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

The Divisional Court considered a challenge under judicial review to the Director of Public Prosecutions' decision not to prosecute any individual police officer for murder or gross negligence manslaughter in the death of Jean Charles de Menezes. The court applied the established two-stage CPS Code evidential test (the "realistic prospect of conviction" test) derived from the Prosecution of Offences Act 1985 and authorities such as R v DPP ex p Manning, and concluded that the Director and the reviewing prosecutor had acted in accordance with the Code.

The court rejected the submission that Article 2 of the European Convention on Human Rights required a different evidential test or a more invasive form of judicial review; Article 2 requires careful scrutiny of state conduct but does not permit the court to substitute its own merits assessment for the prosecutorial judgment entrusted to the Director. The decision was upheld on the basis that it was reasonable and taken after a thorough review by experienced prosecutors and counsel.

On disclosure, the court held that the claimant did not need to see the underlying witness evidence to challenge lawfulness and that disclosure was refused because it was unnecessary for the review and risked prejudicing a separate Health and Safety at Work etc. Act 1974 prosecution; limited redacted material and reporting restrictions were in place.

The claimant, a cousin of Jean Charles de Menezes, sought judicial review of the Director of Public Prosecutions' decision not to prosecute individual police officers for murder or gross negligence manslaughter following the IPCC investigation into the shooting at Stockwell Underground Station on 22 July 2005. The IPCC report, a CPS review note and correspondence setting out reasons for the decision were in issue; the claimant also sought disclosure of the underlying witness evidence.

Matters before the court included (i) whether the Director's decision complied with the CPS Code for Crown Prosecutors, in particular the evidential stage requiring a "realistic prospect of conviction" (Prosecution of Offences Act 1985 framework), (ii) whether Article 2 ECHR imposed a different evidential or review standard, and (iii) whether non‑disclosure of the underlying evidence was lawful in the circumstances and compatible with Article 2 investigative obligations.

The court reviewed the established principles: decisions not to prosecute are amenable to judicial review but the review is limited and deferential, as explained in Manning. The claimant argued for a Galbraith-style lower threshold and a more intensive review based on Article 2 jurisprudence (notably Öneryildiz v Turkey and Bekos and Koutropoulos v Greece). The court held that Article 2 imposes strong procedural obligations to investigate deaths involving state agents but does not prescribe a different evidential test or permit the court to usurp the Director's role as primary decision-maker.

The court found that the review in this case was carried out by a senior experienced Crown prosecutor, was reviewed by the Director and leading counsel, and was detailed and careful. Applying the Code's evidential test and the Manning standard of judicial review (careful/anxious scrutiny but not merits substitution), the court concluded the Director's decision was lawful and reasonably open on the material before him. Disclosure of the underlying evidence was not required for the judicial review: the redacted IPCC report and review note provided sufficient material for the court to assess lawfulness, and disclosure posed a risk of prejudice to a separate prosecution under section 3 of the Health and Safety at Work etc. Act 1974. The court therefore dismissed the claim and made protective reporting restrictions under the Contempt of Court Act 1981 pending the Health and Safety prosecution.

The claim is dismissed. The court held that the Director's decision not to prosecute individual officers was lawful: it was taken in accordance with the CPS Code's evidential test (the "realistic prospect of conviction" standard), after a careful and thorough review by experienced prosecutors and counsel, and was a decision reasonably open on the material. Article 2 ECHR did not require a different evidential test or permit the court to substitute its own merits assessment. Disclosure of the underlying evidence was unnecessary for the judicial review and posed a risk of prejudice to a separate prosecution, so it was refused.