Dennis, R (on the application of) v DPP

A prosecutor’s decision not to prosecute may be quashed where an objective appraisal shows that serious points supporting prosecution were not considered, or that an important evidential conclusion was irrational. The points must be sufficiently significant to make it seriously arguable that the decision might otherwise have been different. The merits remain for the prosecuting authority, not the reviewing court. Where an inquest jury has returned a verdict of unlawful killing, the reasons for declining prosecution should be clearly expressed.

The claimant sought judicial review of the CPS decision not to prosecute individuals for gross negligence manslaughter following the death of his 17-year-old son in an industrial accident. An inquest jury had returned a unanimous verdict of unlawful killing. The CPS accepted that certain individuals owed and had breached duties of care, but concluded that the negligence was insufficiently serious for criminal liability. The challenge focused on whether the CPS had properly applied the evidential test in the Code for Crown Prosecutors, considered relevant evidence and adequately addressed the inquest verdict.

1. The application was allowed to the extent that the decision not to prosecute Roy Clarke was referred back to the CPS for reconsideration. The court did not require a prosecution and expressed no view on the outcome of reconsideration.
2. The evidential stage under the Code for Crown Prosecutors required the prosecutor to consider whether there was enough evidence to provide a realistic prospect of conviction. Judicial review remained subject to a high threshold because the decision was entrusted to the prosecutor.
3. Following R v DPP ex parte C [1995] 1 Cr App R 136, failure to comply with the Code could justify intervention. The court could also intervene where the prosecutor misunderstood the law, failed to address a material matter, or reached an irrational evidential conclusion.
4. The court formulated four linked principles. A serious point supporting prosecution which had not been considered could require reconsideration. An irrational conclusion on a significant evidential issue could do likewise. The point had to make it seriously arguable that the decision might otherwise have been different. The decision itself remained one for the prosecutor.
5. The CPS had focused too narrowly on the events immediately preceding the accident. It had failed adequately to address evidence that Mr Clarke had instructed the deceased to work on the roof without proper training or induction, including instruction about roof lights. It had also failed to take account of material in the HSE file concerning the seriousness of the risks.
6. The inquest verdict was not determinative, but the CPS had not given clear reasons explaining why a prosecution should not follow it. That omission reinforced the need for reconsideration.

Permission to apply for judicial review was granted by a deputy High Court judge on 21 August 2006. The Administrative Court reconsidered the CPS decision and ordered reconsideration in relation to Roy Clarke. The claimant did not pursue the challenge concerning the corporate defendants.