The Queen (on the application of David Johnson) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 19 February 2019 |
| Neutral Citation | [2019] EWHC 317 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3775/2018 |
| Date | 19 February 2019 |
[2019] EWHC 317 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT MANCHESTER CIVIL JUSTICE CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Yip DBE
Case No: CO/3775/2018
and
Mr Vikram Sachdeva QC & Mr Tim Godfrey (instructed by Irwin Mitchell LLP) for the Claimant
Mr John McGuinness QC (instructed by Crown Prosecution Service) for the Defendant
The Interested Party was not represented
Hearing dates: Tuesday 12 th February 2019
Heard at Manchester Civil Justice Centre, 1 Bridge Street West, Manchester, M60 9DJ
Approved Judgment
The Claimant is the widower of Mrs Lauren Johnson who died on 28 October 2016 having been struck by a car driven by the Interested Party Mr George Steele. The Claimant seeks to challenge the decision of the Crown Prosecution Service not to prosecute Mr Steele for causing death by dangerous driving.
On 9 November 2018, HHJ Pelling QC, sitting as a Deputy High Court Judge, considered the claim on paper. He granted an extension of time but refused permission to claim judicial review. The Claimant renewed his application for permission before me. The Claimant also seeks disclosure of medical evidence relating to Mr Steele. I was invited to, and have, considered those applications together. I should also note that, as is usual practice, I have considered the case afresh.
The accident was an unimaginable tragedy for Lauren Johnson's family. She left behind two very young children. It touched the wider community and concerns about the case have spread well beyond the immediate family. Mr Johnson was supported at court by a large group of people. Everyone concerned conducted themselves with dignity and listened closely to the legal argument throughout.
This claim for judicial review is of the utmost importance to the family. I regard it as significant and sensitive. Although only at the permission stage, I considered it appropriate to allow Mr Sachdeva QC the opportunity to develop the submissions on behalf of the Claimant in far more detail than would normally be the case. Fortunately, my list allowed time for that. I am grateful to Mr Sachdeva QC and Mr Godfrey and their instructing solicitors for the care and attention given to preparing and presenting the case so as to allow for thorough consideration of the issues arising. I am also grateful to Mr McGuinness QC, who appeared for the Defendant, for his concise and well-focused submissions.
Throughout, I have been conscious that although I have heard a significant amount of argument, this remains an application for permission and no more. I have reminded myself that I am not determining substantive arguments at this stage but only considering arguability. That is a relatively low bar, but the permission stage remains important. The court cannot grant permission unless satisfied that the claim is properly arguable on public law grounds. In truth, however strongly the family wish to proceed, it would be no kindness to them to grant permission in relation to a claim that will inevitably fall at the next hurdle some months further on.
The facts
At this stage, I will deal with the factual circumstances only briefly. There is, of course, much evidence. As with most road traffic accidents, not all the evidence is wholly consistent. This is not the forum or the time for a detailed factual analysis.
The accident was both terrible and unusual. The car hit a van at speed in a residential road. It then continued without slowing, through a junction and mounted the pavement hitting Mrs Johnson from behind. Crash data from the vehicle's airbag system showed that the car was travelling at 53.4 to 54.7 mph for 4 seconds prior to the collision. The speed limit was 20 mph. On the face of it then this was a clear piece of dangerous driving which caused the death of Mrs Johnson.
However, there is evidence that Mr Steele was “in a daze” or unresponsive at the time of the accident. A paramedic who attended him shortly after the collision suspected that he had suffered some sort of “neurological deficit”. This gives rise to a potential defence of automatism.
This is an area of criminal law that is not entirely straightforward. I note that in 2013, the Law Commission suggested that “the case law on insane and non-insane automatism is incoherent and produces results that run counter to common-sense.” The Law Commission also commented that the label “insane” in this context is at best outdated and in some instances simply wrong. It may be misleading for the lay person. However, it is agreed that the potential defence in this case falls within the legal definition of “insane automatism” on the basis that the alleged involuntary action arose due to a malfunctioning of the mind owing to an internal cause.
The family of Mrs Johnson were unhappy that there had been no prosecution. In November 2017, they had a meeting with the Assistant Chief Constable of Merseyside Police. Having been informed that Mr Steele was not to be prosecuted, they had a meeting with the CPS in December 2017. Thereafter, they requested a formal review of the charging decision under the Victims' Rights to Review Protocol.
On 22 February 2018, a review upheld the decision not to prosecute. By way of very brief summary, the reviewer concluded that the defence of non-insane automatism was available, which could not be disproved. The reviewer referred to medical evidence from Dr Smith, a consultant neurologist. She concluded that the medical evidence did not establish that Mr Steele was suffering a disease of mind such as would be required to give rise to the defence of insane automatism. This decision has subsequently been superseded and is no longer relied upon. Mr McGuinness QC frankly conceded that the February 2018 decision was not defensible in law.
A further review was conducted by Mr James Boyd, a specialist prosecutor from the Defendant's Appeals and Review Unit. It was this review that gave rise to the decision contained in a letter dated 7 June 2018, which forms the subject of this claim.
Basis of the decision
Mr Boyd's legal analysis of the case differed from that of the previous reviewer. However, the outcome was the same in that he supported the decision not to prosecute Mr Steele.
The Code for Crown Prosecutors sets out the Defendant's policy to be applied when making decisions about prosecutions. The Code in force at the time was that published in 2013. A new Code came into effect in October 2018. Were the decision to be reviewed now, the 2018 Code would apply. Unless expressly stated otherwise, I am referring to the 2013 Code, although it may be that there is little practical difference so far as this case is concerned. There is one relevant point to which I will return shortly.
The Full Code Test has two stages: the evidential stage, followed by the public interest stage.
Mr Boyd concluded that the test at the evidential stage of the test was satisfied but that it was not in the public interest to prosecute where “the most likely outcome is that the jury would return a special verdict of not guilty by reason of insanity.”
Within the reasons for his order, HHJ Pelling QC considered that arguably the analysis in the decision letter was not correct on the basis that a special verdict is not a conviction and therefore the conclusion that the evidential stage was satisfied was questionable. HHJ Pelling QC noted that it was not in the Claimant's interests to contend that this analysis was flawed. If a conclusion that a special verdict was likely meant that the evidential stage was not satisfied, the public interest test would not be engaged. That does not assist the Claimant's case. The judge also noted that the Defendant did not seek to uphold the decision on this alternative basis.
In support of the approach taken by Mr Boyd, Mr McGuinness QC referred to the 2018 Code. The evidential stage requires prosecutors to be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. A footnote in the new code provides that for the purpose of the Code “conviction” includes circumstances where someone is likely to be found not guilty on the grounds of insanity. Although Mr Sachdeva QC objected to consideration of the new Code, the reality is that this is not a material change. The footnote merely clarifies how the policy should be applied. Further, it is on proper consideration an entirely rational approach. As Mr McGuinness QC pointed out the prosecution of someone who had an insanity defence to a murder charge could otherwise not proceed so as to seek the necessary hospital order, since the Code mandates not proceeding if the test at the evidential stage is not met. Such an interpretation plainly makes no sense. Mr Boyd's approach to the two-stage test was therefore correct.
In reality, there was broad agreement between the parties as to the legal framework and both sides agree that Mr Boyd was right to find the test at the evidential stage was satisfied and to move on to the public interest stage. It is his finding that it was not in the public interest to prosecute that is the focus of this claim.
The legal framework
At trial, the burden of proof in relation to the defence of insanity rests on the defence. A defendant must establish the defence on a balance of probabilities. By virtue of s.1 of the Criminal Procedure (Insanity & Unfitness to Plead) Act 1991, the jury cannot return a special verdict of not guilty by reason of insanity except on the written or oral evidence of two or more medical practitioners, at least one of whom is duly registered.
In the circumstances, the CPS had to...
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