Oliver, R (on the application of) v Director of Public Prosecution

A prosecutorial decision is for the prosecuting authority, and the court will intervene only on established public-law grounds. The court must nevertheless scrutinise such a decision with appropriate rigour, particularly where the death of a person in state custody engages Article 2 considerations. A decision-maker may focus on the principal failures and factors that are critical to causation or culpability. The decision need not itemise every evidential detail or reproduce an investigative report. In gross negligence manslaughter, the breach must cause death and amount to conduct that is truly exceptionally bad, showing indifference to an obviously serious risk to life. Causation requires a material cause, assessed on the evidence as a whole; scientific or mathematical certainty is unnecessary.

Stephen Berry died after being detained at a police station. The Director of Public Prosecutions decided not to prosecute the custody sergeant, PS Garland, for unlawful act manslaughter based on gross negligence. The decision was reviewed afresh under the Victims’ Right to Review scheme and upheld.

Mr Berry’s mother sought judicial review, alleging that the reviewing prosecutor misunderstood the medical evidence on causation, failed to consider the cumulative nature of the alleged failures, and gave inadequate reasons. The central issues were whether those defects rendered the decision irrational or otherwise unlawful, and whether the court should grant relief under section 31(2A) of the Senior Courts Act 1981.

1. Judicial review of prosecutorial decisions. The decision whether to prosecute belongs to the prosecuting authority, which has considerable expertise. The court will not lightly interfere, particularly with a decision reviewed under the Victims’ Right to Review scheme. However, the death of a person in state custody and the resulting Article 2 considerations required scrutiny with appropriate rigour.
2. Gross negligence manslaughter. The applicable principles were those stated in R v Adomako [1995] 1 AC 171 and further explained in Misra and Srivastava [2005] 1 CAR 21. The prosecution would have to establish a breach of duty causing death and conduct so exceptionally bad, and so indifferent to an obviously serious risk to life, as to amount to the crime. Serious mistakes and errors of judgment did not necessarily meet that threshold.
3. Causation. The negligent conduct need only be a material cause and need not be the sole cause. The evidence had to be assessed as a whole, and scientific or mathematical certainty was not required. The reviewing prosecutor had incorrectly conflated Dr Perry’s evidence that hospital treatment would probably have prevented cardiac arrest with his separate evidence concerning survival if cardiac arrest had occurred in hospital. That was a valid criticism, and the reasoning on causation was mistaken. The error did not invalidate the conclusions on the other elements.
4. Assessment of the evidence and reasons. The prosecutor was entitled to focus on four principal failures regarded as critical to causation and to identify the factors given particular weight on gross negligence. There was no requirement to list every alleged failure or track the detailed IPCC report. The decision letter, read in context, adequately explained the decision and did not show that relevant matters had been ignored.
5. Disposition. The claim was dismissed. The decision was not irrational or unlawful. In any event, the court would have refused relief under section 31(2A) of the Senior Courts Act 1981 because the asserted defects were matters of form rather than substance and there was no exceptional public interest requiring a different conclusion.

First-instance judicial review proceedings. The claim challenging the DPP’s reviewed decision not to prosecute was dismissed.