HAYLEY CANHAM (R on the application of) v THE DIRECTOR OF PUBLIC PROSECUTIONS

Judicial review of a prosecutorial decision is subject to a single, restrained approach whether or not Article 2 of the European Convention on Human Rights is engaged. The court reviews legality, not the merits of whether a prosecution ought to be brought. A prosecutor must assess objectively whether there is a realistic prospect of conviction, including the evidence and likely defences. A decision not to prosecute may be unlawful for example because it follows an unlawful policy, departs from settled prosecutorial policy, or is perverse, but mere disagreement is insufficient. The prosecutor may assess whether a jury is likely to find gross negligence, even though grossness is ultimately a jury question. The application was refused because the decisions not to prosecute the individuals and organisations were lawful and adequately reasoned.

The claimant sought judicial review of the Director of Public Prosecutions’ decision dated 19 October 2020, following a victim’s right of review of an earlier decision, not to prosecute five suspects in connection with Robert Fenlon’s suicide in custody at HMP Woodhill. The proposed prosecutions concerned gross negligence manslaughter charges against two prison officers, a breach of Health and Safety at Work Act 1974, section 7, against a healthcare assistant, and corporate manslaughter charges against the Ministry of Justice and the National Offender Management Service.

The principal issues were whether Article 2 required a different standard of review, whether the evidential decisions were legally flawed, and whether relevant matters including the ACCT system, staffing, management failings and causation had been properly considered.

1. Article 2. The court adopted the established approach to reviewing prosecutorial decisions, whether or not Article 2 was engaged and whether or not the death formed part of a sequence of deaths in custody. Article 2 does not confer a right to have third parties prosecuted. Its investigative requirements do not require this court to decide whether a prosecution should occur. The court’s task was to review whether the prosecutor’s conclusion that criminal proceedings were not justified was lawful: paras [46]-[51].
2. Prosecutorial review. The decision-maker was entitled to assess the evidence as it would arise at trial, including likely defences, and to decide whether a properly directed jury was more likely than not to convict. Intervention is exceptional. Mere disagreement with the merits is insufficient: paras [33]-[40], [98].
3. Gross negligence manslaughter. The prosecutor correctly treated grossness as the fifth element of the offence and was entitled to assess whether the alleged breaches were likely to be found truly exceptionally bad by a jury. Grossness remained a jury question, but that did not prevent the prosecutor from applying the Full Code Test. On a fair reading, the prosecutor considered the officers’ breaches both individually and cumulatively. The reasons were adequate and the conclusion that the high threshold was not met was open to him: paras [52]-[70].
4. Section 7 of the HSWA 1974. The prosecutor was entitled to consider whether the healthcare assistant had taken reasonable care in the context of the employer’s provision and support, including staffing and mental-health resources. Although fuller reasons should have appeared earlier, the reasons in the decision, review note and pre-action response were sufficient. The conclusion that a prosecution was unlikely to succeed was lawful: paras [71]-[80].
5. Corporate manslaughter. The prosecutor was entitled to conclude that the Ministry of Justice and NOMS had established a clear ACCT system, that the principal failings concerned implementation by individuals, and that causation and gross breach by senior management were not shown. Staffing, lack of continuity and post-dating reports were considered appropriately. The suggestion that someone must bear criminal responsibility was rejected. The application for judicial review was refused: paras [81]-[99].