Hillary Smith, R (on the application of) v Director of Public Prosecutions

The Full Code Test asks whether a properly directed criminal court is objectively more likely than not to convict. The prosecutor must nevertheless predict a conviction applying the criminal standard of proof. Judicial review of a prosecutorial decision uses the single standard of public law reasonableness, with substantial latitude for specialist evaluative and predictive judgments. Context may require fuller reasons and closer scrutiny without changing that latitude. A decision may be unlawful where its reasons fail to address material evidence or do not justify the conclusion reached. However, a prosecutor’s evaluative judgment on whether negligence was truly exceptionally bad will ordinarily be respected where the other elements of the offence are assumed to be provable.

The claimant, the mother of Gavin Brown, challenged the CPS decision not to prosecute an SIA-licensed door supervisor for gross negligence manslaughter. Mr Brown suffered fatal brain damage after being held in a neck restraint for more than six minutes. An inquest jury returned a conclusion of unlawful killing, understood to include gross negligence manslaughter by the door supervisor.

The challenge concerned the CPS assessment of reasonable foreseeability, causation and whether the alleged negligence was truly exceptionally bad. The central questions were whether the prosecutor had misunderstood the evidential stage of the Full Code Test, acted unlawfully or unreasonably in evaluating the evidence, or failed to provide adequate reasons.

1. Full Code Test. The Evidential Stage requires an objective assessment of whether a properly directed criminal court is more likely than not to convict. The predicted conviction must be one reached by applying the criminal standard. The prosecutor does not apply the balance of probabilities as the standard by which the criminal jury would convict.
2. Judicial review. Reasonableness is the single applicable standard of substantive review. The CPS remains the primary decision-maker, with substantial latitude in evaluative and predictive judgments. A case involving death and an unlawful-killing inquest may require fuller reasons and more careful scrutiny, but does not narrow the decision-maker’s lawful latitude.
3. Reasonable foreseeability. The CPS decision was inadequately reasoned. The decision-maker relied on the possibility that the door supervisor would only have discovered the risk by conducting a welfare check, but failed to identify what would have been discovered. The decision also recorded evidence that the door supervisor knew Customer 1 was restraining Mr Brown by the neck. The adverse conclusion therefore was not justified by the reasons given and would have been remitted if it had been determinative.
4. Causation. The causation assessment was lawful. Read fairly and as a whole, the decision-maker had concluded that the prosecution could not prove that Mr Brown remained conscious until the other doorman was extricated. The possibility that fatal injury occurred during the initial restraint was a realistic evidential possibility which the prosecution might be unable to exclude.
5. Grossness. The assessment that a jury was unlikely to be sure that the negligence was truly exceptionally bad was an evaluative judgment within the prosecutor’s latitude. It was permissible to consider the context, including the perceived need to restrain a person who had attacked a colleague, even though the alleged breach occurred after the colleague’s extrication.
6. The claim for judicial review was dismissed because the Evidential Stage was lawfully found not to be met for causation and, independently, for gross negligence. The claimant was ordered to pay the defendant’s standard-basis costs, subject to the stated legal-aid restriction.