had been rejected.
It was well established that a decision not to prosecute was susceptible to judicial review. The leading authority was Manning. The claimant submitted that Art 2 of the Convention required a departure from the established position, both by the DPP and by the court. He described two decisions of the Strasbourg court, in Öneryildiz v Turkey (2005) 41 EHRR 20 and Bekos and Koutropoulos v Greece (judgment of 13 December 2005, unreported), as forming the rock on which the rest of his arguments were founded. There were three strands to those arguments.
It was submitted that:
(i) The decision not to prosecute any individual officer was itself a violation of Art 2 in the circumstances of this case. Prosecution of the office of commissioner for failures in the system was not good enough.
(ii) The evidential test in the code was itself incompatible with Art 2 in preventing a prosecution in cases where a jury properly directed could convict public officials of offences amounting to a violation of Art 2.
(iii) In a case coming within the scope of Art 2 the court was required to undertake a more intensive review of the DPP’s decision than that laid down in Manning. It was no longer appropriate to adopt a Wednesbury approach.
His Lordship considered Öneryildiz v Turkey, and held that the case did not assist the claimant. It was clear that a prosecution to secure individual accountability for a death had to be brought where it was justified. But there was no suggestion in the judgment that a prosecution had to be brought even where it was not justified. Nor did the judgment purport to lay down any particular test, evidential or otherwise, for determining when a prosecution was to be brought. It did not compel the legal approach contended for by the claimant nor the outcome for which he contended on the different facts of this case.
His Lordship turned to Bekos and Koutropoulos v Greece. That authority was likewise of no assistance to the claimant’s case and there was accordingly nothing to support the claimant’s submission that the evidential test in the code was incompatible with Art 2.
It was certainly relevant to ask whether the evidential test in the code was compatible with the obligation under Art 2 to “put in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions” (the formulation in Osman v United Kingdom (2000) 29 EHRR 245).
In his Lordship’s judgment it was. There was no other reason why the evidential test in the code should be held to contravene Art 2. Similarly, Art 2 did not require a change in the established position regarding judicial review of a decision not to prosecute. The Art 2 context meant that the court had to submit the case to “careful scrutiny”, but that was entirely consistent with Manning and with the court’s general approach in cases involving fundamental human rights. His Lordship did not accept that the legal test to be applied in determining whether the decision under scrutiny was lawful departed from the Wednesbury principles applied in Manning.
He turned to the facts of the case and, after considering the evidence, stated that he was satisfied that the decision not to prosecute was a reasonable one. Indeed, though it was not necessary to go that far, there was no reason to disagree with the decision.
