Armani Da Silva, R (on the application of) v Director of Public Prosecutions & Anor Rev 1

This is the judgment of the court, to which all members have contributed.

Jean Charles de Menezes was shot dead by officers of the Metropolitan Police Service at Stockwell Underground Station on 22 July 2005. He was an innocent member of the public on his way to work but was tragically mistaken for a suicide bomber. The circumstances of his death were investigated by the Independent Police Complaints Commission (“the IPCC”), which submitted its main report and file of evidence to the Crown Prosecution Service (“the CPS”) on 19 January 2006. Following a review conducted by a senior lawyer within the CPS, it was announced on 17 July 2006 that the Director of Public Prosecutions (“the Director”) had decided not to prosecute any individual officer for murder, manslaughter or any other criminal offence, but to prosecute the office of the Commissioner of the Police for the Metropolis for an offence contrary to section 3 of the Health and Safety at Work etc. Act 1974 (“the 1974 Act”).

The claimant in the present proceedings for judicial review is a cousin of the deceased. The main issue she raises for determination by the court is whether the Director’s decision not to prosecute any individual police officer for murder or gross negligence manslaughter was lawful. A subsidiary issue is whether the Director’s objection to disclosure to her of the underlying evidence on which the IPCC report was based is lawful. Various other issues raised in the claim form have fallen away. They include a challenge to the lawfulness of the decision to bring a prosecution against the office of the Commissioner under the 1974 Act. Permission for that was refused by Collins J and the matter has not been pursued further. They also include a challenge to the decision of the Director to apply to the coroner for an adjournment of the inquest into the death of Mr de Menezes. The coroner’s decision to adjourn is now the subject of separate proceedings and it is acknowledged that arguments as to the adjournment are best considered in those proceedings.

The issues still pursued were listed before us as an application for permission, with the substantive hearing to follow if permission was granted. We granted permission at the outset of the hearing and are therefore dealing now with the substantive claim.

The material before the court includes two confidential documents of central importance to the case: the IPCC report and a CPS review note setting out the reasons for the Director’s decision on prosecution.

As already mentioned, the main IPCC report was submitted to the CPS in January 2006. It is a lengthy document. On 14 March 2006 the IPCC submitted a shorter, supplementary report dealing with the treatment of the deceased’s family by the Metropolitan Police Service in the aftermath of the incident and making operational recommendations arising from issues considered in the main report. It is of no practical importance for the issues that we have had to consider. In addition, on 7 June 2006, the IPCC submitted a short addendum to the previous two reports, recording the results of certain additional enquiries. The main report, supplementary report and addendum are referred to together in this judgment as “the IPCC report”.

Prior to the judicial review proceedings, the solicitor acting for the family of the deceased had been briefed on the broad details of the IPCC report, under a strict undertaking as to confidentiality, but neither she nor the family had been provided with a copy of the report itself. The IPCC’s decision not to disclose the report was based on advice from the CPS. Disclosure of the report was one of the matters originally sought by the claimant in these proceedings. In the event the report has been disclosed in redacted form for the purpose of the proceedings themselves. The redactions have been made to remove references to names and in the interests of national security. Copies of the redacted report have been provided to the claimant’s legal representatives, and the claimant herself has been permitted to read a copy in Portuguese translation, in each case subject to strict confidentiality undertakings.

The Director’s decision on the bringing of prosecutions was set out in a letter dated 17 July 2006 to the claimant’s solicitor from Mr Stephen O’Doherty, the CPS lawyer who carried out the review and took the actual decision. The letter gave reasons for the decision, though not in the detail now before the court. Some further indication or confirmation of the reasoning process was given in subsequent correspondence, notably a letter from Mr O’Doherty dated 24 August 2006 answering a series of questions posed by the claimant’s solicitor. The claim form was necessarily directed towards the reasoning disclosed in those letters.

Again, however, the position has moved on as a result of the bringing of these proceedings. First, Mr O’Doherty has made a witness statement in which he describes in some detail his own position within the CPS and the process by which the relevant decisions were reached. He is a Deputy Director, the lead lawyer on all homicide offences, and one of only 14 people (apart from the Director himself) authorised to take decisions in cases concerning deaths in custody. He states that he conducted the review of the evidence in this case and reached the decisions. His decisions were, however, themselves subject to the review of the Director. He also consulted the Attorney General, although the final decision was taken by Mr O’Doherty as the Crown Prosecutor with conduct of the case. When reaching his decisions, he also took into account the opinion of leading counsel, Clare Montgomery QC, which was based on her consideration of Mr O’Doherty’s first review note and the underlying evidence, together with a copy of the IPCC report. Whilst Mr O’Doherty makes clear in his witness statement that legal professional privilege in relation to the legal advice he received is not waived, it may be noted that in his letter of 17 July 2006 he stated that both the Director and leading counsel agreed with his conclusions.

Mr O’Doherty states that he received the main IPCC report, together with accompanying evidence, on 19 January 2006. There were at that stage seven lever arch files of evidence and a significant amount of unused material. The initial process of reviewing the evidence took place over a two month period. He completed his lengthy first review note on 9 March 2006. But review was a continuing process and he read carefully the evidence received after the date of the first review note. He asked the IPCC to carry out additional enquiries and considered the results of those enquiries. He visited the scene on three separate occasions to ensure that he was thoroughly familiar with the areas being described. He also attended New Scotland Yard, together with the IPCC investigator, to examine documents. Although he read the IPCC report, he was aware that it was not itself evidence and that in certain respects it did not in his view accurately reflect the underlying evidence. His first review note was supplemented by a short final review on 9 July 2006.

The first review note and the final review constitute a single document to which we refer as “the review note”.

Like the IPCC report, the review note has been disclosed in redacted form for the purpose of the proceedings. Mr O’Doherty states that the redactions were to remove references to certain sensitive or irrelevant material, such as the names of suspects and a number of police officers, and certain matters which would reveal current operational police practice. Again, copies of the redacted material have been provided to the claimant’s legal representatives, and the claimant herself has been permitted to read a copy in Portuguese translation, in each case subject to strict confidentiality undertakings.

The disclosures made by the IPCC and the Director do not extend to the evidence underlying the IPCC report and on which the Director’s decision was based.

The claimant’s submissions are now directed primarily towards the review note (coupled with the IPCC report) rather than the letter of 17 July 2006 and supplementary correspondence. It is further submitted that disclosure of the underlying evidence is needed in order to make sense of certain matters and to enable certain questions to be answered.

Leaving aside the redactions, about which no issue has been raised, the Director’s concern about disclosure of the IPCC report, the review note and the underlying evidence relates to the risk of prejudice to the prosecution under the 1974 Act if the detailed facts surrounding the events of 22 July 2005 were to get into the public domain. In short, it is said that this would (i) be likely to result in massive publicity, thereby enabling the defence to argue that there cannot be a fair trial, and (ii) give rise to a risk of the witness evidence in the case being contaminated. That is why disclosure has been kept to the minimum considered necessary for the proper discharge of the court’s functions in the judicial review proceedings and has been made subject to strict conditions.

Those same considerations led the court, on the application of the Director and without opposition from the other parties, to make an order under section 4(2) of the Contempt of Court Act 1981 that any media reporting of any of the contents of the redacted IPCC report or the redacted review note that are not already in the public domain be postponed until after conclusion of the prosecution under the 1974 Act.

In order to facilitate compliance with that order, we have structured our judgment as follows. Our consideration of all the issues of legal principle, and our summary conclusions on the application of the relevant principles to the facts, are set out in the main body of the judgment, to which the reporting restrictions do not apply and which will therefore be publicly available as soon as it is handed down. Our detailed analysis of the reasons for the decision not to prosecute individual officers is contained in a separate appendix, to which the reporting restrictions do apply and which will therefore not be publicly available until the reporting restrictions cease to apply.

Section 10 of the Prosecution of Offences Act 1985 provides that the Director shall issue a Code for Crown Prosecutors giving guidance on the general principles to be applied by them in determining whether proceedings for an offence should be instituted or what charges should be preferred. Section 5 of the Code so issued lays down two stages: the evidential stage and the public interest stage. In relation to the evidential stage, the Code provides:

“5.2

Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.

5.3

A realistic prospect of conviction is an objective test. It means that a jury …, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that criminal courts themselves must apply. A court should only convict if satisfied so as to be sure of a defendant’s guilt.

5.4

When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable ….”

The Code is laid before Parliament as part of the Director’s annual report under section 9 of the 1985 Act. The 1993 report of the Royal Commission on Criminal Justice considered it and proposed no changes to it (see Cmn 2263, chapter 5, para 41). Although the Code has been redrafted from time to time, the evidential test has remained essentially unchanged. The possibility of introducing a different and lower evidential test in cases of death in custody was considered but rejected in the Attorney General’s July 2003 report on “A Review of the Role and Practices of the Crown Prosecution Service in Cases Arising from a Death in Custody”, at paras 8.112-8.125. The report indicates that the adoption of a different approach in certain high profile cases had also been rejected after a recent public consultation on revisions to the Code.

The rationale for adhering to the existing position can be seen from the Attorney General’s report. It is recognised that the decision whether or not to prosecute an individual is an important one which carries consequences for everyone concerned. A decision to prosecute can have a profound effect on the accused; and a decision not to prosecute, especially in circumstances where it is believed or asserted that the decision is or may be erroneous, can affect public confidence in the integrity and competence of the criminal justice system. The approach in the Code is that a prosecution must not go ahead if there is no realistic prospect of conviction, and that it is not the role of the CPS simply to give cases a public airing regardless of the strength of the evidence. Although it has been suggested that the CPS should recognise a category of cases where, because of the public interest in holding a trial in open court, a prosecution should be brought even though there is assessed to be insufficient evidence to provide a realistic prospect of conviction, it would be unfair and incompatible with a consistent application of the principles of justice to adopt a different standard for a particular category of suspect and to subject persons within that category to the burden of a prosecution even where there was not a realistic prospect of conviction.

A further consideration, advanced in the submissions made by Jonathan Crow QC on behalf of the Director, is that a practice of bringing prosecutions against law enforcement officers in circumstances where the evidential test in the Code was not met would lead to an increased number of such prosecutions, a significant proportion of which would necessarily fail because the evidence would be lacking. This in turn would undermine public confidence both in the law enforcement agencies (who would be seen to face an increased rate of prosecution) and in the CPS (which would be seen to achieve a reduced rate of successful prosecutions).

In short, the Code in its present form strikes a balance which does not appear to have been seriously questioned for the generality of cases; and there are good reasons of principle and policy why the striking of a different balance in a limited category of cases has been rejected.

It is well established that a decision not to prosecute is susceptible to judicial review. (Different considerations apply to a decision to bring or consent to a prosecution: see R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326.)

In R v Director of Public Prosecutions, ex p C [1995] 1 Cr App R 136 it was held that the court could be persuaded to intervene only if it were demonstrated that the Director had arrived at the decision not to prosecute (1) because of some unlawful policy, (2) because of a failure to act in accordance with settled policy as set out in the Code, or (3) because the decision was perverse, i.e. one at which no reasonable prosecutor could have arrived.

The leading authority is now R v Director of Public Prosecutions, ex p Manning [2001] 1 QB 330. In that case a person had died in prison custody while under restraint by prison officers. The jury at a coroner’s inquest had returned a verdict of unlawful killing. A specialist senior caseworker in the CPS subsequently took a decision not to prosecute any of the officers of any offence arising out of the death, in particular unlawful act manslaughter, on the basis that he was not satisfied that the available evidence would provide a realistic prospect of conviction. The Divisional Court quashed the decision. Lord Bingham of Cornhill CJ, giving the judgment of the court, described the evidential test in the Code and continued:

“23.

Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R v Director of Public Prosecutions, Ex p C …. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by senior Treasury counsel who will exercise an independent professional judgment. The Director and his officials (and senior Treasury counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.”

That passage not only sets out the approach to be taken by the court, but also lends support to the evidential test in the Code and the rationale for it.

The first two issues considered by the court in Manning concerned the duty to give reasons for a decision and differences between the reasons originally given to the applicant and those set out in the review note subsequently disclosed. The third and final issue was whether the reasons set out in the review note were in accordance with the Code and capable of supporting a decision not to prosecute. The court’s conclusion was expressed as follows:

“41.

We have found this a very difficult issue to resolve. We accord great weight to the judgment of experienced prosecutors on whether a jury is likely to convict, and Mr Western’s review note does not at all read as if composed to reach a pre-determined conclusion; the note suggests that the author was seeking to review the case fairly and even-handedly, and the final conclusion against prosecution comes as something of a surprise. In the end we are, however, satisfied that there are five points which [the officer] as defendant would have to overcome if he were to defeat the prima facie case which in Mr Western’s judgment lay against him and these were points which Mr Western did not address and resolve. Put in their simplest terms these points are ….

42.

In our judgment these are matters which should have been taken into account on an objective appraisal of the prospects of success of a prosecution if brought, and the failure to take them into account vitiates the Director’s decision. It also appears to us that Mr Western (inadvertently, we feel sure) applied a test higher than that laid down in the Code. We accordingly quash the decision. In doing so we must emphasise that the effect of this decision is not to require the Director to prosecute. It is to require reconsideration of the decision whether or not to prosecute. On the likely or proper outcome of that reconsideration we express no opinion at all.”

Mr Michael Mansfield QC submits on behalf of the claimant that article 2 of the European Convention on Human Rights requires a departure from the established position, both by the Director and by the court. He described two decisions of the Strasbourg court, in Öneryildiz v Turkey (2005) 41 EHRR 20 and Bekos and Koutropoulos v Greece (judgment of 13 December 2005, unreported), as forming the rock on which the rest of his arguments were founded. There are three strands to those arguments. In relation to all of them, the reliance placed on article 2 is of course by way of section 6 of the Human Rights Act 1998, which requires both the Director and the court, as public authorities within the meaning of the Act, not to act in a way that is incompatible with Convention rights.

First, it is submitted that the decision not to prosecute any individual officer is itself a violation of article 2 in the circumstances of this case. Stress is placed on the status of article 2 as a provision fundamental to the human rights regime, imposing both substantive obligations (to protect life and not to take life) and procedural obligations, including the obligation to carry out an effective investigation, especially where the deprivation of life has been at the hands of agents of the state. One of the purposes of the investigation is to identify the perpetrators and to make them personally accountable for the death. The decision not to prosecute individual officers in this case amounts to a failure to secure the personal accountability required by article 2. Prosecution of the office of Commissioner for failures in the system is not good enough.

Secondly, it is submitted that the evidential test in the Code is itself incompatible with article 2 in preventing a prosecution in cases where a jury properly directed could convict public officials of offences amounting to a violation of article 2. The same reasoning is applied to article 3 even though it does not arise directly in this case. In all such cases it is said that the requisite approach is to consider whether there is sufficient evidence to survive a dismissal application in advance of trial and a submission of no case to answer at the trial. The test to be applied is that laid down in R v Galbraith [1981] 1 WLR 1039, 1042B-D, in relation to submissions of no case to answer. In particular, “where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty”, then the Director should bring a prosecution.

Thirdly, it is submitted that in a case coming within the scope of article 2 the court is required to undertake a more intensive review of the Director’s decision than that laid down in Manning. It is no longer appropriate to adopt a Wednesbury approach, a proposition which is said to be supported by R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532. The court must not set the threshold so high as barely to touch the Director’s reasoning, nor must it simply examine whether the decision is a reasonable one, but it must ask itself whether there is on the evidence a case capable of being mounted. This goes beyond a role of close or anxious scrutiny and involves assessing whether, as Mr Mansfield put it, the Director’s decision “has produced the goods”.

We need no persuading of the importance of article 2. It lays down essential safeguards for the protection of human life and has been repeatedly described as one of the most fundamental provisions in the Convention. Subject to the exceptions contained within article 2 itself, the obligations imposed by it are absolute; though it should be noted that one of those exceptions is highly material in the present case, namely that there is no violation where “deprivation of life … results from the use of force which is no more than absolutely necessary … in defence of any person from unlawful violence …” (article 2(2)(a)).

Article 2 imposes both substantive and procedural obligations on member states. The substantive obligations include the obligation not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. The procedural obligations include an obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, implicated. For those propositions and a fuller summary of this extensive and well-trodden territory, we refer to the judgments of Lord Bingham in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 at paras 18-20 and R (Middleton) v West Somerset Coroner [2004] 2 AC 182 at paras 1-2. It is within that broad framework that the cases relied on by Mr Mansfield fall to be considered.

Öneryildiz v Turkey was a case referred to the Grand Chamber following a decision by a Chamber. The essential facts were that a methane explosion in a municipal rubbish tip had caused a landslide which engulfed slum dwellings situated below it, resulting in a large number of deaths. An earlier expert report had found that the tip exposed the inhabitants of the area to danger. Following the accident, two local officials were charged and found guilty under a provision of the Turkish criminal code concerning negligence in the performance of public duties. They were not charged under a much more serious provision of the code imposing criminal liability for causing death through negligence. The Chamber held that article 2 applied because of the positive obligation on states to take appropriate steps to safeguard the lives of those within their jurisdiction; that there was a causal link between the negligent omissions attributable to the authorities and the occurrence of the accident; and that the criminal proceedings could not be considered adequate with regard to the allegations of infringement of the right to life, because their sole purpose had been to establish whether the authorities could be held liable for negligence in the performance of their duties rather than for the deaths that occurred. The Grand Chamber agreed that article 2 applied and that there had been a violation of it.

In its discussion of the legal principles relevant to the issue of compliance with article 2, the Court stated:

“91.

… Where lives have been lost in circumstances potentially engaging the responsibility of the State, [Article 2] entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished ….

92.

In this connection, the Court has held that if the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation to set up an ‘effective judicial system’ does not necessarily require criminal proceedings to be brought in every case and may be satisfied if civil, administrative or even disciplinary remedies were available ….

93.

However, in areas such as that in issue in the instant case, the applicable principles are rather to be found in those which the Court has already had occasion to develop in relation to the use of lethal force, principles which lend themselves to application in other categories of cases.

In this connection, it should be pointed out that in cases of homicide the interpretation of Article 2 as entailing an obligation to conduct an official investigation is justified not only because any allegations of such an offence normally give rise to criminal liability … but also because often, in practice, the true circumstances of the death are, or may be, largely confined within the knowledge of State officials or authorities ….

In the Court’s view, such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities ….

Where it is established that the negligence attributable to State officials or bodies on that account goes beyond an error of judgment or carelessness, in that the authorities in question, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity …, the fact that those responsible for endangering life have not been charged with a criminal offence or prosecuted may amount to a violation of Article 2, irrespective of any other types of remedy which individuals may exercise on their own initiative ….

94.

To sum up, the judicial system required by Article 2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of a dangerous activity if and to the extent that this is justified by the findings of the investigation ….

96.

It should in no way be inferred from the foregoing that Article 2 may entail the right for an applicant to have third parties prosecuted or sentenced for a criminal offence … or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence …..

On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts …. The Court’s task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Article 2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined.”

On the facts, the Court held that a criminal proceeding limited to negligence by the authorities in the performance of their duties was not sufficient for compliance with article 2. It “left in abeyance any question of the authorities’ possible responsibility for the death of the applicant’s nine relatives” (para 116), and it could not be said that the manner in which the criminal justice system operated in response to the tragedy “secured the full accountability of State officials or authorities for their role in it and the effective implementation of provisions of domestic law guaranteeing respect for the right to life, in particular the deterrent function of the criminal law” (para 117).

We have quoted at considerable length from Öneryildiz v Turkey because of the weight placed by Mr Mansfield on it. In our judgment, however, the case does not give him the help that he seeks to derive from it. Of course, it is clear from the statement of principles that a prosecution to secure individual accountability for a death must be brought where it is justified, and on the particular facts of the case it is not surprising that a prosecution merely for negligence in the performance of official duties, without any reference to responsibility for the deaths resulting from that negligence, was found not to reflect the gravity of the conduct and to be in violation of article 2. But there is no suggestion in the judgment that a prosecution must be brought even where it is not justified. On the contrary, para 94 refers to the application of criminal penalties “if and to the extent this is justified by the findings of the investigation”, and the tenor of para 96 is that there is no absolute obligation to bring a prosecution. Nor does the judgment purport to lay down any particular test, evidential or otherwise, for determining when a prosecution is to be brought. It does not compel the legal approach contended for by Mr Mansfield nor the outcome for which he contends on the very different facts of the present case.

The second Strasbourg case relied on by Mr Mansfield, Bekos and Koutropoulos v Greece, was an article 3 case arising out of alleged ill-treatment of the applicants by the police. The Court held, first, that there had been ill-treatment in violation of article 3; and, secondly, that there had also been a violation of article 3 though the lack of an effective investigation into the applicants’ credible allegations. It reiterated the general principle that, as with article 2, such an investigation “should be capable of leading to the identification and punishment of those responsible” (para 53). As to the facts, it noted (in para 54) that on several occasions it had been acknowledged that the applicants were ill-treated while in custody; however, no police officer was ever punished, either within criminal proceedings or the internal police disciplinary procedure, and the two police officers concerned had not been suspended despite the recommendation of a report on the findings of an administrative inquiry. Thus, the investigation did not appear to have produced any tangible results and the applicants had received no redress for their complaints.

In our judgment that authority is likewise of no assistance to the claimant’s case. It is not in dispute that an investigation must be capable of leading to the identification and punishment of those responsible for an offence; but the adequacy of the investigation is not in issue in these proceedings, and the Court’s statement of principle tells one nothing about the test to be applied when deciding whether a prosecution should be brought in the light of the evidence obtained in the course of the investigation.

Turning to the three strands of argument founded on those two cases, it is convenient to start with Mr Mansfield’s submission that the evidential test in the Code is incompatible with article 2. As already indicated, we see nothing in Öneryildiz v Turkey or Bekos and Koutropoulos v Greece to support that contention. We have been shown nothing else to suggest that the Convention requires a particular evidential test to be applied, and this is not an area where we would expect the Convention to require uniformity of approach.

It is certainly relevant to ask whether the evidential test in the Code is compatible with the obligation under article 2 to “put in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions” (the formulation in Osman v United Kingdom (2000) 29 EHRR 245, as quoted in Edwards v United Kingdom (2002) 35 EHHR 19, para 54). In our judgment it is. We do not think that the effectiveness of the system of criminal law in England and Wales or of the machinery for its enforcement would be enhanced by bringing prosecutions that were assessed to be likely to fail even if they could get past a dismissal application and a submission of no case to answer, let alone by differentiating in that respect between cases falling within article 2 and 3 and other cases. On the contrary, such an approach would be liable to undermine public confidence in the system, for the reasons previously discussed.

We cannot see any other reason why the evidential test in the Code should be held to contravene article 2. Its application involves a judgment but it is very far from arbitrary, since the judgment must be made by reference to a clearly defined, objective criterion. The test has stood the test of time and the rationale for it remains as valid in the context of article 2 as it does generally.

Similarly, we do not consider that article 2 requires a change in the established position regarding judicial review of a decision not to prosecute. The article 2 context means that the court must submit the case to “careful scrutiny” (see Öneryildiz v Turkey, para 96), but that is entirely consistent with Manning and with the court’s general approach in cases involving fundamental human rights (cf. the “anxious scrutiny” which is axiomatic in the context of asylum claims). But we do not accept that the legal test to be applied in determining whether the decision under scrutiny is lawful departs from the Wednesbury principles applied in Manning. Although Mr Mansfield called for a more intensive form of review than Wednesbury, he was unable to put forward any alternative test falling short of the court forming its own independent judgment on the merits of a prosecution and becoming, in effect, the primary decision-maker. Yet that would involve a direct usurpation of the role entrusted by Parliament to the Director and is plainly an untenable position.

R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 does not assist the claimant. That case was concerned with the justification for an interference with rights under article 8(1). In that context, one of the issues is whether the interference is proportionate to the legitimate aim being pursued. Consideration of proportionality necessarily involves a departure from Wednesbury, as the speeches in the House of Lords made clear. No equivalent exercise arises in determining the lawfulness of a decision not to prosecute, whether or not made within the context of article 2.

In R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724, the claimant prisoner contended that, having informed on a well known drugs trafficker, he was entitled to be detained in a protected witness unit and that removal from the unit would place his life at risk and be a breach of article 2. Auld LJ, with whom Mummery LJ agreed (as did Keene LJ, though adding some remarks of his own), observed at para 62 that “any potential interference with the right to life requires the most anxious scrutiny by the court, since it is the most fundamental of human rights”. He referred to the observation of Ouseley J at first instance that it fell to be judged by a more hands-on test than Wednesbury irrationality, and continued: “More hands-on maybe, but one which despite ‘The long trek away from Wednesbury irrationality … as the only appropriate test, where human rights are involved,’ still seemingly stops short of a merits review by the court – as the House of Lords has just held, in the context of article 10, in R (ProLife Alliance) v British Broadcasting Corpn [2003] 2 WLR 1403 ….”

In para 64 Auld LJ stated that it was still appropriate to show some deference to, and/or to recognise the special competence of, the decision-maker (the Prison Service in that case), although the degree of such deference or recognition was less, and correspondingly the intensity of the court’s review was greater, than for those human rights where the Convention requires a balance to be struck. As to how intense the review should be, the nearest and, for the moment, necessarily imprecise guidance for all human rights cases remained that employed by Lord Walker of Gestingthorpe in the ProLife Alliance case, at para 139: “the court’s task is, not to substitute its own view for that of the [decision-makers], but to review their decision with an intensity appropriate to all the circumstances of the case.”

In his conclusion, at para 69, Auld LJ in fact applied a recognisable Wednesbury test, whilst stating obiter that he would have reached the same conclusion if deciding the merits for himself:

“In my view and in the light of all those considerations, the Prison Service’s decision, when subjected to the most anxious scrutiny by this court, is not just well within the bounds of what was reasonable, given the importance of the human rights in play. It justifies the ‘deference’ which the court should accord it and demonstrates the competence the court would expect of it in considering and reaching so critical a decision. For what it is worth, I do not share the uncertainty of Ouseley J as to how the court should decide the matter if the law had developed to the stage where it could make a decision on the merits for itself. I would have reached the same conclusion as the Prison Service, for the reasons it gave.”

That was a case where the decision under review impacted directly on the claimant’s substantive rights under article 2: he was claiming that the decision placed his own life at risk. A prosecutorial decision, for all its importance and despite the article 2 context, cannot be said to require the same intensity of review. In any event, we do not read Bloggs 61 as requiring the court to depart from the test applied in Manning.

Accordingly, we take the view that the relevant legal tests remain as previously established and that the approach in Manning should be followed. The Director’s decision was lawful if it was taken in accordance with the Code and was a decision reasonably open on the material before him. The role of the court on judicial review, applying careful scrutiny or anxious scrutiny (we see no material distinction between those expressions), is to determine whether those conditions were met. If the answer is “yes”, the decision was lawful and did not violate article 2.

On that basis, the first strand in Mr Mansfield’s arguments, namely the submission that the decision not to prosecute individual officers was itself a violation of article 2 in the circumstances of this case, raises no separate issue. Whether the decision violated article 2 will be answered by the exercise considered above, and it is not for the court to form its own independent judgment on the merits of a prosecution.

We therefore proceed to consider the lawfulness of the Director’s decision on the basis set out above. Although Mr Mansfield contended for the stricter test which we have rejected, he argued in the alternative that the decision was unlawful on the test in Manning. In either case, as already mentioned, the argument is directed at the decision not to bring any charge of murder or gross negligence manslaughter against individual officers. No complaint is now made of other aspects of the decision.

Our detailed consideration of the relevant material in the light of Mr Mansfield’s submissions is set out in the appendix to this judgment, since it deals with matters covered by the order under section 4(2) of the Contempt of Court Act 1981. We confine ourselves here to matters that are not covered by that order.

First, we note that the decision was taken by a senior and highly experienced Crown prosecutor and was reviewed by the Director himself and by leading counsel, both of whom have very great practical experience of serious criminal trials. The informed judgment of such people on a matter of this kind is one that, as Lord Bingham said in Manning, it will often be impossible to stigmatise as wrong even if one disagrees with it.

We also note that the decision-making process was lengthy, careful and thorough, and that the review note is clear and detailed. There is no suggestion, and we have seen nothing to support a suggestion, that the exercise was approached with any predisposition as to the outcome or that there was anything other than a fair and even-handed review of the case.

We are satisfied, both from the terms of the decision letter of 17 July 2006 and from the review note read as a whole, that Mr O’Doherty directed himself by reference to the Code and, in particular, that the evidential test he applied in relation to each of the individuals considered was whether there was sufficient evidence to provide a realistic prospect of conviction, i.e. whether a jury was more likely than not to convict. We reject Mr Mansfield’s contention that he slipped into applying the criminal standard of proof rather than the “more likely than not” test.

It is not contended that Mr O’Doherty erred in his understanding of the law relevant to murder or gross negligence manslaughter.

The focus of the submissions we have considered has been on the review note, coupled with the contents of the IPCC report, rather than on the reasons given in the decision letter of 17 July 2006. It may nonetheless be helpful for us to set out the relevant part of the decision letter, since it does at least indicate the broad issues addressed and it represents what the Director thought could be put into the public domain without prejudicing the criminal proceedings under the 1974 Act. It reads as follows:

“I will deal with the most serious charges first. I considered the actions of the two police firearms officers who actually shot Jean Charles. In the circumstances of this case, if the prosecution could prove that they were not acting in self defence (either of themselves or others) then they would be charged with murder. The order was given that Jean Charles was to be stopped from getting on the train. Although officers in the control room intended that Jean Charles should be arrested outside the station, the firearms team were not in place to make such an arrest, nor was this intention made explicit to the firearms officers who were being sent down to the train. All the available evidence suggests that they believed that Jean Charles had been identified as a suicide bomber, that they had been directed to stop him from blowing up the train and that they had to shoot him to prevent that from happening.

The burden would be on the prosecution to prove beyond reasonable doubt that these two officers did not honestly and genuinely believe that they were facing a lethal threat and so I looked to see if there was sufficient evidence to disprove that they had such an honest and genuine belief. Both officers stated that Jean Charles was wearing a ‘bulky’ jacket when they saw him but in fact Jean Charles was wearing a simple denim jacket. I therefore took this into account as it could indicate that the officers had lied. However even if I could prove that the officers had lied, rather than simply being mistaken, this alone would not be enough to commence a prosecution for murder as there could be other reasons for an officer to lie. I also considered their explanations of Jean Charles’s movements when they approached him, to see if there was evidence that they had fabricated those accounts to justify their actions. Both refer to Jean Charles getting up and advancing towards them with his hands down by his side before he was tackled by a surveillance officer and forced back into the seat. The firearms officers then shot Jean Charles. I had to consider whether the prosecution could argue that the restraint meant that no bomb could be detonated and that the firearms officers’ actions were unlawful.

However I must bear in mind that this happened in a matter of seconds and there is some independent evidence that supports the officers’ accounts that they feared Jean Charles might detonate a bomb. A witness sitting opposite Jean Charles said ‘I got the impression that he was reaching to the left hand side of his trouser waistband.’

I also took into account whether the number of bullets fired might help to found a prosecution but concluded that it did not. The number of bullets would only have been relevant if the intent of the officers was in question but it does not undermine their claim that they acted in self-defence. It could equally be argued that it supported their belief that Jean Charles was a person about to blow up the train and that their actions were the only means available to prevent significant loss of life.

As I cannot prove the officers did not act in genuine self defence, I cannot charge them with murder or any other offence of assault, including manslaughter.

There is some disagreement between officers and the members of the public as to whether any warning was given that armed police were approaching the train. In a situation such as this, where a warning to a suspected bomber could be fatal for officers and the public, no warning should be given. However some police officers say that they did hear a call of ‘armed police’ before the shooting and although passengers did hear officers shouting as they ran down the stairs, none of them heard words ‘armed police.’ Both of the officers who shot Jean Charles say that they shouted ‘armed police’ immediately before they fired but whether they did, and if so, whether it was intended as a warning to Jean Charles or to others in the carriage is unclear. There is no doubt that some police officers did shout something before any shots were fired but it is not possible to be certain what that was. Unless I could prove that officers had lied and had done so to mislead any investigation, I could not prosecute them for attempting to pervert the course of justice.

Next I carefully examined the roles of those police officers concerned in planning the surveillance and stop and those who carried it out. As you will know there were a number of people involved and there is no doubt that messages were misinterpreted with tragic consequences. I have considered whether any errors or other conduct by individuals could be categorised as criminal. In this I have applied the law on gross negligence manslaughter, misconduct in public office and the Health and Safety at Work Act. Even where I found that individuals had made mistakes I found insufficient evidence that those mistakes were so bad that they could be described as criminal. As criminal proceedings are to be brought against the Commissioner, I cannot provide you with a detailed account of the conduct of those individuals, as that conduct will form part of the prosecution case.”

Our consideration of the decision letter and the review note, together with the IPCC report, leaves us satisfied that the decision was a reasonable one. Indeed, though it is not necessary for us to go this far, we see no reason to disagree with the decision. We refer to the appendix for the detailed reasons in support of our conclusion.

It follows that in our judgment the Director’s decision was lawful and the claimant’s challenge to it must be dismissed.

Our conclusion as to the lawfulness of the Director’s decision has been reached without examination of the underlying evidence. That is the normal position in judicial review proceedings of this kind. For example, in Manning the court took into account that it had not read all the witness statements and transcripts or listened to the relevant tapes and that it did not have a comprehensive grasp of the whole case (para 40). In the present case our understanding of the case as a whole has been greatly assisted by the very detailed IPCC report (though we bear in mind that it contains some inaccuracies, as Mr O’Doherty identified during his review process) and by the fact that the review note itself is very detailed. In the circumstances we are satisfied that it is not necessary for the claimant to see the underlying evidence or for us to examine it in order to deal properly with the challenge to the Director’s decision not to prosecute individual officers.

In particular, we reject Mr Mansfield’s contention that disclosure is needed in order to make sense of certain matters and to enable certain questions to be answered. The IPCC report and the review note are clear enough; and in so far as there are points of uncertainty or unanswered questions, the resolution of those matters is not necessary for an assessment of the lawfulness of the Director’s decision.

That effectively disposes of the separate issue concerning disclosure of the underlying evidence since, as we understand it, disclosure is sought by the claimant solely on the basis that it is needed to enable the court to determine in these proceedings whether the decision not to prosecute is in violation of article 2. It is not contended that the IPCC is under any independent obligation to disclose the evidence.

We should, however, put on record that the IPCC has made clear, in a letter dated 4 December 2006 and through the submissions of Miss Dixon, that it has no objection in principle to disclosure of the evidence, suitably redacted, for the purposes of these proceedings, though the process of redaction would be likely to take a very considerable time and would necessitate an adjournment of the proceedings to a date in January or February 2007. The Director objects to disclosure, principally because of concerns about the risk of prejudice to the criminal proceedings under the 1974 Act: The risk may be a relatively low one with suitable confidentiality undertakings and reporting restrictions in place, but it is submitted that the risk should not be run in circumstances where the claimant does not need to see the evidence for the purposes of the challenge to the Director’s decision. We accept the Director’s submissions on the issue.

We should also put on record that the IPCC has indicated through Miss Dixon that its current intention is to disclose the whole of the evidence, suitably redacted, for the purposes of the coroner’s inquest, though any final decision would have to take into account the potential effects of such disclosure if the inquest took place before the criminal trial. That is relevant to wider submissions made in the claimant’s skeleton argument, but not pursued orally, as to the claimant’s entitlement to disclosure of the underlying evidence for the purpose of effective participation in the investigation required by article 2. It suffices for the purposes of the case before us that the claimant has been able to participate effectively, without disclosure of the underlying evidence, in the process of determining the lawfulness of the Director’s decision not to prosecute.

Miss Dixon helpfully took us through the provisions of the Police Reform Act 2002 and the relevant statutory guidance concerning the powers and duties of the IPCC with regard to disclosure of information and its investigation report to a complainant. In the circumstances, however, we think it unnecessary to examine that material further. It is also unnecessary to consider R (Green) v Police Complaints Authority [2004] 1 WLR 725, to which Mr Crow referred us.

We have considered the issue of disclosure notwithstanding that the challenge does not even feature in the claim form (which complains of non-disclosure of the IPCC report and the review note, but not of the underlying evidence). Had we taken a different view of the outcome, we would have required Mr Mansfield to amend the claim form so as to plead the case clearly before we granted any relief.

For the reasons given in this judgment, the claim is dismissed.