Torpey, R (On the Application Of) v Director of Public Prosecutions

A prosecutorial review must address the material evidence and apply the correct legal principles. In a causation case involving successive driving incidents, the earlier driving may be causative if it contributed more than negligibly to bringing about the fatal collision; it cannot be dismissed merely because it created the occasion for the later event. The reaction of another road user may be relevant where it was foreseeable. Although courts apply a strict self-denying ordinance when reviewing CPS decisions, that restraint does not protect an irrational failure to consider relevant evidence, a misdirection of law, or inadequate reasons. A detailed review should identify the evidence relied upon and explain material departures from an earlier prosecutorial assessment.

The claimant, the mother of a man who died during a police pursuit, sought judicial review of the DPP’s decision not to prosecute the interested party for causing death by dangerous or careless driving. An initial CPS decision had found sufficient evidence of dangerous driving but declined prosecution in the public interest. On review, the CPS concluded that the evidence did not establish dangerous or careless driving causing death. The claimant challenged the review decision as irrational, inadequately reasoned and legally flawed, including in its treatment of causation, expert evidence, the van driver’s reaction and the officer’s lack of pursuit training. The central issue was whether the review decision lawfully applied the evidential test.

1. The claim succeeded. The court quashed the CPS review decision of 2 October 2018 and remitted the matter to a different lawyer for a fresh review.
2. The court applied the strict self-denying approach required when reviewing prosecutorial decisions, particularly where a Victim’s Right to Review decision is careful, detailed and thorough. However, that restraint does not prevent review for error of law or irrational failure to consider relevant evidence. Following R v Bannister [2009] EWCA Crim 1571, the officer’s training and authorisation were irrelevant to the objective dangerous-driving test under sections 1, 2 and 2A of the Road Traffic Act 1988.
3. Under R v L [2010] EWCA Crim 1249, causation requires the defendant’s driving to contribute, beyond a negligible level, to bringing about the fatality rather than merely creating the occasion for it. Whether that dividing line is crossed is fact-sensitive and one of degree. The reviewing lawyer’s unqualified conclusion that the officer’s earlier driving had no bearing on the collision misdirected itself in law.
4. The review decision failed to analyse the CCTV evidence adequately, failed to address the report and conclusions of PC Chandler, an experienced independent police driving instructor, and failed to explain the departure from the first CPS lawyer’s findings. Those failures were material because the evidence potentially bore on whether the pursuit placed pressure on the moped rider and whether the officer’s earlier driving contributed to the collision.
5. The decision also failed to engage with the van driver’s evidence. The driver’s movement towards the nearside in response to an approaching police vehicle with sirens operating was foreseeable. The court found no principled basis for introducing a requirement that the van driver’s movement had been necessary. The failure to consider that evidence was a further reviewable error of law.
6. The court did not determine whether the public-interest test had been lawfully applied, because the evidential defects were sufficient to dispose of the claim.

Permission to apply for judicial review was granted by Julian Knowles J. The Divisional Court determined the judicial review claim and remitted the matter for reconsideration by a different CPS lawyer.