Failure to Prosecute Youth for Manslaughter
On 1 July 2019 thirteen-year-old Chistopher Joseph was playing with a large group of friends of similar age in the Red Bridge area over the Cynon River, Mountain Ash, South Wales.
Some of the boys were jumping into the river. Others 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 swimming shorts and prevaricating 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, including Q, but they were unable to assist as he kept pulling them under water in panic. Tragically, Christopher drowned.
The claimant, the mother of Christopher, brought an action for judicial review of the decision of a Specialist Prosecutor, Ms M, 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: Joseph, R (On the Application of) v Director of Public Prosecutions [2022] EWHC (Admin): Popplewell LJ, Dove J
Ms M concluded that there was sufficient evidence to give rise to a realistic prospect of Q being convicted of the offence of unlawful manslaughter, but that the prosecution would not be in the public interest.
Christopher’s family believed this to be a racially motivated hate crime as Christopher was black and all the other children were white. Ms M gave careful consideration to that suggestion and addressed it in detail in her review but concluded that there was no evidence to support it. There was no challenge to that aspect of her decision.
The matter was initially reviewed by D, a Senior Crown Prosecutor in CPS Cymru Wales, who decided that there was sufficient evidence for a charge of unlawful act manslaughter against Q but that it was not in the public interest for such a charge to be brought.
Given the serious nature of the case, his decision was considered and approved by senior area managers, including the Chief Crown Prosecutor for CPS Cymru Wales before being communicated. It was notified to the claimant in a four page letter dated 19 February 2020 which explained the reasoning for the decision.
Ms M reviewed the case after it was referred to the CPS Appeals and Review Unit (the ARU) following a referral under the VRR scheme. She reached the conclusion that D’s decision was correct.
The exercise she carried out and the reasons for her decision were apparent from two contemporaneous documents. The first was an impressively thorough and detailed 143 paragraph Review Note dated June 2020; the second was a 13 page letter dated 20 July 2020 notifying the claimant of the decision which also provided detailed reasoning.
The conclusions of the Review Note said the key factors weighing in favour of a prosecution were: (i) an incident resulting in the death of a child was a most serious offence. When committed by an adult offender it would almost always be in the public interest to prosecute in such a case; (ii) Christopher’s death had had a devastating effect upon his family and friends.
Factors weighing against a prosecution were: (i) the suspect was 14½ at the time of the offence (and significant weight must be attached to this); (ii) there was no evidence that the offence was premeditated or pre-planned. The evidence established that it was a foolish act, carried out in jest, which resulted in Christopher losing his life and tragedy for his family; (iii) the suspect had no previous convictions or cautions; (iv) The Code and the relevant guidance clearly reinforced that the best interests and welfare of the child or young person must be considered. A prosecution and conviction would have a significantly detrimental effect on the suspect’s future prospects. A criminal conviction would have a severe impact on any prospects of education and employment; (v) Prosecutors must have regard to the principal aim of the youth justice system, which was to prevent offending by children and young people. It was highly unlikely, on the information currently available, that this type of offending would be repeated.
Ms M determined that the factors militating against a prosecution outweighed the factors in favour of a prosecution and it was not in the public interest to prosecute Q.
The applicable legal principles could conveniently be taken from the summary contained in the judgment of Lord Burnett of Maldon CJ and Jay J in R (Monica) v Director of Public Prosecutions[1]. The circumstances in which the court would intervene in relation to prosecutorial decisions were rare indeed. The principle of the separation of powers led, as Sir John Thomas, President, put it, to the adoption of a “very strict self-denying ordinance”.[2]
An authoritative statement of the principle, and its application to cases of this type, was given by Lord Bingham of Cornhill in R (Corner House Research) v Director of the Serious Fraud Office [2009][3].
The first ground advanced by the claimant was failure to have regard to and apply the Home Office Guidance, but this was an example of a case where a detailed and thorough review decision was in accordance with CPS policy and could not be considered perverse.
That conclusion was reinforced by the fact that the same prosecutorial decision was reached on the same public interest grounds by three other prosecutors with considerable relevant experience and expertise.
It was argued that undue weight was given to the impact of a prosecution on the future of Q, but this ground disclosed no public law basis for impugning the decision. The impact of a prosecution on Q, a child, was clearly an important factor to be taken into account. The weight to be attached to it in the balancing exercise was a matter for the judgement of the prosecutor.
It was also argued that there was a failure to consider and give effect to the aggravating factors that Q told lies and failed to show remorse. But these were factors expressly taken into account by Ms M and there was no basis for suggesting that the weighting she gave this factor was perverse.
A submission was also made that Ms M wrongly took account of the effect of a prosecution on witnesses, or failure to have proper regard to the mitigation of that effect by the use of special measures. It was, however, inconceivable that someone with Miss M’s experience would not have had in mind that special measures could be employed for such witnesses, that being the norm for vulnerable child witnesses.
There was in her report a realistic recognition that special measures would not avoid the traumatic impact of giving evidence and being cross-examined in a trial likely to attract considerable publicity.
Finally, there were a number of different criticisms of Ms M’s conclusions which informed the public interest factors and each was dismissed by the court. In reality the points were advanced in support of the contention that Ms M had left material factual matters out of account in reaching her evaluative judgments, and/or that the judgements she made were irrational.
The application for judicial review was dismissed.
You can listen to this case summary on the Baines Law Podcast Joseph v Director of Public Prosecutions [2022] EWHC (Admin) which can be accessed on the Podcast Page of this Website at Podcast – Barry Baines
[1] [2019] QB 1019 at [44]-[46]
[2] L v Director of Public Prosecutions [2011] EWHC 1752 at [7]; 177 JP 502
[3] (JUSTICE intervening) [2009] AC 756, 840-841, paras 30-32