The Queen (on the application of Ann Torpey) v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Mrs Justice Farbey |
| Judgment Date | 10 July 2019 |
| Neutral Citation | [2019] EWHC 1804 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5214/2018 |
| Date | 10 July 2019 |
and
[2019] EWHC 1804 (Admin)
Lady Justice Nicola Davies DBE
Mrs Justice Farbey DBE
Case No: CO/5214/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Iain Daniels (instructed by Tuckers) for the Claimant
Louis Mably QC (instructed by Crown Prosecution Service) for the Defendant
Edmund Gritt (instructed by Reynolds Dawson) for the Interested Party
Hearing date: 12 June 2019
Approved Judgment
Lady Justice Nicola Davies and
This is the judgment of the court to which we have each contributed.
The claimant is the mother of Lewis Johnson who died on 9 February 2016 as a result of a road traffic accident while being pursued by officers of the Metropolitan Police Service (“MPS”). An application for judicial review is brought to challenge a decision of 2 October 2018 by a reviewing lawyer at the Crown Prosecution Service (“CPS”) on behalf of the Director of Public Prosecutions (“DPP”). The reviewing lawyer decided that the interested party who is a MPS police officer (“the Officer”) should not be prosecuted for the offences of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988 (as amended by the 1991 Act) (“the Act”) and/or causing death by careless or inconsiderate driving (section 2B). Permission to apply for judicial review was granted by Julian Knowles J. No permission was given to challenge a CPS decision not to prosecute the same Officer for an offence of misconduct in public office or another officer in relation to other offences. The application for permission on those refused grounds has not been renewed.
The essence of the written claim is that:
a) The decision not to prosecute the Officer for causing death by dangerous driving or death by careless driving was irrational;
b) There was sufficient evidence that the Officer was driving dangerously at the time of the collision (and before) particularly taking account of the fact that the reviewing lawyer initially found that the manner of the Officer's driving was one of the causes of the accident. The decision failed to consider relevant evidence. The findings on the evidence it did consider are irrational;
c) Where the Officer had wilfully involved himself in a pursuit when he was neither qualified nor authorised to do so, the CPS Guidance on the public interest test in relation to whether police officers should be prosecuted for driving offences in emergency situations had been unlawfully applied.
The accident
On 9 February 2016 Mr Johnson was the rider of a white moped registration number 2557GKZ in the Hackney area of London. His friend, LK, was a pillion passenger. The moped was suspected of involvement in a number of thefts of mobile phones in the area, including one that morning in St Peter's Street, Islington. The MPS put out a call on the radio airwaves. Using CCTV cameras the moped was followed by their control room. The Officer was the driver of a marked police BMW car; another officer was his passenger. When the Officer heard the radio call he requested that the control room assign him to the incident. He was a Level 1 advanced driver without Tactical Pursuit and Containment training (“TPAC”). The MPS policy at the relevant time was that a police driver could not engage in the pursuit of a motorcycle or moped unless they were TPAC trained. The Officer turned on the blue lights and sirens on the BMW and went in search of the moped.
At 11:47:31 the Officer commenced pursuit of the moped. A second police vehicle, a Ford Focus, later joined the chase. The fatal collision occurred on Clapton Common near the junction with Castlewood Road. The moped was undertaking a white box van on the nearside immediately before the junction. As the police BMW approached the white box van on the offside, the driver of the van moved to the nearside and collided with the moped which then clipped the curb, destabilising the rider and passenger. Both were thrown from the moped and collided with the traffic light pole. Ambulances attended. Mr Johnson went into cardiac arrest and was pronounced dead at the scene. LK suffered serious injuries.
Investigation of the incident
Mr Johnson's death was investigated by the Independent Police Complaints Commission (“IPCC”) who produced a detailed report dated 24 May 2017. It was based upon statements taken from the police officers in both vehicles and the control room, interviews with the officers, statements from eye witnesses including the van driver, and CCTV footage of the pursuit and the accident. Prepared for the investigation were reports from PC Byron Chandler, the senior instructor with Gloucestershire Constabulary's Driver Training Unit, and PC Hewitt, a senior forensic collision investigator.
The report of PC Chandler
PC Chandler analysed the driving of the moped and the police vehicle as shown in the CCTV footage. His analysis includes the following:
“…it is clearly a pursuit in Dalston Lane as the moped turns into Amhurst Road. At this point, the rider cuts the junction and the Pillion clearly looks back at the following Police car which has its Blue lights illuminated. That would be a clear indication to a Subject that the police were requesting them to stop, especially evident as they remain behind them. From this point on Initial Phase Pursuit is instigated. … From the several camera views on Amhurst Road, the driving of the police vehicle is in no way outside of any exemptions but I would not expect a pursuing vehicle of such a vulnerable moped to be as close as PC Summerson chose to be.
In being close, it not only puts pressure on the moped driver but it reduces the time to react from the Police driver, should the moped take evasive turn or even fall off. As the pursuit turns out of Amhurst Road into Stoke Newington Road, the patrol car can clearly be seen close to the moped, indeed they both pull out from the minor to major road with little view and a small white van can be seen having to break. The moped then enters a bus lane and has to come past a white van which is unloading within it. A Blue car also narrows the route for the moped at this point and the moped takes to the pavement, in full view of the Police vehicle. The Police vehicle is close behind the blue vehicle at this point and it could be viewed as a ‘Quartering’ maneuver (sic). This is where the police car influences the direction of a pursued driver by use of a dominant road position. This is a Tactical Phase Maneuver (sic) only. The moped takes to the pavement momentarily here and risk would be deemed high at that point but no Dynamic Risk Assessment (DRA) change is relayed to the Control room operator. This is where both patrol cars are clearly seen together in Pursuit. As the moped returns to the carriageway the BMW is still very close behind. This can be as a result of ‘Red mist’ from a police driver and that is something that in Pursuits can also be known as ‘Target Focus’. In effect the driver in intent on keeping the Subject in sight and not let them get away. This can then lead to something known as ‘mirroring’ where the Police driver copies every road position and maneuver (sic) that the Subject does. This type of behaviour is suggesting that decision making by the police driver may be affected.
The pursuit continues up into Stoke Newington High Street and Stamford Hill in the same manner until it reaches the junction with Clapton Common. At this point the Moped takes a line to the right of the central reservation and is going down the offside of a dual carriageway against oncoming traffic towards a major junction. In pursuit training scenarios this would be given to highlight immediate risk, it should be an abort of the pursuit and advice is for the Police vehicles to stay on the correct side of the road with minimal blue lights so as not to attract attention from road users who may be in the path of the subject vehicle. There is a motorcycle riding towards the pursuit at this point and also a van and a car which can be seen in the ‘Box junction’ having to stop. The turn itself is a pedestrian controlled traffic light junction and there are several pedestrians here. The blue vehicle referred to by PC
Summerson in his statement holds them up and the moped goes through. No time would have been lost here if the patrol car took the legitimate route through this busy junction and that is what I believe would have been the correct decision. This action by the Police driver would be typical of ‘Mirroring’ as I mentioned previously.
The camera footage of the actual collision shows to me that the moped at this point made a wrong decision to take to the nearside of traffic, especially the white van as the driver of that vehicle reacts to the Police car which is overtaking on the natural and legitimate side of the van. As the van pulls into the nearside, the moped appears to clip the curb and the catastrophic dismount was the result. The actual crash was down to driver error in my view at that point …”
PC Chandler concludes that the “correct course of action that day would have been to monitor the progress of the moped on CCTV as it was being controlled remotely by staff and to have deployed TPAC drivers to the incident. Those who did engage in the pursuit should have had sufficient knowledge and understanding of Pursuit policy to abort.”
The report of PC Hewitt
PC Hewitt records that he was not asked to comment on the driving of the police officers with regard to policy or training. In his report he offers no comment nor any analysis of the driving of the Officer. It is notable that in his “Conclusions” PC Hewitt comments upon the actions of Mr Johnson...
To continue reading
Request your trial
-
McQuillan, Re Application for Judicial Review
...grounds of irrationality are: R (Purvis) v Director of Public Prosecutions [2018] EWHC 1844 (Admin); [2018] 4 WLR 118; R (Torpey) v Director of Public Prosecutions [2019] EWHC 1804 (Admin); and R (L) v Director of Public Prosecutions [2020] EWHC 1815 (Admin). A decision to end an invest......
-
Ronald John Bullock v Director of Public Prosecutions
...identified in R (F) v DPP [2014] QB 581 is one example; another, more recent one, is to be found in the case of R (Torpey) v DPP [2019] EWHC 1804 (Admin) where the court found that statements made by the CPS lawyer in his decision were “not easily identifiable in the evidence” and that th......
-
R L v The Director of Public Prosecutions
...he referred to the recent judgment of this court (Nicola Davies LJ and Farbey J) in R (Torpey) v Director of Public Prosecutions [2019] EWHC 1804 (Admin) in which (as the decision maker himself said in his letter) “criticism was made of the CPS for failing to give adequate reasons for an a......
-
Police Constable GA v Director of Public Prosecutions and Ors
...applying prosecutorial experience and expert judgment.” 23. In R (on the application of Ann Torpey) v Director of Public Prosecutions[2019] EWHC 1804 (Admin), the Court again addressed the proper approach to be taken in relation to a decision of the prosecutor relating to how the evidence w......