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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Armani Da Silva, R (on the application of) v Director of Public Prosecutions & Anor Rev 1  EWHC 3204 (Admin) (14 December 2006)
Cite as:  EWHC 3204 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FORBES
MR JUSTICE MACKAY
| The Queen (on the application of Patricia Armani da Silva)
|- and -
|The Director of Public Prosecutions
The Independent Police Complaints Commission
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A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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
Crown Copyright ©
LORD JUSTICE RICHARDS :
The material before the court
Decisions whether or not to prosecute: the established position
"5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a 'realistic prospect of conviction' against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.
5.3 A realistic prospect of conviction is an objective test. It means that a jury …, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that criminal courts themselves must apply. A court should only convict if satisfied so as to be sure of a defendant's guilt.
5.4 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable …."
Judicial review of decisions not to prosecute: the established position
"23. Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R v Director of Public Prosecutions, Ex p C …. 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."
"41. We have found this a very difficult issue to resolve. We accord great weight to the judgment of experienced prosecutors on whether a jury is likely to convict, and Mr Western's review note does not at all read as if composed to reach a pre-determined conclusion; the note suggests that the author was seeking to review the case fairly and even-handedly, and the final conclusion against prosecution comes as something of a surprise. In the end we are, however, satisfied that there are five points which [the officer] as defendant would have to overcome if he were to defeat the prima facie case which in Mr Western's judgment lay against him and these were points which Mr Western did not address and resolve. Put in their simplest terms these points are ….
42. In our judgment these are matters which should have been taken into account on an objective appraisal of the prospects of success of a prosecution if brought, and the failure to take them into account vitiates the Director's decision. It also appears to us that Mr Western (inadvertently, we feel sure) applied a test higher than that laid down in the Code. We accordingly quash the decision. In doing so we must emphasise that the effect of this decision is not to require the Director to prosecute. It is to require reconsideration of the decision whether or not to prosecute. On the likely or proper outcome of that reconsideration we express no opinion at all."
The impact of article 2 ECHR on the established position
"91. … Where lives have been lost in circumstances potentially engaging the responsibility of the State, [Article 2] entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished ….
92. In this connection, the Court has held that if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an 'effective judicial system' does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available ….
93. However, in areas such as that in issue in the instant case, the applicable principles are rather to be found in those which the Court has already had occasion to develop in relation to the use of lethal force, principles which lend themselves to application in other categories of cases.
In this connection, it should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability … but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities ….
In the Court's view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities ….
Where it is established that the negligence attributable to State officials or bodies on that account goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity …, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative ….
94. To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation ….
96. It should in no way be inferred from the foregoing that Article 2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence … or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence …..
On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts …. The Court's task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined."
"In my view and in the light of all those considerations, the Prison Service's decision, when subjected to the most anxious scrutiny by this court, is not just well within the bounds of what was reasonable, given the importance of the human rights in play. It justifies the 'deference' which the court should accord it and demonstrates the competence the court would expect of it in considering and reaching so critical a decision. For what it is worth, I do not share the uncertainty of Ouseley J as to how the court should decide the matter if the law had developed to the stage where it could make a decision on the merits for itself. I would have reached the same conclusion as the Prison Service, for the reasons it gave."
The lawfulness of the Director's decision
"I will deal with the most serious charges first. I considered the actions of the two police firearms officers who actually shot Jean Charles. In the circumstances of this case, if the prosecution could prove that they were not acting in self defence (either of themselves or others) then they would be charged with murder. The order was given that Jean Charles was to be stopped from getting on the train. Although officers in the control room intended that Jean Charles should be arrested outside the station, the firearms team were not in place to make such an arrest, nor was this intention made explicit to the firearms officers who were being sent down to the train. All the available evidence suggests that they believed that Jean Charles had been identified as a suicide bomber, that they had been directed to stop him from blowing up the train and that they had to shoot him to prevent that from happening.
The burden would be on the prosecution to prove beyond reasonable doubt that these two officers did not honestly and genuinely believe that they were facing a lethal threat and so I looked to see if there was sufficient evidence to disprove that they had such an honest and genuine belief. Both officers stated that Jean Charles was wearing a 'bulky' jacket when they saw him but in fact Jean Charles was wearing a simple denim jacket. I therefore took this into account as it could indicate that the officers had lied. However even if I could prove that the officers had lied, rather than simply being mistaken, this alone would not be enough to commence a prosecution for murder as there could be other reasons for an officer to lie. I also considered their explanations of Jean Charles's movements when they approached him, to see if there was evidence that they had fabricated those accounts to justify their actions. Both refer to Jean Charles getting up and advancing towards them with his hands down by his side before he was tackled by a surveillance officer and forced back into the seat. The firearms officers then shot Jean Charles. I had to consider whether the prosecution could argue that the restraint meant that no bomb could be detonated and that the firearms officers' actions were unlawful.
However I must bear in mind that this happened in a matter of seconds and there is some independent evidence that supports the officers' accounts that they feared Jean Charles might detonate a bomb. A witness sitting opposite Jean Charles said 'I got the impression that he was reaching to the left hand side of his trouser waistband.'
I also took into account whether the number of bullets fired might help to found a prosecution but concluded that it did not. The number of bullets would only have been relevant if the intent of the officers was in question but it does not undermine their claim that they acted in self-defence. It could equally be argued that it supported their belief that Jean Charles was a person about to blow up the train and that their actions were the only means available to prevent significant loss of life.
As I cannot prove the officers did not act in genuine self defence, I cannot charge them with murder or any other offence of assault, including manslaughter.
There is some disagreement between officers and the members of the public as to whether any warning was given that armed police were approaching the train. In a situation such as this, where a warning to a suspected bomber could be fatal for officers and the public, no warning should be given. However some police officers say that they did hear a call of 'armed police' before the shooting and although passengers did hear officers shouting as they ran down the stairs, none of them heard words 'armed police.' Both of the officers who shot Jean Charles say that they shouted 'armed police' immediately before they fired but whether they did, and if so, whether it was intended as a warning to Jean Charles or to others in the carriage is unclear. There is no doubt that some police officers did shout something before any shots were fired but it is not possible to be certain what that was. Unless I could prove that officers had lied and had done so to mislead any investigation, I could not prosecute them for attempting to pervert the course of justice.
Next I carefully examined the roles of those police officers concerned in planning the surveillance and stop and those who carried it out. As you will know there were a number of people involved and there is no doubt that messages were misinterpreted with tragic consequences. I have considered whether any errors or other conduct by individuals could be categorised as criminal. In this I have applied the law on gross negligence manslaughter, misconduct in public office and the Health and Safety at Work Act. Even where I found that individuals had made mistakes I found insufficient evidence that those mistakes were so bad that they could be described as criminal. As criminal proceedings are to be brought against the Commissioner, I cannot provide you with a detailed account of the conduct of those individuals, as that conduct will form part of the prosecution case."
Disclosure of the underlying evidence