R Alina Joseph v The Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell,Mr Justice Dove |
| Judgment Date | 24 January 2022 |
| Neutral Citation | [2022] EWHC 131 (Admin) |
| Docket Number | Case No: CO/3863/2020 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 131 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice,
Strand, London, WC2A 2LL
Lord Justice Popplewell
and
Mr Justice Dove
Case No: CO/3863/2020
Michael Mansfield QC and Philip Rule (instructed by Imran Khan and Partners) for the Claimant
Duncan Penny QC and Paul Jarvis (instructed by the Crown Prosecution Service) for the Defendant
Hearing date: 13 January 2022
Approved Judgment
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Introduction
The claimant is the mother of Christopher who died on 1 July 2019 aged 13. She brings an application for judicial review of the decision of a Specialist Prosecutor Ms MacDaid, following a review pursuant to the Victims Right of Review (“VRR”) scheme, that no proceedings should be brought against a suspect, Q, who was 14 at the time of Christopher's death. Ms MacDaid concluded that there was sufficient evidence to give rise to a realistic prospect of Q being convicted of the offence of unlawful act manslaughter, but that a prosecution would not be in the public interest.
At the time of his death, Christopher was living with his mother and six brothers and sisters in Mountain Ash, South Wales. He attended the local comprehensive school where he had a wide group of friends and was popular. On the day in question some sixteen of these friends, all aged 13 or 14, were playing in and around an area known as the Red Bridge over the Cynon River. Some of the boys were jumping into the river; others in the group were sitting chatting. Christopher was at one point standing next to the bridge on a concrete ledge which was in part topped with layers of large stones. He was in his bathing shorts and was prevaricating as to whether to jump in. Q was seen to push him in the back causing him to fall into the river. He immediately got into difficulties because he could not swim. Others jumped in to help him, including Q. However they were unable to assist him as he kept pulling them under water in panic, and tragically he drowned.
Christopher's family believed this to be a racially motivated hate crime as Christopher was black and all the other children present were white. Ms MacDaid gave careful consideration to this suggestion and addressed it in detail in her review, concluding that there was no evidence to support it. There is no challenge to that aspect of her decision and I need say no more about it.
The policy guidance
The principal policy guidance for prosecutorial decisions is contained in the Code for Crown Prosecutors (“the Code”) issued by the Director of Public Prosecutions pursuant to section 10 of the Prosecution of Offences Act 1985. Paragraph 2.10 of the Code provides that prosecutors must also comply, amongst other things, with policies and guidance of the CPS issued on the behalf of the DPP unless there are exceptional circumstances. Such CPS guidance covers specific offences and offenders. The guidance relevant in this case includes the CPS Guidance on Youth Offenders (“the Youth Offenders Guidance”) and the CPS Guidance on Homicide (murder and manslaughter) (“the Homicide Guidance”).
The Code
The Code test as to whether to start or continue a prosecution has two stages, the evidential stage and the public interest stage (paragraphs 4.1 and 4.2). In relation to the evidential stage, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction, which means that the defendant is more likely than not to be convicted of the charge alleged (paragraphs 4.6 and 4.7). The public interest stage of the test requires that, where the evidential stage is passed, prosecutors must go on to consider whether a prosecution is required in the public interest (paragraph 4.9). A prosecution will not automatically take place merely because the evidential stage is met: a prosecution “will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour” (paragraph 4.10).
Prosecutors are required to consider each of the questions set out in paragraphs 4.14(a) to (g) in identifying and evaluating relevant public interest factors tending for and against prosecution. They are not exhaustive; not all the questions may be relevant in every case; and the weight to be attached to each of the factors identified as relevant will vary according to the facts and merits of each individual case (paragraphs 4.11 to 4.12).
Paragraph 4.14(a) identifies as a factor the seriousness of the offence, requiring an assessment of both culpability and harm. Paragraph 4.14(b) addresses culpability and provides that the greater the suspect's level of culpability, the more likely it is that a prosecution is required. It goes on to say that culpability is likely to be determined by six factors, namely: (i) the suspect's level of involvement; (ii) the extent to which the offending was premeditated and/or planned; (iii) the extent to which the suspect has benefited from criminal conduct; (iv) whether the suspect has previous criminal convictions and/or out of court disposals and any offending whilst on bail or while subject to a court order; (v) whether the offending was or is likely to be continued, repeated or escalated; and (vi) the suspect's age and maturity (which is specifically addressed in paragraph 4.14(d)).
Paragraph 4.14(c) addresses the circumstances of the victim and the harm caused to the victim. Prosecutors should take into account views expressed by the victim or the victim's family about the impact which the offence has had, subject to the proviso that the CPS cannot act for victims or their families and prosecutors must form an overall view of the public interest.
Paragraph 4.14(d) requires the prosecutor to consider the suspect's age and maturity at the time of the offence. It provides that the criminal justice system treats children and young people differently from adults and that “significant weight must be attached to the age of the suspect if they are a child or young person under 18”. It goes on to provide that the best interest and welfare of the child or young person must be considered including “whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending”. Prosecutors are required to have regard to the principal aim of the youth justice system which is to prevent offending by children and young people. Prosecutors are required to consider the suspect's maturity as well as their chronological age. The sub-paragraph provides that “as a starting point the younger the suspect, the less likely it is that a prosecution is required.” This is qualified by guidance that there may be circumstances which mean that notwithstanding that the suspect is under 18 or lacks maturity, a prosecution is in the public interest, and this includes where the offence committed is serious.
Paragraph 4.14(e) requires the prosecutor to consider the impact on the community. The bullet points under this paragraph suggest that what it has in mind are the adverse effects of the offending on the community, including the prevalence of offences.
The Youth Offenders Guidance
The Youth Offenders Guidance sets out that the key considerations governing the decisions made by Crown Prosecutors in dealing with youths are those contained in:
(a) section 44 of the Children and Young Persons Act 1933 which requires the courts to have regard to the welfare of the young person;
(b) section 37 of the Crime and Disorder Act 1998 which requires the principal aim of agencies involved in the youth justice system to be the prevention of offending by young persons; and
(c) the Code, which requires consideration of the interests of a youth amongst other public interest factors when deciding whether the prosecution is needed.
It provides that all major decisions in relation to youth offenders will be taken by a Youth Offender Specialist who must be a senior Crown Prosecutor with adequate experience and appropriate skills. In particular any decision to prosecute must be made by a Youth Offender Specialist.
The Homicide Guidance
The Homicide Guidance provides that “the public interest in prosecuting homicide cases is high as the harm caused will inevitably be of the utmost seriousness. … Subject to sufficiency of evidence a prosecution is almost certainly required, even in cases such as ‘mercy killing’ of a sick relative.”
Procedural history
The initial account given by the children present on 1 July 2019 was that Christopher had slipped or fallen in, not that he had been pushed. This was what two of the children said in the 999 call and what the group said to the police officer attending the scene on the day. Five of the children made statements to the police over the following few days, and all maintained that Christopher had fallen or jumped in. Q's account was that Christopher had lost his balance as he had been leaning over.
Q later told his mother something different, namely that he had accidentally slipped into Christopher, causing his fall. This led to the five children being reinterviewed, and...
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