 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
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 |
||
[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2001] QB 330]
[Help]
R. |
| |
- v - |
||
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. man of Afro-Caribbean origin aged 33. From August 1995
until his death he was held in Blakenhurst Prison awaiting trial for an offence
of violence. He had a record of violence for which he had previously served
three custodial sentences. His aggressive behaviour on remand had led to the
imposition of disciplinary sanctions. parts could be visually inspected for the secretion of drugs, he
refused and instead, it seems, launched an attack on the other of the two
prison officers present (Mr Reynolds). A violent altercation then followed.
Help was summoned. The deceased struggled but was overpowered. He was either
led, in a bent over position, or carried from cell 35. He was, on leaving the
cell if not earlier, carried by prison officers face down and with his head
forward. The senior prison officer present (Unit Manager Nicholson) had
control of the deceased's head. Two more prison officers, Mr Day and Mr
O'Prey, had hold of his left and right arms respectively, both arms being held
behind the back of the deceased with the forearms forced upwards towards his
shoulders. Two more prison officers, Mr Reynolds and Mr Brumby, each had hold
of a leg. An additional prison officer, Ms Trindle, did not participate
physically in the restraint of the deceased, but accompanied the other officers
in order to discharge her duty of ensuring that the deceased was able to
breathe. There were other prison officers in the vicinity who did not
participate in the restraint. The episode was also witnessed by a number of
prisoners. The deceased was carried from cell 35 down the central passage and
through a security gate before being carried down some steps to a servery. The
distance was short and the time taken a few minutes. Although the evidence was
not consistent, it seems likely that the deceased continued to struggle, at any
rate intermittently, until he reached the servery. There a handcuff was
applied to one of his wrists. Then his body suddenly went limp and blood was
seen to come from his ear. Vigorous efforts were made to resuscitate him, but
on examination he was found to be dead. examination of the deceased was made by
Dr Helen Whitwell, a consultant pathologist whose findings have been accepted
subject to points of detail. She found areas of abrasion on the back of the
deceased. There was evidence of blood-staining around the face. There were a
few tiny petechiae over the conjunctivae of the left eye in particular. She
found no obvious marks of injury to the neck, although she noted possible
slight discoloration over an area of 3.5 centimetres at the back. She recorded
evidence of blood visible to the right middle ear, and blood externally in the
right ear. Of the neck structures she reported:Exploration of the structures of the back revealed extensive bruising with
haemorrhage in the central back region extending over 8-9 centimetres. There
was further bruising of the muscular tissues in the region of the scapula, more
markedly on the right. The pathologist's final conclusions were expressed in
these terms:particular evidenced by the
conjunctival petechiae and bleeding into the ear. Other positive findings
include haemorrhage with bruising around the thyroid cartilage and gland with
laryngeal congestion and petechiae. There is also evidence of bruising to the
muscles over the back of the body.exertion as in the fight/flight situation is also likely to
have occurred exacerbating the effects of respiratory restriction. The
deceased had evidence of narrowing to one of the arteries supplying the heart
muscle. This could also have played a role ...Prosecution Service based in Reading. On 27 September 1996 he wrote to
solicitors representing the family of the deceased to inform them that, having
applied the Code for Crown Prosecutors, he had reached the conclusion that
there was not enough evidence to provide a realistic prospect of convicting any
person mentioned in the police report on a criminal charge. Following the
appointment of His Honour Gerald Butler QC to inquire into CPS decision-making
in relation to deaths in custody and related matters, and in anticipation of
his likely recommendations, Senior Treasury Counsel was instructed in September
1997 to advise on whether any prosecution should be brought in the present
case. Counsel wrote a detailed advice in which he agreed with the original
decision that there was insufficient evidence to provide a realistic prospect
of a conviction. manner, with one hand under the deceased's
chin and another on top of his head. He said that during the short journey he
had talked constantly to the deceased, and the deceased himself had spoken. He
received a measure of support from some other prison officers. By contrast, a
number of prisoners said that they had seen the deceased held in a neck-lock
with a prison officer's forearm. It was common ground that such a hold was
forbidden and dangerous. Before directing the jury the coroner indicated his
intention to leave it open to the jury, if so advised, to return a verdict of
unlawful killing on the basis of unlawful act manslaughter. Application was
made for leave to move for judicial review to quash this decision, but leave
was refused. The coroner accordingly left that verdict to the jury, and the
jury returned a unanimous verdict of unlawful killing. No attempt has been
made to challenge that verdict. prosecute in
this case had been assigned to Mr Western, a Special Casework Lawyer employed
by the CPS whose responsibility was specifically to consider and advise on
cases in which death or serious injury had been sustained by persons in police
or prison custody. He attended part of the hearing when leave to move for
judicial review was sought, and part of the coroner's final direction to the
jury, in addition to familiarising himself with the witness statements,
transcripts of evidence and other documents in the case. In the light of all
this material Mr Western, on 2 October 1998, wrote a note recording his view of
the case. In this he summarised what, as he understood, the jury at the
inquest had decided. excessive force had been exerted against the deceased which
could have led to his asphyxiation. Mr Western noted that the coroner had not
left gross negligence manslaughter or murder as possible verdicts to the jury,
but only unlawful act manslaughter. He understood that the unlawful act to
which the coroner had referred the jury had been the unlawful use of force
whilst the deceased was being carried from cell 35 to the servery resulting in
pressure being put on the throat and the deceased thereby being asphyxiated.
The direction of the coroner was, as Mr Western understood, such that the
jury's verdict could only have related to Mr Nicholson. His judgment was that
while the police papers contained a consistent and credible account given by
the prison officers, their cross-examination at the inquest had altered this
position substantially. The prison officers had been closely cross-examined to
establish that unwarranted violence had been deliberately used by prison staff
against the deceased and that there had then been a conspiracy by them to
falsity their account of the incident. Mr Western noted that cross-examination
had found weaknesses in the prison officers' evidence and that they had given
evidence to the inquest which was inconsistent with their statements. Mr
Brumby, one of the prison officers who had conducted the initial search of the
deceased and who had given evidence at the inquest concerning his justification
for ordering the deceased to squat, was regarded by Mr Western as discredited:
examination of the prison officers had,
overall, produced sufficient inconsistencies and inaccuracies in the evidence
of some of the prison officers to give real support to the hypothesis which the
cross-examination sought to establish.prosecution. This approach was recorded in the review
note, and it has not been suggested that it was wrong. extensive examination at the inquest, it
is still not clear exactly what physical mechanism led to Mr 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." manslaughter caused by gross negligence, Mr Western
considered this possible basis of prosecution in his review note. He set out
the elements of the offence as requiring the existence of a duty of care, a
negligent breach of that duty making more than a minimal or negligible
contribution to the ensuing death, and proof that the negligence was such as
could be characterised as gross and meriting criminal sanctions rather than
mere compensation. He considered that a prison officer must owe a duty to take
reasonable care of the health and welfare of a person in his custody, and
concluded that gross negligence manslaughter had to be considered as a
potential offence in this case since control and restraint techniques
specifically dictated that officers must take control of a prisoner's head and
ensure that his ability to breathe was not impaired. Mr Western concluded that
both Mr Nicholson who had control of the deceased's head and Ms Trindle whose
duty was to ensure that the deceased could breathe, owed the deceased a duty of
care of which they were in breach and which led to the death. He viewed both
Mr Nicholson and Ms Trindle as potential defendants. He concluded, however,
that since there was substantial evidence of a violent struggle lasting over a
short period of time with no warnings being given of the difficulties in which
the deceased was finding himself, the Crown would be unable to establish a case
to answer on the ground of gross negligence manslaughter against either of
these potential defendants. No complaint is made of that conclusion. manslaughter Mr Western again reminded himself
of the elements which would have to be established if a prosecution were to
succeed: there had to be proof of an unlawful act committed which was
dangerous in the sense that any reasonable and sober person would inevitably
recognise that the act exposed the victim to the risk of some harm; the
unlawful act had also to be more than a minimal or negligible cause of the
death. Mr Western considered that the order to squat given by Mr Brumby had
not been justified, but did not consider that there was evidence of an
unreasonable response by prison officers to the attack by the deceased upon Mr
Reynolds inside the cell. There was no available evidence save from the prison
officers of what took place in the cell, and the applicants recognise that in
the absence of evidence to challenge the prison officers no complaint can be
made of the decision not to base a prosecution on what took place in the cell.
Mr Western accordingly considered, and the applicants would accept, that the
real question was whether or not the officers had acted reasonably in their
restraint and continued restraint of the deceased during his removal from cell
35 to the servery. Of this he said: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."excessive, and accordingly the only potential defendant to a charge
of unlawful act manslaughter was Mr Nicholson. Mr Western considered in some
detail the witnesses whom the Crown would have to call if Mr Nicholson were
prosecuted for unlawful act manslaughter, discarding some of the potential
witnesses as so unreliable that the Crown need not call them but acknowledging
that other witnesses would have to be called even though their evidence did not
help to establish the guilt of Mr Nicholson. Of Ms Trindle he noted: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."prosecution witness although
his evidence was likely to assist Mr Nicholson. Mr Western's final conclusions
on the prospect of convicting Mr Nicholson of unlawful act manslaughter were
expressed in these terms:Excessive Force) Prosecution's favour in this case is that the cause of
death is entirely consistent with there being an arm across the deceased's
throat, or some other physical obstruction which prevented the deceased
breathing at the critical times of the carrying. Except in one or two
instances the evidence of the other prison officers is silent as to where
Nicholson had his hands and arms during the process of the carrying. I
anticipate that Nicholson himself would give evidence in accordance with his
statement and with the evidence that he gave at Inquest, and that would be to
the effect that as far as he was concerned he thought he was applying Home
Office approved methods of head retention. It seems to me that the most likely
outcome in this case would be that a jury in a criminal trial would be driven
to the view that Nicholson's arm or hand had indeed been across the inmate's
throat at various times during the violent carrying exercise. There is little
in the evidence which would be presented by the Crown which would indicate that
such contact was deliberate or indeed continuous. In order to secure a
conviction on this basis it would be essential for the Prosecution to show that
the excess force being used by Nicholson was a deliberate application of excess
force, rather than as a result of attempts to effect a proper restraint which
were frustrated by the violence of the struggle. In my view, given all the
evidence, there is no realistic prospect that the Crown would be able to
establish that this was indeed the case and I therefore take the view that
there is no realistic view of conviction of Nicholson of this offence."Director, again conferred with Senior Treasury Counsel. A minute of this
conference contains a brief summary of counsel's advice:Manning and tried
to help him. Officer Trindle was supervising the restraint and observed no
problem with Manning's breathing. Director, this time
in the absence of counsel. On this date Mr Western finally took a decision not
to prosecute. Although advice had been taken from Senior Treasury Counsel, and
the Director had been consulted, the decision was his. On 22 February Mr
Western wrote to solicitors now representing the applicants to communicate this
decision: he had reached the conclusion that there was insufficient evidence
to justify any criminal prosecution, and having reviewed the evidence was not
satisfied that it would provide a realistic prospect of convicting any of the
prison officers of any criminal offence arising out of the deceased's death.
In a press release issued by the CPS on the following day the Director was
quoted as saying: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.manslaughter."
18. The solicitors acting for the applicants were far from satisfied by either
the letter or the press release and pressed for a more detailed explanation.
In a letter of 14 April 1999 Mr Western wrote:manslaughter, but I considered also
the possibility of prosecuting certain officers for manslaughter by gross
negligence. My review was itself considered in detail by experienced treasury
counsel. At the end of my review I considered that there were so many factual
inconsistencies in the accounts given by the witnesses whom the Crown would be
required to call, and that the medical evidence was so imprecise as to the
exact cause of Mr Manning's death, that there was not a realistic prospect of
securing a conviction of any person in any criminal proceedings."explains:
"What I was more concerned about, in respect of Unit Manager Nicholson (as will
also be seen particularly from paragraph 9.3 of my Review Note) was the
question of whether there was a realistic prospect of satisfying a jury, beyond
reasonable doubt, that any placing by him of an arm or hand across the throat
of Mr 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."explanation given of the Director's decision not to
prosecute applied for permission to seek judicial review. On 8 July 1999
Collins J. adjourned the application for oral hearing, observing that the
Director should "recognise that there appears to be a cogent argument
and so reasons in greater detail than hitherto would seem sensible". Following
an oral hearing, Mr Nigel Pleming QC in a reserved decision granted permission
to apply. In response to the applicants' evidence served in support of their
application, Mr Western's review note was exhibited and for the first time seen
by the applicants.prosecute or not to prosecute
21. General responsibility for the institution and conduct of prosecutions in
England and Wales is entrusted to the Director, subject to the superintendence
of the Attorney General, and the responsible staff of the Crown Prosecution
Service, although the power to institute a private prosecution is preserved.
Section 10 of the Prosecution of Offences Act 1985 requires the Director to
issue a Code for Crown Prosecutors giving guidance on general principles to be
applied by them in determining, in any case, whether proceedings for an offence
should be instituted. The Code applicable in this case laid down two tests
before a decision to prosecute would be made. The first test was described as
"the evidential test", which had to be satisfied before the second "public
interest" test became applicable. The Code provided: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. prosecute, Crown
Prosecutors must consider whether the evidence can be used and is reliable
..."explanatory Memorandum emphasised that the evidential test was a
"realistic prospect of conviction". This had to be satisfied. If it was not
satisfied there should be no prosecution, no matter how great the public
interest might seem in having the matter aired in court. It was not the role
of the CPS simply to give cases a public hearing, regardless of the strength of
the evidence. There had to be an objective assessment of that evidence. The
CPS should not look for the same standard of proof that a jury or bench of
magistrates would need to find before it could convict, which would set too
high a standard and tend to usurp the role of the court. The test based on
"more likely than not" meant just that. Director not to prosecute is
susceptible to judicial review: see, for example, R. v. Director of Public
Prosecutions, 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. Director in a
case such as the present is obliged to give coherent and sensible reasons for
his decision not to prosecute. Mr Nicholas Blake QC for the applicants accepts
that there is no general duty on the Director to give such reasons for any
decision not to prosecute, and Mr James Turner QC for the Director accepts that
if any reasons are given for such a decision they should be coherent and
correct. But there the modest measure of agreement between the parties comes
to an end. Whereas Mr Blake contends for a legal obligation on the Director to
give reasons for a decision not to prosecute in a case having the particular
characteristics of the present case, Mr Turner argues that the Director is
subject to no legal obligation to give reasons at all. exists.
In such cases, Mr Blake argues, vindication of the rights of victims of
arguable violations of rights guaranteed by the European Convention and the
requirement of an effective remedy require that either a prosecution should be
brought or a sufficiently reasoned decision should be given for not
prosecuting. particular on Articles 1,
2 and 13 of the European Convention: the duty of member states to secure to
everyone within their jurisdiction the rights and freedoms defined in the
Convention, the requirement that everyone's right to life should be protected
by law and the requirement that everyone whose rights and freedoms under the
Convention are violated should have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity. Mr Blake relies on decisions of the European
Court of Human Rights in Kaya v. Turkey (1999) 28 EHRR 1 paragraph 86;
Assenov v. Bulgaria (1999) 28 EHRR 652, paragraphs 102, 104 and 117;
Selmouni v. France (2000) 29 EHRR 403, paragraphs 79 and 87; X and Y
v. The Netherlands (1986) 8 EHRR 235, paragraph 27; and Aydin v.
Turkey (1998) 25 EHRR 251, paragraphs 103 and 104, as establishing the
following propositions: prosecute those responsible;explanation of how the injuries were caused, failing which
a clear issue arises under Article 3 of the Convention; public prosecutor of his functions. extra-judicial materials as reinforcing these
propositions. He draws attention to the view expressed by His Honour Gerald
Butler QC that:prosecute, but there may well be cases where
it would be right to do so. I would suggest, for example, that it might be
right to do so in those cases where there has been a death in custody, and an
inquest jury has returned a verdict of unlawful killing". (Postscript, page
55).public interest in CPS
decisions regarding the prosecution of police officers (especially in cases
involving allegations of serious misconduct). Confidence about the manner in
which such decisions are reached would certainly be strengthened were the CPS
to be obliged to give detailed reasons in cases where it was decided that no
criminal proceedings should be brought. The CPT recommends that such a
requirement be introduced."Prosecution Service, on request, will meet the family of someone
killed as a result of a crime, to explain their decision on prosecution."
29. Among English decisions Mr Blake relies most strongly on the decision of
Sedley J. in R. v. Higher Education Funding Council, ex parte Institute of
Dental Surgery [1994] 1 WLR 242 at 263 where he said:example, personal liberty), that fairness requires that reasons, at
least for particular decisions, be given as of right."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.Director might have received information in
confidence which he would not be free to disclose; some of the information on
which he relied might be subject to public interest immunity; disclosure might
prejudice a continuing inquiry or investigation; such reasons might be
prejudicial and damaging to a third party and lay the Director open to
proceedings for defamation. In a complex case involving a mass of material,
the composition of reasons which adequately summarised the reasons for the
decision would be a very difficult and time-consuming task, which would involve
considerable expense. If in any given case the Director chose to give no
reasons, or very general reasons, it was always open to any aggrieved person
with a sufficient interest to seek permission to apply for judicial review. If
a serious question were raised and permission were granted, the court would be
likely to look for full reasons, as it did here. If no such reasons were
forthcoming, the court might draw the inference that the Director had no good
reasons. If reasons were given, the court would examine them. Giving reasons
in this context would afford the Director the immunity and protection
incidental to court proceedings. This was the manner in which any complaint of
lack of reasons should be pursued.Director is subject to an obligation to give
reasons in every case in which he decides not to prosecute. Even in the small
and very narrowly defined class of cases which meet Mr Blake's conditions set
out above, we do not understand domestic law or the jurisprudence of the
European Court of Human Rights to impose an absolute and unqualified obligation
to give reasons for a decision not to prosecute. But the right to life is the
most fundamental of all human rights. It is put at the forefront of the
Convention. The power to derogate from it is very limited. The death of a
person in the custody of the state must always arouse concern, as recognised by
section 8(1)(c), (3)(b) and (6) of the Coroners' Act 1988, and if the death
resulted from violence inflicted by agents of the State that concern must be
profound. The holding of an inquest in public by an independent judicial
official, the coroner, in which interested parties are able to participate must
in our view be regarded as a full and effective inquiry (see McCann v.
United Kingdom [1996] 21 EHRR 97, paragraphs 159 to 164). Where such an
inquest following a proper direction to the jury culminates in a lawful verdict
of unlawful killing implicating a person who, although not named in the
verdict, is clearly identified, who is living and whose whereabouts are known,
the ordinary expectation would naturally be that a prosecution would follow.
In the absence of compelling grounds for not giving reasons, we would expect
the Director to give reasons in such a case: to meet the reasonable
expectation of interested parties that either a prosecution would follow or a
reasonable explanation for not prosecuting be given, to vindicate the
Director's decision by showing that solid grounds exist for what might
otherwise appear to be a surprising or even inexplicable decision and to meet
the European Court's expectation that if a prosecution is not to follow a
plausible explanation will be given. We would be very surprised if such a
general practice were not welcome to Members of Parliament whose constituents
have died in such circumstances. We readily accept that such reasons would
have to be drawn with care and skill so as to respect third party and public
interests and avoid undue prejudice to those who would have no opportunity to
defend themselves. We also accept that time and skill would be needed to
prepare a summary which was reasonably brief but did not distort the true basis
of the decision. But the number of cases which meet Mr Blake's conditions is
very small (we were told that since 1981, including deaths in police custody,
there have been seven such cases), and the time and expense involved could
scarcely be greater than that involved in resisting an application for judicial
review. In any event it would seem to be wrong in principle to require the
citizen to make a complaint of unlawfulness against the Director in order to
obtain a response which good administrative practice would in the ordinary
course require. expressed by the parties in somewhat different
ways) is whether, accepting that the true reasons for the decision not
prosecute were those in Mr Western's review note of October 1998, the reasons
given to the applicants in February and April 1999 accurately reflected the
true basis of that decision. This issue diminished in importance as the
proceedings progressed since, whether or not the February and April 1999
reasons were adequate and accurate, the applicants have now obtained a full
statement of the reasons, which is open to review. prosecution, whereas in his review note Mr Western had foreseen
little difficulty on this score.prosecute was that set out in Mr Western's review note, we do not think that
was accurately reflected in the press release and the letters to the applicants
in February and April 1999. parties (again expressed in somewhat different
terms) is whether the reasons for the decision set out in Mr Western's review
note of October 1998 were in accordance with the Code for Crown Prosecutors and
capable of supporting a decision not to prosecute. prosecutor "must consider what the
defence case may be and how that is likely to affect the prosecution case",
there was here no basis for anticipating a defence of accidental contact
between Mr Nicholson's arm or hand and the throat of the deceased such as could
have contributed to the death. No prison officer had at any time suggested it.
The prisoners who described contact between Mr Nicholson's arm and the throat
of the deceased did not suggest that the contact had been accidental. Even
more significantly, Mr Nicholson had at no time made such a suggestion, which
was indeed inconsistent with the evidence he gave in his initial statement, in
his police interview and in his evidence at the inquest when he described a
conversation he had had with the deceased while the deceased was being carried
to the servery and later handcuffed. exercise (paragraph
9.3) and in opining that there was little in the Crown evidence which would
indicate that such contact was continuous (paragraph 9.3), Mr Western was
putting an unwarranted gloss on the evidence. There were some witnesses
(including Mr Nicholson himself and other prison officers) who said there had
been no contact at all. There were others, all prisoners, who had seen such
contact. There was no-one who saw any intermittent or occasional contact, and
thus there was no evidential basis for this possible conclusion. experienced prosecutor endorsed by
Senior Treasury Counsel. He rightly reminds us that we have not, like Mr
Western, read all the witness statements and transcripts and listened to the
tapes of the inquest. We have not, as he had, a comprehensive grasp of the
whole case. This was a short, violent incident during much of which the
deceased was, it seems, struggling vigorously. A number of prison officers
were clustered round the body of the deceased, making it difficult for anyone
not directly involved in the restraint, however good his vantage point, to
observe exactly what happened, and several of the prisoners had very poor
vantage points. The difference between the approved method of holding the head
of the deceased and the dangerous headlock method might be very difficult to
recognise from a distance with an imperfect view. The inconsistencies between
the evidence of different prisoners would undermine their reliability, as might
the source of this evidence. While Mr Nicholson himself had consistently
denied holding the neck of the deceased in a lock with his arm, and had given
an account wholly inconsistent with that accusation, the defence were bound to
raise and the jury (on the trial judge's direction) to consider the possibility
that such contact had indeed occurred, in the heat of a violent struggle when
Mr Nicholson was seeking to grab and hold the deceased as best he could, even
without his being aware of it. 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 Mr Nicholson 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:explanation of
how the injury to the throat of the deceased and the interruption of his
breathing occurred. It was on this basis that Mr Western concluded that Ms
Trindle could not be taken as a truthful witness and was therefore a witness
whom the Crown need not call. particularly having regard to his
evidence of constantly talking into the ear of the deceased during the journey
to the servery and of the deceased himself on occasion speaking. 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.public importance, such question having first
been copied to the Applicants and their response obtained.part of the approved judgment)parties. I do not propose to go through it in any
detail. I would, however, draw attention to paragraph 41 of the judgment on
page 28 in which we say: experienced prosecutors on whether a jury is likely
to convict and Mr Western's review note [which we considered at length earlier
in the judgment] does not at all read as if composed to reach a predetermined
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 Mr Nicholson 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." 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." public importance. expect. I am leaving the country on Wednesday. extradition
matter? particular facts. part understand your Lordship to have said that there is an
obligation as a matter of law, but really to have stated that as a matter of
good administrative practice -- exhortation that good administration practice
should be followed.