R (B) v DPP

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Toulson,Mr Justice Forbes
Judgment Date27 January 2009
Neutral Citation[2009] EWHC 106 (Admin)
Docket NumberCase No: CO/7895/2007
Date27 January 2009

[2009] EWHC 106 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Before:

Lord Justice Toulson and

Mr Justice Forbes

Case No: CO/7895/2007

Between
The Queen on the Application of B
Claimant
and
Director of Public Prosecutions
Defendant
and
Equality and Human Rights Commission
Intervener

Paul Bowen and Alison Macdonald (instructed by Bindmans LLP) for the Claimant

David Perry QC and Clair Dobbin (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 19–21 November 20008

Lord Justice Toulson
1

The claimant, FB, applies for judicial review of a decision by the Crown Prosecution Service (CPS), for which the defendant is responsible, to discontinue a prosecution brought against the interested party, HR. The accusation against HR was that he bit off part of FB's left ear during an incident on Boxing Day 2005 and threatened reprisals against FB and his family if he went to the police. HR was charged with wounding with intent to cause grievous bodily harm and witness intimidation.

2

FB has a history of mental illness. The prosecution was discontinued on the advice of counsel, AW, who formed the opinion that he could not put FB before the jury as a reliable witness in the light of a medical report by Dr. C, a consultant psychiatrist. The result was that no evidence was offered against HR and he was acquitted on both counts.

3

It is submitted on FB's behalf that the decision to discontinue the prosecution was unlawful on three grounds. First, applying domestic public law principles, the decision was premature and irrational. Secondly, in reaching its decision to offer no evidence the CPS failed to have due regard to the need to promote equality of opportunity between disabled persons and other persons, contrary to its duty under Section 49 A (1) (c) of the Disability Discrimination Act 1995, as amended (the DDA). Thirdly, the decision was in violation of FB's rights under the Human Rights Convention, Article 3 (or, as a fall-back, Articles 8 and/or 14).

4

The Equality and Human Rights Commission was given leave to intervene by way of written submissions.

5

Before turning to the legal issues it is necessary to set out the facts in some detail. Readers who are more interested in a summary of the facts than a detailed account are advised to jump to para 40.

Facts

6

FB was born on 20 November 1983 in Bangladesh. He came to England at the age of 16. There was a history of contact with psychiatric services from 2004. His understanding of English is limited. At the time of the incident giving rise to the prosecution he was living at home with his parents and sister.

7

He set out his version of events in a witness statement made on 4 January 2006 through an interpreter. He said that the incident took place between 8.30 and 9 p.m. at premises at 363 Hornsey Road known as Khan Coffee. He had been there on the previous day for a party to which the HR had invited him. On the day of the incident he was picked up by HR by car. Present at the coffee shop were five other people, whom he named and in some cases described. After he had been there for a short time people started to smoke cannabis and play cards. HR asked him for £10 to buy some food. FB replied that he only had on him £1.20, which his mother had given him for his bus-fare home. At that point he decided to go and stood up to leave. HR asked why he wanted to go when HR had just brought him. FB said that he did not like the cannabis smoking. An argument developed which led to violence. According to FB, when he tried to open the door HR put his arm round FB's neck from behind and pulled him back. One of the other men, S, brandished a knife. Others tried to pull HR and S away from him. While this was going on he felt HR bite his ear. He could also see from the corner of his eye that HR's head was very close to his left shoulder. FB put his hand to his ear and saw that his hand was full of blood. Two of the others, who had not been involved in the attack on him, took him to hospital. HR also went with them. Before they left he saw HR take from his mouth the piece of FB's ear which had been bitten off but then put it back in his mouth. On the way to hospital HR threatened violence to FB's family and himself if he were to report the matter to the police. The others joined in telling him to keep his mouth shut. At the hospital two police officers were called. FB initially told them untruthfully that he had lost his ear in an incident on Camden High Street, because one of the others was still present with him and he was scared about the threats which had been made. Later the police returned to say that there was no such incident recorded on CCTV. By this time FB was on his own and he then told the police the truth about how the incident happened. He subsequently identified HR as his attacker at an identification parade.

8

HR was arrested and interviewed by the police on 11 January 2006. He agreed that there had been an incident at the premises identified by FB on the evening of Boxing Day. He agreed that there were seven people present and he agreed about the identity of six of them. He said that FB had not been brought there by HR but had come of his own accord. FB had become involved in a fight with two other men (not himself) as a result of a silly quarrel in the course of a card game, and HR had tried to calm things down. However, at that stage FB had gone to the kitchen and returned with a knife. One of the others disarmed him, but FB then jumped on that person's back and grabbed again for the knife. The knife was again removed from him and HR told him to leave. He opened the door and pushed FB out of the property. Two minutes later FB returned to say that somebody had bitten off his ear. Up to that time nobody had realised that he had lost an ear. When asked further questions about this, HR made it clear that he was not suggesting that FB's ear might have been bitten off by a passer by. It must have happened inside the property, but HR had not noticed it and had no idea how it happened. He denied threatening FB.

9

HR was charged and committed for trial at Snaresbrook Crown Court.

10

FB reported to the police that he subsequently received threats from three of HR's associates. This led to separate proceedings being brought against those defendants, who were committed for trial at Wood Green Crown Court. Those defendants and HR were all represented by the same firm of solicitors, but the Wood Green prosecution and the Snaresbrook prosecution were handled by different branches of the CPS.

11

On 14 August 2006 the defending solicitors procured the issue of a witness summons in the Snaresbrook proceedings requiring someone from FB's doctor's surgery to attend and produce all medical records relating to FB. On receipt of the summons the practice disclosed the records to the solicitors without FB's consent.

12

The solicitors also obtained copies of FB's hospital records, although it is not entirely clear how this happened. On 15 February 2007 FB's solicitors, Bindmans LLP (“Bindmans”), issued proceedings for judicial review aimed at obtaining the return of FB's medical records held by the defending solicitors. Leave was given and a consent order was made requiring the defending solicitors to deliver up all copies of FB's medical records to Bindmans. There followed applications in both sets of proceedings by the defending solicitors for disclosure of the documents.

13

On 20 March 2007, at Snaresbrook Crown Court, HHJ Kennedy refused to order disclosure of FB's medical records.

14

On 4 April 2007, at Wood Green Crown Court, HHJ Lyons dealt with a similar application. He indicated that he did not consider that disclosure of the documents was appropriate at that stage, but he suggested that a letter should be written to Dr C listing a series of questions based on “the test adumbrated” in Toohey v Metropolitan Police Commissioner [1965] AC 595 and R v MacKenney [2003] EWCA Crim 3643. If the parties could not reach agreement on the drafting of the letter, they were to return to court. A note of the hearing prepared by the judge's clerk and distributed to the parties explained the purpose of the letter as follows:

“Once the letter had been agreed the CPS would seek Dr C's further opinion. Based upon the reply to that letter the CPS would then consider whether or not they would continue with the trial. The issue would be the rationality of the complainer witness.”

15

Dr C was named because he had been involved in FB's treatment. He had also written a short letter stating that FB would be distressed by the release of a significant amount of personal information contained in his mental health records and that this was likely to have a harmful effect on his mental health.

16

In Toohey the trial judge had refused to allow the defendant to adduce evidence from a doctor that the key prosecution witness was suffering from such a form of mental disease that the doctor would regard his evidence as unreliable. The issue in the case was whether the defendants had assaulted the complainant. Their case was that there had been no such assault and that the complainant's account was “the figment of an hysterical imagination”. It was held by the House of Lords that the evidence should have been admitted. Lord Pearce said at 608:

“Human evidence shares the frailties of those who give it. It is subject to many cross currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross examination and common sense,...

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