Armani Da Silva, R (on the application of) v Director of Public Prosecutions & Anor Rev 1

A decision not to prosecute is lawful if it complies with the Code for Crown Prosecutors and falls within the range of decisions reasonably open to the prosecutor. Article 2 does not require a different evidential test or a merits review by the court. The prosecutor must assess whether there is enough evidence to give a realistic prospect of conviction. Article 2 requires effective investigation and accountability where prosecution is justified, but it does not create an absolute obligation to prosecute in every case.

Jean Charles de Menezes was shot and killed by Metropolitan Police officers who mistakenly believed him to be a suicide bomber. Following an investigation by the Independent Police Complaints Commission, the Director of Public Prosecutions decided not to prosecute individual officers for murder, manslaughter or other offences, while prosecuting the office of the Commissioner of the Police for the Metropolis under section 3 of the Health and Safety at Work etc. Act 1974.

A cousin of the deceased sought judicial review of the decision not to prosecute and sought disclosure of the evidence underlying the investigation report. The central issues were whether Article 2 required individual prosecution, a lower evidential threshold or more intensive merits review, and whether disclosure was necessary.

1. The claim was dismissed. The Director’s decision was lawful and disclosure of the underlying evidence was unnecessary.
2. The approach in R v Director of Public Prosecutions, ex p Manning [2001] 1 QB 330 remained applicable. The decision was lawful if taken in accordance with the Code for Crown Prosecutors and reasonably open on the material before the Director. Judicial review required careful or anxious scrutiny, but not an independent decision on whether a prosecution should be brought.
3. The evidential test remained objective: a properly directed jury had to be more likely than not to convict. The court rejected the proposed lower threshold based on R v Galbraith [1981] 1 WLR 1039.
4. Article 2 required an effective investigation capable of leading to identification and punishment where justified. It did not require prosecution in every case, a particular evidential test or prosecution where the evidence did not justify it. Öneryildiz v Turkey (2005) 41 EHRR 20 and Bekos and Koutropoulos v Greece concerned effective investigation and accountability, not the prosecutorial threshold.
5. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 was distinguishable because it concerned proportionality. R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686 did not require departure from Manning. The decision-making process was careful, thorough and directed to the correct test.

First-instance judicial review proceedings in the High Court (Administrative Court). Permission was granted at the outset of the hearing and the substantive claim was then determined. No earlier judgment in the same proceedings is identified.