R (on the application of Dennis) v Director of Public Prosecutions
[2006] EWHC 3211 (Admin), [2007] All ER (D) 43 (Jan)
Queen’s Bench Division (Divisional Court)
Waller LJ and Lloyd Jones J
29 December 2006
The High Court has given guidance in dealing with judicial review of a decision by the Crown Prosecution Service (CPS) not to bring a prosecution.
Richard Hermer (instructed by Thompsons) for the claimant.
Milwyn Jarman QC (instructed by the CPS) for the Director of Public Prosecutions (DPP).
The claimant’s son (the deceased) was aged 17 when he started work as a labourer with C. Work was being carried out to refurbish buildings at a retail park. C had been subcontracted to carry out cladding work. Some materials had been stored on the roof of one of the buildings for safe-
keeping. While attempting to retrieve some of those materials, the deceased fell through a skylight on the roof and died. The inquest jury
returned a verdict of unlawful killing.
The CPS considered a prosecution against C for manslaughter, but refused to prosecute such a case on the basis that it failed to satisfy the Code for Crown Prosecutors. In particular, although the solicitor dealing with the case was satisfied that the proposed defendants owed a duty of care to the deceased and were in varying degrees in breach of that duty, he was not satisfied that the degree of negligence displayed was so severe that it would amount to criminal negligence.
The claimant applied for judicial review of the decision not to prosecute. He maintained that it had been his son’s first job working at heights or on roofs, that he had no experience of so doing and had never received any training. He said that C should have instructed his son not to go onto the roof at all, or at least given him firm directions about the danger of roof lights. He was critical of the lack of training. A separate prosecution taken by the Health & Safety Executive was stayed pending the outcome of the application for judicial review.
LORD JUSTICE Waller:
His Lordship considered the relevant authorities. In R v DPP, ex p C [1995] 1 Cr App R 136 Lord Justice Kennedy said: “From all these decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the DPP acting through the CPS arrived at the decision not to prosecute:
(i) because of some unlawful policy…or
(ii) because the DPP failed to act in accordance with her own settled policy as set out in the code; or
(iii) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.”
Thus it was established that a failure to act in accordance with the policy set out in the code would provide a basis on which the claimant could succeed.
Regarding the proper approach to the code, the court had been referred to R v DPP, ex p Treadaway (31 July 1997, unreported), a case in which counsel for the applicant relied on a failure to analyse evidence and a failure to take properly into account a judgment in civil proceedings as breaches of the code.
In R v DPP, ex p Jones [2000] IRLR 373, the court found that the decision maker had not understood the law accurately and that he had failed to take into account certain matters. His Lordship referred finally to R v DPP, ex p Manning [2001] QB 330, [2000] All ER (D) 674.
His Lordship then set out the approach to applications such as that of the claimant:
(i) If it could be demonstrated on an objective appraisal of the case that a serious point or serious points supporting a prosecution had not been considered, that would give a ground for ordering reconsideration of the decision.
(ii) If it could be demonstrated that in a significant area a conclusion about what the evidence was to support a prosecution was irrational, that would provide a ground for ordering reconsideration.
(iii) The points had to be such to make it seriously arguable that the decision would otherwise be different, but the decision was one for the prosecutor and not for the court.
(iv) Where an inquest jury had found unlawful killing, the reasons why a prosecution should not follow needed to be clearly expressed.
His Lordship turned to the facts of this case. The CPS solicitor dealing with the case had not dealt with the real thrust of any case that might be brought against C. There was evidence of a reason why the deceased might have gone on the roof—he had been instructed to do so as part of his duties as an employee, without any training or induction course, or any serious warning about skylights, and had not been told not to do so before receiving the induction course.
There was, furthermore, force in the point that the solicitor had failed to take account of the seriousness of a failure to give proper instruction not to go on the roof before induction or proper instruction in relation to working on a roof and particularly a roof with skylights.
Moreover, it could not be said that he had given clear reasons about why the inquest jury’s verdict should not have led to a prosecution. Those failures provided a basis on which it was right to refer the matter back to the prosecution. It was seriously arguable that a different result might be reached once account was taken of those matters. His Lordship stressed again, however, that it had to be appreciated that the matter was still one for the prosecuting authority.
The application would therefore be allowed. Mr Justice Lloyd Jones agreed.
