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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Manning, R (On The Application Of) v Director Of Public Prosecutions [2000] EWHC Admin 342 (17 May 2000) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2000/342.html Cite as: [2000] EWHC Admin 342, [2001] QB 330, [2000] EWHC 342 (Admin), [2001] 1 QB 330 |
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The
Director of Public Prosecutions, |
Manning
("the deceased") who
died in Blakenhurst Prison on 8 December 1995. They seek judicial review of
the decision taken on behalf of the Director of Public Prosecutions not to
prosecute any defendant for manslaughter as a result of the manner in which the
deceased met his death. The grounds of the application are, in brief, that no
adequate reasons for the decision were given, that the reasons which were given
to the applicants did not reflect the true basis of the decision and the true
reasons, now disclosed, are unsustainable.
Manning
's death.
Despite the inability of Dr Whitwell to specify the precise cause of death, it
is my view that this would not present any great difficulty in the event of a
criminal trial. I have no doubt that a jury could properly reach the view that
Mr
Manning
died because the way in which he was restrained/carried from his
cell to the servery area prevented him from breathing. On that basis I do not
consider that the difficulties in attributing specific medical reasons for
death would present any significant obstacle to a successful prosecution."
Manning
from his cell towards
the Segregation Unit of the Prison would be subject to the prison rules
concerning the use of violence. On all of the available evidence the prisoner
was very violent and difficult to control and therefore much force was needed
in order to transport him. Wrist locks had been applied in the approved Home
Office method and a head restraint had been applied to the Deceased. There are
differing accounts over whether or not that head restraint was carried out in
approved Home Office fashion, or whether it was more in the nature of a "neck
lock". In view of the amount of evidence that a dangerous neck lock was
applied to the prisoner, this is an aspect which must give rise to a potential
offence and therefore potential defendants must be identified."
Manning
's head was always properly held. If such had been
the case then it seems reasonable to assert that
Manning
would never have died.
Accordingly, her testimony cannot be taken as truthful and therefore (even if
she is not prosecuted) I do not consider that the Crown would be obliged to
call her as part of their case."
Manning
and tried
to help him. Officer Trindle was supervising the restraint and observed no
problem with
Manning
's breathing.
Manning
met his tragic and untimely death during a violent struggle with
prison officers. The principal cause of Mr
Manning
's death was asphyxiation,
the result of a single, or, more likely, a number of factors.
Manning
's death, that there was not a realistic prospect of
securing a conviction of any person in any criminal proceedings."
Manning
was unlawful, in the sense of being a deliberate application of
excessive force, rather than the result of attempts to effect a proper
restraint, which were frustrated by the violence of the struggle, or even of
self-defence. It seemed to me that these were points that would inevitably be
taken on behalf of Unit Manager Nicholson if he were to be prosecuted. I
foresaw that his defence would be to the effect that he did not knowingly place
a hand or arm against Mr
Manning
's throat, but that if, unwittingly, he had
done this in the heat of the struggle it had not, in the particular
circumstances, been unlawful. In this regard, it seemed to me that the
inconsistencies in the evidence of the various eye-witnesses as to the precise
circumstances and manner in which Mr
Manning
was held and in which a hand or
arm came into contact with his neck were likely to present a problem for the
prosecution and that the medical evidence could not resolve that problem."
ex parte
C [1995] 1 Cr. App. R. 136. But, as the decided
cases also make clear, the power of review is one to be sparingly exercised.
The reasons for this are clear. The primary decision to prosecute or not to
prosecute is entrusted by Parliament to the Director as head of an independent,
professional prosecuting service, answerable to the Attorney General in his
role as guardian of the public interest, and to no-one else. It makes no
difference that in practice the decision will ordinarily be taken by a senior
member of the CPS, as it was here, and not by the Director personally. In any
borderline case the decision may be one of acute difficulty, since while a
defendant whom a jury would be likely to convict should properly be brought to
justice and tried, a defendant whom a jury would be likely to acquit should not
be subjected to the trauma inherent in a criminal trial. If, in a case such as
the present, the Director's provisional decision is not to prosecute, that
decision will be subject to review by Senior Treasury Counsel who will exercise
an independent professional judgment. The Director and his officials (and
Senior Treasury Counsel when consulted) will bring to their task of deciding
whether to prosecute an experience and expertise which most courts called upon
to review their decisions could not match. In most cases the decision will
turn not on an analysis of the relevant legal principles but on the exercise of
an informed judgment of how a case against a particular defendant, if brought,
would be likely to fare in the context of a criminal trial before (in a serious
case such as this) a jury. This exercise of judgment involves an assessment of
the strength, by the end of the trial, of the evidence against the defendant
and of the likely defences. It will often be impossible to stigmatise a
judgment on such matters as wrong even if one disagrees with it. So the courts
will not easily find that a decision not to prosecute is bad in law, on which
basis alone the court is entitled to interfere. At the same time, the standard
of review should not be set too high, since judicial review is the only means
by which the citizen can seek redress against a decision not to prosecute and
if the test were too exacting an effective remedy would be denied.
ex parte
Institute of
Dental Surgery [1994] 1 WLR 242 at 263 where he said:
ex parte
Doody [1994] 1 AC 531 at 564E. In R. v. Director
of Public Prosecutions,
ex parte Treadaway (Divisional Court, unreported,
31 July 1997) this Court held that the duty to give reasons arose from a duty
to act fairly which bound anyone in an adjudicating role, but that the Director
was not, when deciding whether to prosecute, in an adjudicating role and so not
subject to these duties (see transcript of judgment, pages 14 to 15).
Parliament could have imposed an obligation on the Director to give reasons for
such decisions, but had not chosen to do so. This was not surprising, since
the Phillips Royal Commission on Criminal Procedure (Cmd. 8092, paragraph 651)
had recommended against such a proposal and when giving evidence to the Trade
and Industry Committee of the House of Commons on 26 February 1992 the Attorney
General had strongly opposed it, recognising the potential injury to a person
who was not to be prosecuted but against whom suspicion and accusation would be
publicly ventilated (HC 86 - xiv, pages 445 to 446). In so far as there was a
Convention requirement for a full, independent and effective inquiry into an
unexplained death in custody, that was provided by the coroner's inquest, in
which the applicants had been able to participate fully. It was increasingly
the practice of the Director to give reasons to interested parties for
decisions such as this, for the sake of greater openness, but this was not done
as a matter of legal obligation.