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

On 12 April 2019, Gavin was restrained outside The Melville Pub in a Mixed Martial Arts (MMA)-style “choke hold” by a member of the public (referred to by the CPS as “Customer 1”) for over six minutes, which restricted his ability to breathe. He entered a cardiac arrest and died eight days later in hospital after suffering irreversible hypoxic ischaemic brain injury. An SIA-licensed door supervisor (“the Door Supervisor”) – who had received training on the risks of neck restraint and the need to monitor and respond to the condition of the person being restrained – failed to intervene.

Name of Deceased (if known). Gavin Jay BROWN.

Medical cause of death. [a] Hypoxic/Ischaemic brain damage. [b] Cardiac arrest in the context of physical restraint.

How, when and where, and for investigations where section 5(2) of the Coroners and Justice Act 2009 applies, in what circumstances the deceased came by his or her death. On the 12th April 2019, at approximately 20:21hrs, Gavin Jay Brown attended the Melville Pub. He was involved in an altercation, which resulted in him being held in a neck restraint for a minimum of 6 minutes and 19 seconds, by a male customer. During this time no welfare checks were made. This restraint led to irreversible hypoxic ischaemic brain injury, leading to Gavin's death at Salford Royal Hospital, on 20th April 2019 at 11:30 am.

Conclusion of the Coroner as to the death. Unlawful killing.

On 12 April 2019, Gavin Brown attended the Head Bar with a friend at approximately 4.30pm. They had five or six pints of lager before leaving in a taxi after 8pm. Mr Brown asked the taxi driver to stop at a convenience store en route to their destination, and acquired a pair of rubber gloves and a black bin bag or liner. Once back in the taxi, he instructed the driver to stop in the vicinity of the Melville public house. The taxi driver states that Mr Brown seemed angry and told his friend to stay there and that he would ‘sort this out’. There is evidence that Mr Brown was barred from the Melville. He then left the taxi and when he had not returned after five or six minutes, his friend also exited the vehicle in order to find him.

One of the doormen at the Melville [ie. the Other Doorman] was confronted by Mr Brown shortly after he left the taxi. He squared up to the doorman in a boxing stance and is described as having a mask on his face and a hood up. The doorman at first thought it was some kind of joke but was then punched twice. The doorman took them both to the floor by Mr Brown’s legs and states he was gouged in the eye. He was screaming with pain. A female customer saw the initial confrontation and heard the doorman screaming. She mistakenly thought he had been hit in the face with acid and went into the pub to get water. She was heard by a member of staff to say ‘He’s had acid thrown in his face’. Another witness says he heard a female customer shout ‘Water we need water. Acid attack. It’s all kicking off out there. His eyes. His eyes’. It seems that a further mistaken belief was aired that the doorman had been stabbed.

Various customers and staff went to the scene outside, which is described by two witnesses as chaotic. One customer states that Mr Brown was struggling and thrashing with two men restraining him, and that he felt the two men would be attacked if they let him free. Another customer outside saw the initial altercation and heard a scream she describes as ‘awful’ and unlike anything she had heard before. The witness saw people come out of the pub and one man, presumably Customer 1, put Mr Brown into a choke hold, telling him when he tried to move that ‘you’re not going fucking anywhere’. The witness states that there was no struggle once Mr Brown had been restrained. It is clear from the witness statements that once restrained, there was no further struggle from Mr Brown, who is described as not moving and not saying anything. One of the witnesses was told by two females that a doorman had been stabbed and had acid thrown in his face. The landlord told this witness to stay outside with Mr Brown ‘in case he kicks off’. The DJ at the pub was told that someone ‘had acid in his face’. He describes the scene as somewhat ‘chaotic’. He could see no movement from those involved in the restraint. One of the barmen was under the impression that there had been a fight resulting in someone having acid thrown in their face. He saw a doorman sat to one side with blood dripping from his eye. Some customers were shouting ‘you’re not going anywhere’. This witness wrongly informed police there had been an acid attack and a stabbing.

The actions of the suspects can be summarised as follows: Customer 1 had Mr Brown in what is described as a choke hold. The Door Supervisor is initially described as holding Mr Brown by his chest, although when police arrive he can be seen to be crouched by the Mr Brown’s feet on the body-worn video. There is little or no reliable evidence as to the physical involvement of Customer 2 and Customer 3, although the former admits to assisting in the restraint by putting his foot on Mr Brown’s ankle. The body-worn footage shows that as the police arrived, Customer 2 appears to be standing over Mr Brown with his foot on his legs.

The police arrived after Mr Brown had been held for over six minutes. The bodyworn video of the first two officers on the scene was recording. One officer could see that Mr Brown was being held in a ‘rear naked choke’, and that he had a bin bag around his lower face in the fashion of a snood. He instructed Customer 1 to release his hold and then arrested and handcuffed Mr Brown. When he was turned over and appeared to be unresponsive, the officer checked for a pulse and first aid was commenced. The second officer assisted in the arrest and it is only approximately one minute after their arrival that the officers raise concerns about the welfare of Mr Brown.

A statement was provided to the Coroner by an official from the Security Industry Association [Mr Holyland]. He describes the licensing regime for door supervisors. From 1 June 2010, physical intervention training was mandated in order to obtain a licence. The training was not required for existing licence holders but by 2016 it became part of the process for licence renewal applications. Those who did not receive training could no longer act as licensed door supervisors but could still work as licensed security guards. The Door Supervisor in this case would have received training when his licence was renewed in 2017. The training covered the risks of positional asphyxia, and the need to monitor the condition of a subject of physical intervention. The witness states that holding a subject on the ground is not regarded as safe practice and that force needs to be de-escalated at the earliest opportunity. Neck restraint should be avoided. Unnecessary use of force by others should be challenged. The course material that would have been used for the Door Supervisor’s training was provided in evidence.

A Home Office pathologist [Dr Charles Wilson] concluded that the cause of death was hypoxic/ischaemic brain damage, due to an out of hospital cardiac arrest in the context of physical restraint. He states that it is possible that Mr Brown’s nose and mouth were obstructed by the plastic bag. It is equally possible that he may have suffered a cardio-respiratory arrest as a consequence of neck compression. These two asphyxia mechanisms are not mutually exclusive; Mr Brown may have been rendered hypoxic by a combination of neck compression and external obstruction of his airway by the plastic bag. Unconsciousness through neck compression can take place within 10 seconds and if not relieved, a risk of irreversible brain damage can arise within two or three minutes. A person who has been physically resisting restraint can become unconscious and suffer hypoxic brain damage more quickly than a person who is calm and not struggling.

A second doctor [Dr Jasmeet Soar] was instructed on behalf of the Coroner. His conclusion was that on the balance of probabilities, the significant contributing factor to the death was compression of the neck whilst being restrained in a choke hold. He states that the contribution of the bin liner is uncertain, but the harmful effects of the neck compression alone were sufficient to cause unconsciousness, cardiac arrest, a severe brain injury and death. This doctor states that neck compression can lead to unconsciousness within 8-18 seconds, and breathing can stop after one to two minutes. Cardiac arrest occurs between three and eleven minutes after breathing stops. At the inquest this second doctor stated that in his view the role of the bin liner was either limited or made no contribution to the outcome. At the request of the police, this doctor further expressed his opinion to the criminal standard of proof. He concluded that ‘it is beyond reasonable doubt that compression of his neck whilst being restrained in a choke hold was a significant (i.e. more than trivial) contributing factor to the death of Gavin Brown’. The original pathologist was given the opportunity to comment further in light of the doctor’s opinion but declined to do so, saying there was no new evidence upon which to change his view.

Ms Blackstock and Mr McGuinness KC agree that the “bin liner” (“plastic bag”) was and is irrelevant, given Dr Soar’s view of its role.

The Door Supervisor stated in interview that he came out of the pub at a point where three people were involved. Mr Brown had his hand around the other doorman’s neck and was himself being restrained by the neck (presumably by Customer 1). The Door Supervisor knelt down and grabbed Mr Brown’s elbow. He states that he did not have to apply much pressure and that Mr Brown did not try to lash out. He heard voices stating that the other doorman had been stabbed in the eye or had acid poured on him. He was concerned about his colleague’s safety and was concerned that Mr Brown would lash out. He thought if he let go of Mr Brown he might get up and start fighting. He felt resistance from Mr Brown’s arm but held him firmly.

In a second interview he stated that when he went outside, he heard the other doorman screaming ‘My eyes. Help’. There were people screaming that the doorman had been stabbed and that there had been an acid attack. He stated that he felt the need to continue the restraint until police arrived and that Mr Brown was being reasonably held. He did not make any welfare checks and focussed on watching the crowd.

At the inquest the Door Supervisor gave evidence that it took a couple of minutes to extricate the doorman from Mr Brown. He says there were a lot of screaming people around him, and one of Mr Brown’s friends was shouting to let him go. He informed the friend that he could not do so because of the damage to his colleague’s eye and that he had to hold Mr Brown until police arrived. The Door Supervisor stated that there was a lot of resistance from Mr Brown when they removed his hand from the doorman and he continued to feel resistance until police arrived. Other people were in hysterics and screaming, he had an injured colleague and was concentrating on the attacked rather than the attacker. He states that he was focused on preventing Mr Brown getting inside the pub because they had no idea what his intentions were or whether he was carrying a weapon. He felt that everyone was under threat.

Gross negligence manslaughter is a common law offence requiring proof of the following elements: [i] The defendant owed an existing duty of care to the victim. [ii] The defendant negligently breached that duty of care. [iii] That breach of duty of care gave rise to an obvious and serious risk of death. [iv] It was also reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death. [v] The breach of that duty caused the death of the victim. [vi] The circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.

Issue 1: Reasonable Foreseeability. Was the decision of the prosecutor that a properly directed jury would more likely than not conclude that it was not reasonably foreseeable given the Interested Party’s knowledge and position that at the time of his breach of duty of care, his failure to act would result in a serious and obvious risk to Mr Brown’s life an error of law, or so unreasonable that no objective prosecutor could have reached it?

Issue 2: Causation. Was the decision of the prosecutor that a properly directed jury would more likely than not conclude that the breach of the Interested Party’s duty of care did not cause the death of Mr Brown an error of law, or so unreasonable that no objective prosecutor could have reached it?

Issue 3: Truly Exceptionally Bad. Was the decision of the prosecutor that a properly directed jury would more likely than not conclude that the Interested Party’s negligence was not so gross as to convict him of manslaughter, so unreasonable that no objective prosecutor could have reached it?

Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.

The finding that there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which they might rely. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.

Another reason that the [Inquest] verdict of itself cannot be taken as a foundation for criminal proceedings is that the decision of the jury was made on the balance of probabilities. In legal terms, this equates to a finding that your brother’s death more likely than not, or probably, constituted an unlawful killing. This is a significantly lower standard of proof than that required in criminal proceedings. In determining whether there is a realistic prospect of conviction, I have to consider whether a jury could be sure on the evidence of a defendant’s guilt.

This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.

Otherwise, those two sentences make no sense and would not have been included. All of which is supported by a passage in Manning (at §22), describing (and endorsing) an explanatory memorandum which had emphasised that the Evidential Test required a “realistic prospect of conviction” and had said:

The material error of law made by the Decision-Maker in the Impugned Decision was to “look for the same standard of proof that a jury or bench of magistrates would need to find before it could convict”. That is the argument.

an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law … convict the defendant of the charge alleged.

an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged.

As to which this (ie. the predictive threshold):

That is referring to the predictive threshold; not what the jury would be doing. Otherwise, there would have been an immediate contradiction of “jury … properly directed and acting in accordance with the law”.

Reasonableness is the single and invariably-applicable standard of review (Canham §§48-49). It is the conventional standard of substantive review.

The delineated scope of the judicial function matters. Judges can and do, of course, evaluate questions which involve the application of the criminal law. So far as the Elements of gross negligence manslaughter are concerned, a crown court judge may have to decide whether there is a case to answer (evidence taken at its highest on which a jury could convict). The Court of Appeal Criminal Division may have to consider whether to reverse a terminating ruling of no case to answer (see eg. Wood Treatment §3) or quash a conviction (see eg. Rose §94). There is always a delineated scope of the judicial function.

The delineated scope of the judicial function, when dealing with a judicial review of the substance of a prosecutorial decision, is the conventional standard of reasonableness, absent a material error of law. Reasonableness must start, and continue, with the recognition that it is the independent specialist prosecutor who is the primary decision-maker entrusted with the application of the Code Test. There is no appeal to the High Court; still less on evaluative or predictive merits.

Within the single and invariably-applicable standard of reasonableness review, there may be room for contextual factors to make a difference. One of the virtues of the conventional standard lies in its contextual application. The idea that the court needs to stand back “the more so” since the VRR scheme was introduced (Canham §40) is one example. The idea of special restraint in finding unreasonableness “where a CPS review decision is exceptionally detailed [and] thorough” (Monica §46(1)) is another example. The Court is applying the single governing standard of public law reasonableness, consistently with the wide latitude afforded (for principled reasons) to evaluative and predictive judgments of specialist independent prosecutorial decision-makers. But the questions are really these. (1) May the judicial review court find, in the presence of features (compared with their absence), a need to have more from the reasons provided to justify the decision as reasonable? (2) May the judicial review court find from those features (compared with their absence), a need to do more by way of careful scrutiny? (3) Should the judicial review court be transparent about what it finds? My answer is “yes” to all three of these questions. And so, I will turn to answer the third of them.

In the present case, I have found – in the presence (compared with the absence) of the combined features of a decision not to prosecute, in conjunction with a loss of life, after an unlawful killing verdict of a jury at an inquest – a need to have more from the reasons provided to justify the decision as reasonable; and a need to do more by way of careful scrutiny. Notwithstanding that, I am still looking for a reasonable decision and reasoning process; I am still recognising an extensive, principled width of the latitude for evaluative and predictive judgments of the primary decision-maker. Indeed, what I have said does not mean, in the present context and the present case, that the latitude for the primary decision-maker’s evaluative and predictive judgment has narrowed at all. It is the same latitude which the decision-maker has, in assessing what is correct, acting reasonably. The differences lie in what the court needs, and what the court does, in its quest of being satisfied that the decision-maker’s assessment (of what it considered correct) was a reasonable one.

The Door Supervisor was aware that Customer 1 was holding Mr Brown in a chokehold. The Door Supervisor had been trained as to the high danger to life from a person being held in a chokehold. The chokehold was not hidden from the Door Supervisor. That means it was not something that would have been ascertained from the discharge of the very duty of care that was breached (see Rose). This means that the Extrication is the latest time of the onset of a truly exceptionally bad breach of the duty of care, by failing to ensure a change in the restraint.

The Extrication is also the earliest time at which Mr Brown lost consciousness. On the evidence (§50 below), Mr Brown had a grip on the face of the Other Doorman up to the point of Extrication, and Dr Soar’s evidence explained the sort of action (and perceived action) which can continue after a loss of consciousness. The idea that the Other Doorman was unable to get away from an already-unconscious Mr Brown is unrealistic and unsupported by evidence. That means that every realistic alternative, to Mr Brown being conscious up to the point of Extrication is excluded.

The earliest time at which Mr Brown’s injuries were irreversible was one minute after the loss of consciousness. That is Dr Soar’s evidence. That means there was a minimum time window of 60 seconds from the Extrication, in which the discharge by the Door Supervisor of the duty of care owed to Mr Brown – by ensuring a change in the restraint – would have saved Mr Brown’s life.

True, that the truly exceptionally bad breach of the duty of care could have arisen earlier than the Extrication; but the point is that it could have arisen no later than that. True, that Mr Brown’s loss of consciousness could have occurred later than the Extrication; but the point is that it could have occurred no earlier than that. True, that the irreversibility of the injuries could have occurred later than 60 seconds from the Extrication; but the point is that it could have occurred no earlier than that. That means that every realistic alternative is excluded, to there having been a minimum time window of 60 seconds in which all six Elements of gross negligence manslaughter are satisfied.

Mr Omeje owed a duty of care to Mr Brown. (ii) Mr Omeje objectively breached that duty of care by failing to stop the chokehold restraint in accordance with his training and/or check Mr Brown was breathing. (iii) There was objectively a serious and obvious risk to Mr Brown’s life…

Reasonable foreseeability at the time that a breach of the duty of care would result in a serious and obvious risk to Mr Brown’s life… There was nothing hidden about the risk. Mr Brown was lying on the ground in front of Mr Omeje in the chokehold. Mr Omeje had received training that this hold, especially conducted on the ground, was a risk to life because it could cause positional asphyxia. He accepted in evidence that he knew this and he received training as to the risks. His knowledge was therefore distinct to the members of the public present. It should therefore have been clear and unambiguous to him that Mr Brown’s life was at risk if he did not stop the chokehold, or at a minimum, monitor his breathing in that position…

The breach of the duty caused or made a significant (i.e. more than minimal) contribution to the death of the victim… Dr Soar’s evidence as to fatality is that although a person can become unconscious within a matter of seconds, the impact of a lack of oxygen takes longer to have an effect on the brain… His statement and evidence to the inquest was clear that if the chokehold had stopped within one to two minutes of him becoming unconscious, Mr Brown would have been able to regain his breath and would have survived. From the CCTV footage and evidence given, that window of time was clearly available if Mr Omeje had followed his training – stopped the chokehold once Mr Kamga was free; taken him from the prone position on the floor to a seated position; and checked his breathing. All these were reasonable steps to have taken at that point. There was no necessity to continue the chokehold after Mr Kamga was released. Mr Kamga was free of the hold and removed away from Mr Brown. There were two members of the public there assisting with the restraint who could have continued to do so in a safer hold should Mr Omeje have appropriately directed them to do so, and taken the lead in an appropriate restraint himself…

The circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction… [T]he context is that Mr Brown is being held on the ground in a hold known to Mr Omeje to be a risk of death, with no necessity for the hold to be applied. Mr Omeje says that he was concerned about his colleague and was focussed on getting him help. But Mr Kamga was getting that help and the police and ambulance had already been called. Mr Omeje accepts that he remained kneeling by Mr Brown’s side, with his hands on Mr Brown’s arm. The eye witness evidence is that there was no further movement after this point from Mr Brown. A minute spent remaining still is a long time. Mr Omeje had plenty of opportunity to avoid Mr Brown’s death by stopping the hold and conducting a welfare check.

Issue 1: Reasonable Foreseeability. Was the decision of the prosecutor that a properly directed jury would more likely than not conclude that it was not reasonably foreseeable given the Interested Party’s knowledge and position that at the time of his breach of duty of care, his failure to act would result in a serious and obvious risk to Mr Brown’s life an error of law, or so unreasonable that no objective prosecutor could have reached it?

This issue concerns Element [iv]. The legal merits of this issue came into very clear focus through the submissions at the oral hearing. The key point is about proving the Door Supervisor’s awareness of the chokehold, at the first step in the Case Analysis (§31i above).

I am quite satisfied that the Door Supervisor owed a legal duty of care to your brother. He was acting in the course of his employment at the Melville public house when he became involved in the incident with Mr Brown. The next element of the offence is proof of a negligent breach of that duty of care. In my view the prosecution would have to prove that a failure to conduct a welfare check on Mr Brown constituted a breach of his duty of care. The training material provided by the industry professional makes it clear that it is important to monitor the life signs of a subject held in a high-risk position. The dangers of rear-choke, or strangle holds are also highlighted in the training. I am therefore satisfied that a breach of the Door Supervisor’s duty of care to Mr Brown could be proved.

Then this:

[iv] [a] Firstly, it is necessary to prove that it was reasonably foreseeable that the breach of duty of care gave rise to a serious and obvious risk of death. The law is clear that a risk of something serious does not equate to a risk of death, and is not sufficient for the offence of gross negligence manslaughter. The serious and obvious risk of death also has to be reasonably foreseeable on an objective basis. I have to consider what the likely defence would be if the offence was charged, and the effect that any defence would have on the prospects of conviction. [b] A defence lawyer in this case would in my view invite the jury to question why, if a serious and obvious risk of death existed, not one person present at the scene appeared to be aware of it? There is no evidence of anyone alerting Customer 1 or the Door Supervisor to the fact that Mr Brown’s life was seriously and obviously in danger, including the police who attended. As the most highly trained of any party involved whist the restraint was ongoing, the police did not immediately tell Customer 1 to break off the restraint for fear of a serious and obvious risk of death to your brother. They in fact instructed Customer 1 to let go so they could arrest him, which they proceeded to do and then handcuffed him before realising the seriousness of his condition. [c] The question of what constitutes a serious and obvious risk of death has been recently considered by the courts in the case of Rose (Honey Maria) [2017] EWCA Crim 1168. The mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation. The court concluded that the question of serious and obvious risk must be assessed with respect to knowledge at the time of the breach of duty. It was therefore not appropriate to take into account what the defendant would have known but for his breach of duty. [d] In the context of the present case, the Door Supervisor cannot therefore be held liable for something he would have discovered had he not negligently failed to conduct a welfare check on Mr Brown. For these reasons, it is not possible in my view to sufficiently prove an obvious and serious risk of death on the evidence in this case.

It is common ground that paragraphs [iv][a] and [c] are legally correct statements of the law; and that the crux of the Decision-Maker’s reasoning is at [iv][d].

The Door Supervisor stated in interview that he came out of the pub at a point where three people were involved. Mr Brown had his hand around the other doorman’s neck and was himself being restrained by the neck (presumably by Customer 1). The Door Supervisor knelt down and grabbed Mr Brown’s elbow…

The third problem is that this is what is said in the record of interview to which reference is being made:

The reference here – in an account given to the police the day after the incident – is about what “I saw” and refers specifically to “by his neck”. Later in the same interview there was this (DC is the detective constable):

HMC So when you arrived outside Stefan was already there holding Gavin.

AO He was holding him in a restraining order.

HMC Where were his arms?

AO To be honest it was around his chest.

HMC The first thing you said to police was “restraining order by his neck or something like that”. We heard from SO that when he came outside you were already there.

AO No.

…

FP You knew that neck restraint was extremely dangerous.

AO In that instant it was dangerous.

FP Especially if done by someone without any training.

SO I can’t answer that as I don’t know Mr O’Donnell’s training.

HMC The question refers to anybody without training.

AO Um yes. I was grateful for whoever was able to help. Wasn’t a question of who had training. I was grateful that Mr O’Donnell helped.

FP You knew that neck restraint was dangerous and you knew SO was holding G in a neck restraint – you must have known.

AO He was holding him around his chest. At the time I was more focussed on the injured person.

FP The evidence you gave to the police was Stefan was holding Gavin in a restraint after his neck. p.2 of the interview

AO At the time I didn’t really focus on that, more focused on the screams I could hear, help them out of the predicament.

The test of reasonable foreseeability simply requires the notional objective exercise of putting a reasonably prudent professional in the shoes of the person whose conduct is under scrutiny and asking whether, at the moment of breach of the duty on which the prosecution rely, that person ought reasonably (ie. objectively) to have foreseen an obvious and serious risk of death.

Secondly, as Ms Blackstock submitted, the unaddressed problem with the emphasis on the position of “anyone … including the police who attended” is that the bystanders were not “reasonably prudent professionals” trained in the dangers of neck restraint; and the arriving police were not “in the shoes” of the Door Supervisor.

Issue 2: Causation. Was the decision of the prosecutor that a properly directed jury would more likely than not conclude that the breach of the Interested Party’s duty of care did not cause the death of Mr Brown an error of law, or so unreasonable that no objective prosecutor could have reached it?

This issue concerns Element [v]. Again, the legal merits came into very clear focus through the making and testing of oral submissions at the substantive hearing. The key point is about proving the earliest time at which Mr Brown lost consciousness, at the second step in the Case Analysis (§31ii above).

[v] [a] Even were that not the case, the next element to be proved is also fraught with difficulty. [b] The prosecution would have to prove that the breach of duty in not conducting a welfare check caused the death of Mr Brown. [c] Unlike many cases of gross negligence manslaughter, a prosecution of the Door Supervisor would be based on a failure to do something on his part. Many cases of gross negligence manslaughter involve a defendant who has done an obviously negligent and dangerous act. [d] Where that is not the case, such as here, the prosecution must prove that had the defendant not neglected to do what he should, the deceased would have survived. The case of Broughton [2020] EWCA 1093 put this another way, namely that in order to be sure that the gross negligence caused the death, the prosecution must exclude realistic or plausible possibilities that the deceased would anyway have died. [e] This is extremely hard to prove in the circumstances of this case. [f] There is no evidence upon which to conclude with any certainty when Mr Brown’s condition became irreversibly fatal. [g] It is also impossible to identify a specific point at which the Door Supervisor should have made a welfare check, and if that point in the timeline were to have been after Mr Brown was already fatally injured, the Door Supervisor’s negligence would not be responsible in law for the death. [h] What can be said with some certainty is that the duty on the Door Supervisor to conduct a welfare check would not have arisen as soon as the choke hold was applied by Customer 1. At that stage the other injured doorman was still entangled with Mr Brown and to the mind of the Door Supervisor, in danger of further potentially serious assault. A jury is almost bound to conclude that it would have taken some time to extricate the doorman and properly restrain Mr Brown before any duty on the Door Supervisor to check Mr Brown’s welfare could have arisen. [i] Even if the Door Supervisor had made a check at the first available opportunity he reasonably had to do so, we cannot disprove the possibility that fatal injury to your brother had already occurred by that point. [j] I have to conclude therefore that there is insufficient evidence to satisfy the legal test for causation in gross negligence manslaughter against the Door Supervisor.

The Decision-Maker’s point at [v][f] is that there is no evidence upon which to conclude with any certainty when Mr Brown’s condition became irreversibly fatal. But what matters is whether there is evidence upon which to conclude with certainty when was the earliest that Mr Brown’s condition became irreversibly fatal.

The Decision-Maker’s first point at [v][g] is that it is equally impossible to identify a specific point at which the Door Supervisor should have made a welfare check. But what matters is not one specific point of breach, but a point which was the latest at which breach started. The Decision-Maker has accepted Elements [i] and [ii]. What must be possible is to identify a point which was the latest at which the Door Supervisor should have made a welfare check.

The Decision-Maker’s second point at [v][g] is this. If the point in the timeline at which the Door Supervisor should have made a welfare check were after Mr Brown was already fatally injured, the Door Supervisor’s negligence would not be responsible in law for the death. That is right. But not so if the earliest that Mr Brown’s condition became irreversibly fatal came after the latest at which the Door Supervisor should have made a welfare check.

The Decision-Maker’s point at [v][h] is this. The duty to conduct a welfare check would not have arisen as soon as the chokehold was applied by Customer 1, and it would have taken some time for the Extrication of the Other Doorman and to properly restrain Mr Brown before any such duty could have arisen ([h]). That is also quite right. But it is all consistent with a duty which did, at the latest, arise after the Other Doorman was in fact Extricated. Which is precisely the moment at which the 60 second window identified in the Case Analysis.

I have no doubt in the[] circumstances that a properly directed jury would find Customer 1’s use of force to protect the doorman or indeed others from harm to have been reasonable and therefore lawful in the initial stages of the incident… I anticipate that you might … wonder whether there came a point where initially reasonable use of force became unreasonable and therefore unlawful after Mr Brown was effectively restrained and the other doorman safely removed from the situation. This raises complex issues of legal causation. The medical practitioners are at least agreed that unconsciousness due to neck compression can occur very quickly, within a matter of seconds, and that cardiac arrest and irreversible brain injury can follow soon thereafter. This time scale becomes even shorter where there has been physical exertion through struggle. In order to attribute criminal liability for the death of Mr Brown to Customer 1, the prosecution would have to prove that the fatal injury was sustained during a period of the restraint which we could assert was unlawful. You will already appreciate that I am of the view that the initial restraint will be deemed to have been lawful. How could the prosecution prove that the fatal injury did not occur during that period of lawful restraint? The medical evidence cannot provide a definitive answer on the issue, and a jury will be directed that any doubt must always as a matter of law be resolved in the favour of a defendant. I do not therefore believe that trying to dissect the timeline in this way could lead the jury to a safe and sure conclusion on legal causation.

when an individual is restrained there can be an initial voluntary struggle as part of a survival instinct. As the brain blood flow and oxygen levels decrease and consciousness is lost the body will continue to make involuntary movements including strong efforts to breath[e] (agonal breaths), and body spasms and stiffening (seizures) for a short period (e.g. up to a minute) – these ongoing movements after loss of consciousness are often mistaken as an ongoing active resistance to the restraint.

Secondly, she can point to the Door Supervisor’s accounts, summarised by the Decision-Maker, as including that “there was a lot of resistance from Mr Brown when they removed his hand from the doorman” (§11 above). The Decision-Maker elsewhere refers to Customer 2’s evidence: “they were trying to get the Other Doorman out of Mr Brown’s grip”. The Door Supervisor told the police: “I pulled Gavin’s arm out and held it. Then at that time that point Alain was able to get free then and go and get seen to”; and “Gavin … had hold of Alain” so that when the Door Supervisor “took hold of Gavin’s hand that he had Alain with. Alain got away”. These are points on the factual and evidential merits.

… It is … therefore reasonable to assume that Mr Brown was not unconscious during the time that he continued to hold onto Mr Kamga with a tight grip.

In the same vein, it is not unfair to record that in Ms Blackstock’s oral submissions, she began with an analysis which put forward an earliest loss of consciousness of 20:27:10. She was entitled to withdraw that contention and I do not hold her to it. But it does rather illustrate the problem about proof, clarity and room for doubt. It is at this point, moreover, that it has to be recalled that it was not put to Dr Soar at the Inquest that the description of the witnesses who gave evidence was inconsistent with Mr Brown having already lost consciousness. The point is that, rightly, the Decision-Maker was thinking about what the prosecution could prove; and whether “we can disprove the possibility” of the fatal injury having occurred by the time of the first available opportunity which the Door Supervisor reasonably had. That was what was being evaluated. On this issue, the explanations and reasons do justify and substantiate the conclusions. The reasons justify the decision as reasonable, in light of the evidence and what was said earlier in the Impugned Decision. Moreover, the Decision-Maker was very clear that causation was addressed on the premise that he was wrong about Element [iv] (reasonable foreseeability). It follows that the claim for judicial review cannot succeed. The Decision-Maker’s evaluative conclusion, that the Evidential Stage test is not satisfied for a necessary Element of the crime of gross negligence manslaughter, means there is no basis for overturning the Impugned Decision or remitting the matter for reconsideration afresh.

Issue 3: Truly Exceptionally Bad. Was the decision of the prosecutor that a properly directed jury would more likely than not conclude that the Interested Party’s negligence was not so gross as to convict him of manslaughter, so unreasonable that no objective prosecutor could have reached it?

This issue concerns Element [vi].

[I]t must, in the opinion of the jury, amount to gross negligence. The question, “supremely a jury question”, is: “having regard to the risk of death involved, was the conduct of the defendant… so bad in all the circumstances as to amount in the jury’s judgement to a criminal act or omission?” …

… The courts have emphasised that to repeat the word “gross” is insufficient. The jury need to understand that they must be sure of a failure that was not just serious or very serious but “truly exceptionally bad”. The offence does not require mens rea. There is no need to prove the defendant’s state of mind and in particular their foresight of the risk of harm or death. However, the courts have held that there may be cases in which the defendant’s state of mind is “relevant to the jury’s consideration when assessing the grossness and criminality of his conduct”. This approach has been endorsed on a number of occasions, and it has been recognised that it may operate in the accused’s favour.

Even assuming for a moment that causation could be made out, the prosecution would still have to satisfy the final element of gross negligence manslaughter, namely that the breach was a gross breach. The threshold for such a finding by the jury has been set very high by the court in the case of Misra … The court stated that the jury would have to find the defendant’s actions so truly exceptionally bad in all the circumstances as to amount to a criminal act or omission. In the circumstances of this case, I am afraid that I consider the test for grossness to present another insurmountable hurdle for the prospects of a conviction for gross negligence manslaughter. The Door Supervisor’s breach of duty, if proved, came in the context of what he would at the time have believed to have been a serious and potentially ongoing assault on a colleague by Mr Brown, resulting in a reasonable need to restrain and detain him until the arrival of the police. Particularly where the alleged breach is an omission, I do not believe that the circumstances of this case would allow a properly directed jury to conclude that the Door Supervisor’s conduct was truly exceptionally bad, and therefore grossly negligent.

[The decision-maker] needed to consider, in line with the Code for Crown Prosecutors, whether the jury were more likely than not to find that the breach or breaches, if established on the evidence, were indeed gross, as that term has been interpreted in case law and assuming a proper direction… It was for [him] to make that assessment. That assessment was in the end a matter of impression. It did not require lengthy analysis or explanation…

This Court must recognise and respect the latitude to be afforded to the primary decision-maker, to whom the responsibility for the evaluative predictive judgment has been entrusted. Given that this is essentially a judgment call based on all the evidence and all the circumstances, and given the discipline described in the reasoned decision of assuming that the other Elements of gross negligence manslaughter are all provable, I am unable to find in the Impugned Decision any error of approach or legal inadequacy. This evaluative predictive conclusion was squarely within the responsibility and latitude afforded to the senior independent prosecutor who conducted the review. It follows that, even if I had decided issue 2 in the Claimant’s favour, I would have dismissed the claim for judicial review. The Decision-Maker has lawfully decided that the Evidential Stage is not met in relation to Element [vi].