Dennis, R (on the application of) v DPP

The claimant sought judicial review of the Crown Prosecution Service's decision not to prosecute for gross negligence manslaughter arising from the death of his son. The court applied the two-stage CPS Code approach and the criminal test for gross negligence manslaughter as stated in R v Adomako. The court found that the CPS had failed to take into account relevant material, including an HSE assessment and other documents, and had not adequately addressed the significance of the inquest jury's verdict of unlawful killing.

Because of those failures the decision not to prosecute was quashed to the extent that the CPS was directed to reconsider the matter. The court emphasised the high threshold for intervention in prosecutorial decisions but concluded the identified omissions made it seriously arguable that a different decision might follow proper consideration.

The claimant applied for judicial review of the Crown Prosecution Service Gwent Area's decision, contained in a letter of 17 March 2006, not to bring manslaughter charges after a 17-year-old employee fell through a roof light and died. The death arose from work by subcontractors on a retail park; the HSE had criminal investigations underway and an inquest jury returned a unanimous verdict of unlawful killing.

Nature of the claim: An application for judicial review seeking quashing of the CPS decision not to prosecute individuals (in particular Roy Clarke) for gross negligence manslaughter and an order requiring reconsideration.

Parties and posture: The claimant was the deceased's father. The CPS had earlier decided there was insufficient evidence to satisfy the evidential stage of the Code for Crown Prosecutors. Permission for judicial review was granted and the matter was heard in the Administrative Court.

Issues framed by the court:

• Whether the CPS decision complied with the Code for Crown Prosecutors (evidential stage) and applicable legal principles (including the test in R v Adomako).
• Whether the CPS had failed to consider material evidence and give adequate reasons, particularly in light of the inquest jury's unlawful killing verdict.
• Whether any failure amounted to a decision so perverse that no reasonable prosecutor could have reached it.

Court's reasoning and disposition: The court reviewed the CPS's stated five factors underlying its decision and the additional material which the CPS had not properly considered, notably an HSE investigatory assessment describing repeated instructions to the deceased to work on roofs without training and the extreme risk posed by skylights. The court concluded the CPS had not dealt with the core thrust of the potential case against Clarke, had placed undue emphasis on the claimant's actions at the immediate moment before the fall rather than on prior instructions and failure to train, and had not given clear reasons addressing why the inquest jury's verdict did not lead to prosecution. While acknowledging the high hurdle for interfering with prosecutorial discretion, the court concluded these failures made it seriously arguable that a different outcome might follow and ordered the matter remitted to the CPS for reconsideration.

The court noted the remedy of ordering reconsideration is exceptional and emphasised that it was not directing a prosecution, merely requiring proper reconsideration by the prosecuting authority.

The court allowed the application in part: it quashed the CPS decision to the extent that it required the Crown Prosecution Service to reconsider whether to prosecute. The court concluded the CPS had failed to take relevant material into account and had not provided adequate reasons, so reconsideration was necessary though the ultimate decision as to prosecution remains for the CPS.