Leonie Marshall v DPP
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 24 January 2007 |
| Neutral Citation | [2007] UKPC 4 |
| Court | Privy Council |
| Docket Number | Appeal No 2 of 2006 |
| Date | 24 January 2007 |
[2007] UKPC 4
Present at the hearing:-
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Carswell
Lord Mance
Privy Council
[Delivered by Lord Carswell]
On 13 December 1999 Patrick Genius, a man of 26 years, was shot by police officers, sustaining wounds from which he died. An inquest jury subsequently brought in a verdict which reads "person or persons criminally responsible", but the Director of Public Prosecutions ("DPP") decided not to bring any prosecution. The mother of the deceased Leonie Marshall, the appellant in this appeal, brought an application for judicial review of the DPP's decision. The Jamaican courts refused her application and she appealed with the leave of the Court of Appeal to the Privy Council. At the conclusion of the hearing the Board stated that they would humbly advise Her Majesty that the appeal should be dismissed and that they would give their reasons for this conclusion at a future date. This judgment contains the Board's reasons for that decision.
Evidence was given at an inquest into the death of the deceased by three police officers, Corporal James, Detective Corporal Francis and Corporal Grant, who were the only eye-witnesses of the shooting incident. The first contact with the deceased was made by Cpl James, who deposed that at 5.10 pm approximately on 13 December 1999 he was travelling in his private car on Hope Boulevard, St Andrew when he saw two men on a motor cycle. He suspected that they had been involved in local robberies and followed them at a distance, summoning assistance from his station. This came in the form of Det Cpl Francis and Cpl Grant in a police car.
The three officers drove to a point about 35 yards from where the two men had alighted from the motor cycle and got out of their cars. When they saw the officers both men pulled guns from their waistbands and fired at them. James returned fire while the other two officers took cover. One of the two men jumped on to the motor cycle and made his escape. The other, later identified as Patrick Genius, climbed a fence into the grounds of a school and while he was scaling it Francis fired one shot at him. He ran across a playing field towards some bushes, with the officers in pursuit. As he ran he fired another shot at the officers and Francis fired another two shots at him. The officers headed after him into the bushes. While they were searching for him, Genius appeared out of the bushes and fired at them. James and Grant both returned fire and Genius fell to the ground, bleeding and apparently dead. James fired six shots in all in the course of the incident, Francis three and Grant four. They each deposed that they found beside Genius' body a Smith & Wesson .38 revolver, with four spent cartridges and one live round in the chamber. He was taken at once to hospital, where he was pronounced dead on arrival. It was suggested to the officers in cross-examination by counsel for the next-of-kin at the inquest that the deceased had been shot in the back of the head when they went up to him after he fell, but they all denied the suggestion.
A post mortem examination of the body of the deceased was carried out on 30 December 1999. The pathologist Dr Sarangi deposed at the inquest that he found five wounds on the body:
Death was attributed to the head wounds. There was no gunpowder deposition at the site of any of the wounds, which indicated that they had been fired from a distance greater than close range, normally placed at two to three feet. Dr Sarangi stated in the course of questioning that the skull bone, being a rigid structure, can change the trajectory and speed of a bullet which has struck it. He agreed that the wounds were consistent with a person running away from the person firing and perhaps turning his head when hit. They were also consistent with his having been standing without moving. The pathologist said that it is possible for a person who receives an injury such as wound (v) to keep running for a period of up to five minutes. It was possible that wounds (iv) and (v) could have caused the deceased to fall immediately or he could have performed normally for a little while.
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(i) a perforating entrance wound on the back of the left thigh, with an exit wound on the front of the thigh one centimetre lower;
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(ii) a perforating entrance wound on the right outer aspect of the right thigh, with an exit wound on the front of the thigh, some two centimetres higher;
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(iii) a superficial bullet graze on the back of the head in the mid line;
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(iv) a penetrating circular entrance wound on the left side of the head above the left ear. The bullet travelled in a downward trajectory after it entered the skull cavity. It was not recovered by the pathologist because of its location inside the cranium.
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(v) A perforating circular entrance wound "on the left side back of head" close to the left ear, with an exit wound on the right side of the face over the zygoma bone. The exit wound was 3 cm lower than the entrance wound, indicating that the bullet took a downward trajectory inside the skull.
Swabs were taken from the hands of the three police officers about 9 pm on 13 December 1999 and from the hands of the deceased about 10 pm the same evening. A forensic scientist Marcia Dunbar, who tested the swabs for gunshot residues, deposed at the inquest that she found no trace of residue on any of the swabs taken from the officers. She found gunshot residue at trace level on the swab from the palm of the right hand of the deceased, but no residue on the swabs from the back of the hand. She stated in her evidence that one would expect an elevated level of residue to be deposited on the back of the firing hand. The location of the deposit of residue may depend on how the firer holds the gun. The amount of residue found on the palm of the deceased's hand could have been transferred there by rubbing. If a subsequent attempt is made to clean hands which have been contaminated by gunpowder residue little or no trace may be left.
An inquest into the death of the deceased was held in April and May 2001. It appears that the next-of-kin were represented by counsel, who cross-examined the witnesses, but that the three police officers were not. On 27 May the jury returned a verdict that the deceased died as a result of gunshot wounds, adding the words recorded in the inquisition "And do further say person or persons criminally responsible." The appellant averred in her grounding affidavit that the Coroner told the jury when they were about to deliver their decision that they should not "call any names". As the inquisition did not charge any specific person with murder or manslaughter, the Coroner correctly did not issue a warrant for arrest in pursuance of section 20(1) of the Coroners Act, but referred the matter to the DPP.
Under section 94(3)(a) of the Constitution of Jamaica the DPP has power, in any case where he considers it desirable so to do, to institute and undertake criminal proceedings against any person in respect of any offence against the law of Jamaica. Section 94(6) provides:
"In the exercise of the powers conferred upon him by this section the director of Public Prosecutions shall not be subject to the direction or control of any other authority."
His independence is underpinned by the provisions of section 96, specifying the manner in which he may be removed from office, which is only for inability or misbehaviour. The DPP examined the material available to him and decided that no prosecution should be brought against anyone, on the ground of insufficient evidence on which to base a charge.
The appellant placed some reliance upon the fact that the DPP gave a radio interview on 9 January 2002, in which the circumstances of the death of the deceased and his decision not to prosecute were discussed at some length. He made it clear that before a prosecution could be instituted it was necessary for there to be evidence which could form the basis of a prosecution case, which was lacking in the instant case. In the course of the interview the following exchange took place:
"PB [the interviewer]: In relation to his hand, you know if it was swabbed and if so …
DPP: My recollection is that the swabbing of his hands revealed … ahm … residue from gunpowder.
PB: Yes, now we spoke with Dr Carolyn Gomes earlier and she suggested that the … according to the forensic expert, such residue as there may have been was inconsistent with Mr Genius firing or discharging a firearm.
DPP: I can't recall seeing any such statement by the forensic expert, but I will look at that again."
The appellant brought the present application for judicial review of the DPP's decision, claiming that he ought to have charged the three police officers with the murder of Patrick Genius. The basis of the claim was that there was sufficient material in the inquest depositions to throw doubt on the veracity of the officers' evidence and create a prima facie case that they were not acting in self-defence as they had averred. The appellant also sought judicial review of the DPP's decision not to disclose any further reasons for not instituting proceedings against the officers and of the Coroner's decision to refer the matter to the DPP rather than charge the officers. The latter decision was not the subject of challenge in the appeal before the Board. She asked for orders of mandamus and certiorari, declarations and an injunction and an order directing the DPP to have the body of the deceased exhumed to retrieve the bullet lodged in the head.
The appellant's application for leave to apply for judicial review came before Jones J (Ag) in the Supreme Court, who in a written decision given on 15 April...
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