Oliver, R (on the application of) v Director of Public Prosecution [2016] EWHC 1771 (Admin)

Case No CO/5630/2015

[2016] EWHC 1771 (Admin)

IN THE HIGH COURT OF JUSTICE

(ADMINISTRATIVE COURT)

Venue Royal Courts of Justice, Royal Courts of Justice, Strand, London, WC2A 2LL, (Case heard at Leeds Combined Court Centre)

Date 15/07/2016

Before

LORD JUSTICE DAVIS

MRS JUSTICE ANDREWS DBE

Between

THE QUEEN (on the application of EILEEN ALEXANDRA OLIVER)Claimant

DIRECTOR OF PUBLIC PROSECUTIONDefendant

Matthew Ryder QC and Jesse Nicholls (instructed by Ben Hoare Bell) for Claimant

Max Hill QC (instructed by The Crown Prosecution Service) for Defendant

Hearing Hearing date: 29 June 2016

Judgment

Introduction

[1]This case raises no point of law or principle at all. It has, however, a sensitivity of a particular kind. It relates to the death of a man, Stephen Berry, who was pronounced dead in the early hours of 30 March 2013 following his detention in custody at a police station. The immediate cause of death was cardiac arrest. It was subsequently decided on behalf of the defendant Director of Public Prosecutions ("DPP") not to prosecute any of the police custody officers detention officers at the police station at the relevant time. The initial decision was upheld after a request for a review made by members of Mr Berry's family under the Victim's Right to Review ("VRR") scheme. That decision was communicated by letter dated 19 August 2015.

[2]This decision is challenged by these judicial review proceedings, issued on 19 November 2015. The claim is now confined to a challenge to the decision of the DPP not to prosecute the custody sergeant, PS Garland, for unlawful act manslaughter on the basis of gross negligence. Leave on the papers was granted on this point by Leggatt J on 2 March 2016.

[3]The relief sought by the claim form is a declaration that the decision not to prosecute PS Garland was unlawful and an order requiring the DPP to consider the evidence and decision afresh.

[4]Before us the claimant, the mother of Stephen Berry, was represented by Mr Matthew Ryder QC leading Mr Jesse Nicholls. The DPP was represented by Mr Max Hill QC. I would pay tribute to the skill and care with which counsel advanced their submissions, both written and oral.

Legal principles

(a) Judicial Review

[5]It is convenient, before summarising the facts and respective arguments, to set out the relevant principles applicable to cases of this kind. They were not in dispute before us and so can be summarised briefly.

[6]A decision whether or not to prosecute in a prospective criminal case of this kind is entrusted to the DPP. Under the applicable Code for Crown Prosecutors, the prosecutor must be satisfied that a reasonable jury would be more likely than not, on the then available evidence, to convict. That is the evidential requirement. The second requirement is that the prosecutor must be satisfied that a prosecution is in the public interest. In the present case, we are only concerned with the decision on the part of the prosecutor that the evidential requirement was not met.

[7]It is important to emphasise that the decision is that of the prosecuting authority: not of the courts. Prosecutors have very considerable experience and expertise in this regard: the court will not lightly interfere with their decisions. In R v Director of Public Prosecutions, ex p. Manning

[2001] QB 330

, Lord Bingham, giving the judgment of the court, said at paragraph 23; “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.” That point has even greater force in view of the fact that, since that decision in ex p. Manning, there has been introduced the VRR Scheme giving a citizen a further right of challenge. In that context, it has been said that unless there was some unlawful policy or the DPP has failed to act in accordance with set policy or the decision was perverse, then with regard to a decision made on review in accordance with the VRR scheme it will be all the more difficult to mount a successful challenge: L v Director of Public Prosecution

[2013] EWHC 1752 (Admin)

[8]The current claim is therefore directed, under the present version of the VRR Scheme as reissued in 2014, to a second decision on behalf of the DPP which had reviewed afresh (and, in this case, come to the same conclusion as) a first decision.

[9]Nevertheless the context of such decisions remains very important. In the present case a very sad death has occurred after detention in custody. Article 2 considerations come into play. A criminal prosecution, moreover, sometimes can be an important part of the investigation into the death of an individual held in state custody, over and above any inquest or disciplinary proceedings. Such a context thus can require the courts not to show undue deference to the judgment of the decision maker; in an area, moreover, where the court has its own relevant knowledge of criminal law and procedure to bring to bear. A scrutiny of a rigour appropriate to such a case is therefore required.

(b) Gross negligence manslaughter

[10]Criminal trials involving what is called gross negligence manslaughter can often be of the greatest difficulty and sensitivity. The criminal law principles are now well established and are conveniently set out in the decision of the House of Lords in R vAdomako

[1995] 1 AC 171

. Put shortly, the defendant must have been in breach of a duty of care owed; the breach must have caused the death; and the breach must be such as, in the assessment of the jury, to amount to gross negligence. That assessment must be made having regard to the risk, objectively speaking, of death (and not, for example, simply personal injury) involved.

[11]Here too there was no dispute before us as to the applicable principles. A useful further exposition can be found in the case of Misra and Srivastava [2005] 1 CAR 21. Mistakes, even very serious mistakes, and errors of judgment, even very serious errors of judgment, will not of themselves suffice. A proper direction to the jury on the issue of gross negligence was held in that case to be that they should be sure that the conduct in question was something "truly exceptionally bad and which showed such indifference to an obviously serious risk to life and which showed such a departure from the standard to be expected” so as to constitute the very serious crime of manslaughter. The bar is thus set high: perhaps unsurprisingly so, given that such cases ordinarily involve no criminal intent.

[12]As to causation, the negligent conduct in question need not be the sole cause of death so long as it is proved to be a material cause. Further, in this regard it is also well-established that the prosecution is not required to demonstrate scientific or mathematical certainty. The facts have to be looked at as a whole. That a medical expert is not able to rule out a possibility other than the breach of duty as the cause of death is not of itself necessarily a bar to a jury being sure of guilt: see, among other cases, Dawson (1985) 81 CAR 150 at p. 154.

Facts

[13]I turn to the facts of the present case. In view of the criticisms made of the decision under challenge I should make clear that I have myself borne in mind the whole evidential scenario: the following is but a summary.

[14]At the time of his death Stephen Berry was 43 years old. He had a long history of alcohol dependency. He also had a history of depression and mental health issues. He had been both in hospital and before the courts on a number of occasions.

[15]On the afternoon of Thursday 28 March 2013 he was arrested for failure to answer his bail and to appear before the Gateshead Magistrates Court on 26 March 2013. The warrant was not backed for bail. He was taken to Washington police station at 17.08 pm. He had been drinking during the day. PS Garland was the custody officer at the time he was booked in. There were to be half-hourly checks on him in his cell. PS Garland knew from the booking-in that Mr Berry was an alcoholic.

[16]The courts were not sitting on Friday 29 March 2013 (Good Friday) and it was anticipated that Mr Berry would be taken to court on Saturday 30 March 2013. On Thursday evening he had been medically examined at 20.55. He was prescribed diazepam, appropriate to help him cope with the effects of alcohol withdrawal symptoms.

[17]During the daytime of Friday 29 March, Mr Berry was again medically examined. He was described as well, sober and co-operative, albeit somewhat shaky, and the diazepam prescription was maintained. At 14.30 PS Garland came back on duty as custody sergeant. The information on the custody record was available to him and he also was able to observe Mr Berry in his cell on CCTV. He had the assistance of a Detention Officer (DO).

[18]At 19.03 in the evening the DO was recorded as saying to PS Garland "He says someone is trying to tell me to kill myself". PS Garland took no action, saying:

"He is fucking crackers."

A little later Mr Berry is recorded as sweating profusely and demanding to be released. He also again referred to someone trying to kill him. At 19.26 PS Garland spoke to him, telling him that he was not going to hospital but was going to court the next day. Because of his condition and his sweating, PS Garland decided to move Mr Berry to a cooler cell. At 19.34 Mr Berry was captured on CCTV following PS Garland to another cell, seemingly walking well and talking normally.

[19]At 19.50 the DO reported that Mr Berry was saying that he could see men with handguns in his cell. PS Garland again stated:

“He’s fucking crackers”

. Shortly thereafter Mr Berry was caught on CCTV in his cell, sweating heavily, gesticulating and seeming unbalanced. At 20.25 it is recorded in the custody record that Mr Berry was banging on his door and saying he was hearing voices in his head and seeing men with guns in his cell. At that stage PS Garland instructed the DO to call the doctor (and he so told Mr Berry). This was done in PS Garland’s presence. The doctor was not during that call given any detail as to Mr Berry’s behaviour or symptoms.

[20]Thereafter Mr Berry was captured on CCTV in his cell removing items of clothing and talking to himself. At 21.00 the custody record notes him as being checked in his cell. At 21.05 the DO was heard talking to PS Garland, saying:

“He’s not right, him. It’s gonna be another hour for the doc. He’s getting worse. He’s breathing like, but it’s ultra fast ….”

. PS Garland and the DO then went to the cell. Mr Berry was allowed out to wash and have a drink of water. At 21.10 PS Garland instructed the DO to “keep an eye on him.” At 21.13, Mr Berry was spoken to by PS Garland and again allowed to get some water. He was noted as breathing normally; he was given replacement clothing for his sweat-soaked clothing.

[21]On occasions thereafter he was observed breathing heavily, talking incoherently and stumbling around in his cell.

[22]At 21.46 PS Garland spoke to the doctor on the phone. The doctor was asking if he could first visit another detainee held at another police station. PS Garland agreed. He did not on that occasion tell the doctor of Mr Berry’s behaviour or symptoms. It is clear enough that PS Garland did not at that time consider the case to be urgent. It also appears that PS Garland was viewing Mr Berry primarily as a mental health case.

[23]Thereafter Mr Berry’s behaviour and appearance continued in a broadly similar pattern. At around 22.30 a replacement Custody Sergeant and DO arrived as the night shift. The new DO was briefed that Mr Berry had been sweating and that a doctor had been called “hours ago”. The hand-over by PS Garland to the replacement Custody Sergeant, PS Prest, was at 22.50. It was brief. He described Mr Berry as “fucking lunatic. He’s had all sorts of meds. He’s been pretending there are people in his cell and what have you. I’ve called the doctor at 9 o’clock but he’s been to Shields….” PS Garland then went off duty. At 23.13 the new DO reported (after a cell visit) that Mr Berry was in “a right state”.

[24]The doctor arrived at 23.18. He spoke to PS Prest. There was some talk of "sectioning". The doctor did not visit Mr Berry immediately. The doctor went to the cell at 23.28. By this time, Mr Berry had slumped forward from a seated position: it has since been said that he may well have started on a cardiac arrest sometime before midnight. At 23.34 an ambulance was called. Mr Berry was reported as "breathing shallowly". At 23.43 Mr Berry lost signs of a pulse and the doctor administered chest compressions. At 23.59 an ambulance arrived. Mr Berry was certified dead at hospital at 00.57.

Medical Evidence

[25]In the aftermath of the death medical reports were obtained. Dr Cooper, an expert pathologist who conducted the post mortem on 30 March 2013, provided a detailed report dated 29 July 2013. His conclusion was that the effect on Mr Berry's heart was "as a result of the effects of alcohol withdrawal".

[26]A further report dated 24 June 2014 was provided by Dr Perry, a consultant cardiologist. He considered causation and the issue of "whether a more prompt action and admission to hospital acutely would have prevented his death". Dr Perry reviewed all the notes and CCTV evidence. He attributed the shaking, breathlessness and sweating to delirium tremens, with a recognised mortality rate ranging from 5% to 15%. Dr Perry towards the end of his report reported that in hospital cardiac arrest has a "much better success rate", with a survival to discharge of around 70% to 75%.

(e) and (f) of his report:

“12e. Had Mr Berry been considered to be suffering with serious alcohol withdrawal at an earlier stage in the evening and this was evident from around 19.40 he could have been either sent directly to hospital or an urgent medical assessment carried out and subsequently be sent to hospital. Had he been admitted to hospital a number of actions are likely to have been undertaken. He would have been given adequate sedation with further Diazepam and possibly other psychoactive drugs to reduce the effects of his alcohol withdrawal. This would have reduced a lot of the strain on his heart. He would have been observed and been in a significantly less anxious situation. I think his cardiac arrest would have been avoided. 12f. However, if he did have a continued level of anxiety despite the treatment offered when he sustained his cardiac arrest in hospital he would have had a much better chance of survival. He was an otherwise reasonably fit man with no significant underlying heart disease. I would have expected him to have survived his cardiac arrest as he would have had prompt treatment within the first two minutes of his collapse. I think to reap the benefits of being in hospital he would have had to be there by about 23.00 hours to allow time for assessment and the various treatments to act. Given the prompt ambulance response times I think there is a window of opportunity for him to have been sent to hospital for around three hours from 19.40 to 22.40. I think if he had been transferred to hospital within this timeframe he is highly likely to have survived this episode of alcohol withdrawal.”

Dr Perry's concluding paragraph stated:

“13c. I think if he had been in hospital he is highly likely to have survived and indeed is likely not to have sustained a cardiac arrest as his alcohol withdrawal syndrome would have been treated more aggressively.”

[27]There was a subsequent discussion (in part by telephone) between the experts and leading counsel then instructed on behalf of the DPP on 5 January 2015 at a consultation at counsel's chambers. In addition to Dr Cooper and Dr Perry also attending was Professor Gilvarry, a psychiatric expert with expertise in toxicology. Representatives of the Crown Prosecution Service were also in attendance. There were discussions as to whether any negligence was "gross" and on causation. It was stated by Dr Perry that nothing specifically indicated a heart problem prior to 22.55. As to the doctor being permitted (at 21.46) to go first to another call Professor Gilvarry expressed the view that "if PS Garland could say that the behaviour was no different to what he has seen before then I don't think it was unreasonable. He was dismissive but I don't think he understood alcohol withdrawal." Professor Gilvarry also stated that, although delirium tremens can lead to heart arrhythmia, “Mr Berry had so many other factors.”.

Duty of Care

[28]There is no dispute that the two custody sergeants owed a duty of care to Mr Berry.

[29]In such circumstances there is no need here to set out the detail of the background materials relevant to breach of duty. These consist primarily of the ACPO Guidance on the "Safer Detention and Handling of Persons in Police Custody"; Code C to the Police and Criminal Evidence Act 1984; and local training and local policies. PS Garland apparently had been on local custody officers' refresher training courses, which extended to alcohol withdrawal. Mr Ryder noted that the totality of such sources extended to guidance both for cases of physical illness and for cases of mental illness and also extended to alcohol withdrawal cases. Generally lack of consciousness, difficulty walking, confusion, hallucinations, abnormal breathing and so on are noted as indicia potentially requiring urgent medical intervention or transfer to hospital. Mr Ryder also drew attention to a previous incident in 2012 when Mr Berry had been promptly taken to hospital from the cells in a prison: following correct procedure, as he would say.

Independent Police Complaints Commission ("IPCC")

[30]Given the circumstances, the IPCC became involved. It issued its report on 12 December 2013. It is immensely detailed and thorough. It comprises 355 detailed paragraphs spread over 55 pages, accompanied by a minutely itemised chronology. It is not necessary - indeed not appropriate - to go through the details of that report here. Suffice it to say that its conclusion was that there were "serious failings" in respect of the detention and care of Mr Berry; and that (among other things) PS Garland - as also the replacement custody officer that night - had a case to answer, by reference to standards of professional behaviour, in respect of alleged gross misconduct. We were told that disciplinary proceedings have been initiated in this regard but, in common with the inquest, are adjourned pending judgment in these proceedings.

The course of the decision making on prosecution

[31]The matter was referred to the DPP for consideration of whether a prosecution of any persons should be commenced. The consideration extended not only to gross negligence but also to misfeasance in public office, and related to various individuals.

[32]A very full letter was sent to the Crown Prosecution Service by the claimant’s solicitors dated 23 October 2014. That set out, in the greatest detail, the criticisms of (among others) PS Garland and the alleged breaches of duty and misconduct. By lengthy decision letter dated 17 March 2015 from Mr Auty, a senior specialist prosecutor, the decision not to prosecute was communicated. It was accepted, with regard to PS Garland, that a breach of duty of care was made out. However, it was decided that the evidential requirement was not satisfied with regard either to causation or to gross negligence. It is common ground that the decision not to prosecute was also approved by properly briefed leading counsel who had been fully consulted on the matter.

[33]As was her right, the claimant then requested a review under the VRR Scheme. The request letter was dated 29 May 2015. It among other things adopted what had previously been said in the letter of 23 October 2014. The second letter went on to give very full details of the continuing complaints.

[34]The decision letter in response to this was dated 19 August 2015. That is the decision which is the subject of the current challenge.

[35]In accordance with the VRR scheme, the decision was made by a different senior specialist prosecutor (Ms Chitty), by way of “independent review” of the first decision. It was acknowledged that the matter was to be considered “afresh”, in accordance with the relevant policy Guidance.

[36]At the second page of this letter, this was said:

“I have read the evidence, including the statement and document bundles prepared by the IPCC, together with the IPCC Independent Investigation Final Report, the note of a conference between counsel and medical experts held of 5 January 2015, the advice of Adrian Waterman QC dated 10 January 2015 and the charging advice of Mark Auty dated 23 January 2015. In accordance with the assurance given by the Attorney General in his 2003 review I sought the advice of Max Hill QC to conduct his own independent review to assist me in making a decision in the case. I viewed the CCTV footage at the IPCC offices. I have read the detailed representations made on your behalf by your solicitor in his letters dated 29 May 2015 and 23 October 2014. I considered all of these representations very carefully and took account of them in coming to my decision.”

It was further made clear that the decision was made on the basis of that information. The summary of the law and facts set out in the first decision letter of 17 March 2015 was adopted. Ms Chitty went on to give her own reasons for her decision.

[37]She accepted breaches of duty of care on the part of the custody sergeants involved. As to PS Garland she said this:

“PS Garland’s failures were: (i) not ensuring that the doctor was given the full details of Stephen’s condition when he was first contacted at 20.25 hours; (ii) agreeing that the doctor could delay his visit at 21.46 hours in circumstances where it should have been clear that Stephen required medical attention; (iii) not giving the doctor any details of Stephen’s condition at that time so that the doctor could himself make a proper assessment as to relative priorities; and (iv) the poor quality of his handover to PS Prest.”

[38]The letter then turned to the issue of causation. As to that she said this:

“In my opinion, if PS Garland had ensured the doctor was properly briefed when he was first contacted at 20.25 hours; or if he had asked the doctor to attend immediately when he spoke to him at 21.46 hours, rather than agreeing to him delaying his visit; and/or if he had described the developing symptoms to the doctor at that time, it is likely that Stephen would have been taken to hospital prior to the start of his fatal cardiac arrest at 22.55 hours. According to Dr Perry, the cardiologist, if Stephen had received treatment in hospital he was highly likely to have survived and indeed, probably would not have suffered a cardiac arrest at all. He went on to say that if Stephen had suffered a cardiac arrest in hospital he would have had a 70-75% chance of survival. This means that there was a 20-25% (sic) chance of Stephen dying of a heart attack, even if he had been in hospital. I carefully considered whether this evidence would be enough for the Crown to prove that, “but for” the failures of PS Garland, Stephen would have survived. I conclude that the phrase “highly likely”, taken with the quoted percentage, lacked the degree of certainty to establish that Stephen would not have died if PS Garland had acted as he should have.”

[39]The letter then went on to consider the issue of gross negligence “because I was aware that this element of the offence was a matter of great concern to you and your family”. After citing from the relevant legal authorities (including what is said in Misra) the letter said this:

“When assessing whether the failures were so serious as to amount to a crime I considered the following matters to be relevant: (i) there was no proof that custody sergeants were trained to recognise the danger signs and symptoms of alcohol withdrawal and especially of Delirium Tremens (DT); (ii) the condition of DT would rarely be experienced by custody staff; (iii) Stephen’s previous history in custody, and PS Garland’s previous knowledge of him and his behaviour; (iv) Professor Gilvarry’s view that PS Garland not recognising Stephen’s condition and allowing the FME to go off on another call was not unreasonable; (v) PS Garland’s checks on, and interaction with, Stephen throughout the evening of 29 March which showed him reacting to concerns expressed by the DO, and reassessing the risk; (vi) on the occasions when PS Garland spoke to Stephen he was coherent and responsive; (vii) The handover from PS Garland was poor; (viii) PS Prest had only been on duty a relatively short time when Mr Berry suffered the fatal cardiac event after which recovery was not possible; a reasonable custody officer may not have done a risk assessment in this time.”

I assessed that none of the failures, taken alone or cumulatively, was so serious as to amount to gross negligence. Both officers made errors of judgement, maybe serious errors, but they did not fall so far below the standard of the reasonably competent and careful custody officer as to be truly, exceptionally bad showing such an indifference to an obviously serious risk to Stephen’s life as to amount to a criminal act or omission.” The letter, after dealing with other matters not now relevant to this case, concluded that this decision had itself been reviewed (and approved) at the highest level above Ms Chitty. Arguments of Counsel and Disposition

[40]I have had to set out the background in some detail because it explains the context of the decision letter under challenge and the nature of the present arguments.

[41]Mr Ryder’s skilfully presented arguments were very detailed. But the nub of his complaint was this: i) First, in assessing the issue of causation Ms Chitty had misunderstood the evidence of Dr Perry; and the mistake vitiated her conclusion on that issue. ii) Second, in assessing the issue of gross negligence Ms Chitty had focused on just four identified failures of PS Garland; whereas in truth, on the evidence, his failures were far more numerous, extensive and long-lasting than those she identified. The position had to be assessed on a cumulative basis. In consequence, the conclusion on gross negligence also, he submitted, was flawed: Ms Chitty had failed to take into account or give any weight to matters she had been required to take into account.

[42]It may thus be noted that this is not a challenge saying that the decision was perverse and that the only proper decision was one to prosecute. The relief sought by the claim form confirms that. Rather, the complaint is founded on what might be called more usual public law grounds of challenge (indeed of a kind corresponding to those which were raised, and found favour on the facts, in Manning itself). As an ancillary argument, however, Mr Ryder also said that the decision letter was flawed for want of sufficient reasons.

[43]The nub of Mr Hill’s argument to the contrary was to the effect that the claimant’s case is, on analysis, one of form and not of substance. All relevant materials had been carefully considered and taken into account by Mr Chitty – she says so in her letter and it was so. That she identified particular reasons, which can be taken as her assessment – properly open to her – of what were the most important features, did not mean that she had left out of account the other features of the case. Indeed, double counting was to be avoided. Mr Hill did, however, acknowledge that the expressed reasoning with regard to causation may indeed have been erroneous; but that did not, he submitted, affect the validity of the overall conclusion.

[44]As the argument at the hearing before us went on I increasingly inclined to the view that Mr Hill in essentials was right. That view has only been confirmed by subsequent reflection.

[45]Mr Ryder sought to present the breaches of duty on the part of PS Garland as thirteen in number: not the four identified in the decision letter. It may be that can be done; but it can be done really, in my opinion, as a matter of presentation in a way which ghosts the way in which particulars of negligence are commonly presented in Particulars of Claim in a civil claim in negligence. It is, for example, commonplace in such cases to see numerous alleged particulars of negligence itemised: when in truth the overriding claim is in substance (say) a failure to drive with due care and attention: and the particulars to an extent thus overlap.

[46]In my view, Mr Hill was right to caution against transferring a quantitative assertion into a qualitative assertion (in his phrase). Indeed, I found it rather disconcerting that Mr Ryder’s argument was so evidently based on the contents and structure of the IPCC report. That had, in the minutest detail, identified each individual occasion when PS Garland (and others) could be said, according to the IPCC, to be at fault: and a number of these identified occasions assuredly preceded (as well as post-dated) 20.25 when the doctor was first contacted. But it must be remembered that the IPCC report had its own function, style and purposes. As was suggested by the court to Mr Ryder in argument – and in fairness he ultimately accepted – it was not for the IPCC to set the agenda for this further and separate decision on the part of the DPP. It would, moreover, be most unfortunate if the drafting of such letters descended to a tick-box approach or had to track the entire content of any preceding IPCC report which (as in the present case) had been taken into account.

[47]I readily accept that in some contexts (including public law contexts) an appeal to substance over form cannot necessarily prevail. Sometimes, indeed, the form will be the substance. Mr Ryder was in this case of course entitled to focus on what the decision letter actually says. But in my view, with all respect, his argument does not properly reflect what the letter was designed to convey. Thus it may be, for example, that the letter stated “PS Garland’s failures were….” But it is not a sustainable conclusion to say that Ms Chitty was thereby confining herself solely to those four identified failures. Read in context, she was clearly saying what the principal failures, in her judgment, were. Mr Ryder is entitled to say that the word “principal” is not used. But it is plain that is the reality, if only because of the fact of what Ms Chitty had earlier identified as being taken into account (which included, among other things, the IPCC Report and bundles). Moreover, she had in terms indicated that she had had regard to the written representations made by the claimant’s solicitors: which representations, in substance, reflected Mr Ryder’s arguments before us. There is no reason whatsoever to reject that statement by Ms Chitty in the letter.

[48]Ms Chitty was, in my view, entitled to focus on the four identified failures. She was entitled to as a matter of her judgment: not least because, in terms of causation of death, those were properly considered to be critical times. Had the doctor been properly informed by PS Garland and had the doctor’s attendance not been deferred then the death would not, as it could be said, have occurred. The failure promptly to summons medical assistance at any time was properly assessed as the essence of the matter. That was an entirely legitimate approach for Ms Chitty to take. That she did not specifically set out other incidents antedating 20.25 (or indeed post dating 20.25) which evidenced potential further failure to react at individual moments does not invalidate her decision. That was the essence of Mr Hill's effective response, with which I agree.

[49]Precisely the same point can be made with regard to the formulation of the decision as to whether the failures were so serious as to amount to a crime. Ms Chitty was entitled to identify, as a matter of judgment, the particular factors to which she attached particular weight. The claimant may have preferred a different weight or emphasis to be given: but that does not suffice. It would not be a fair reading of the letter to say all other factors were overlooked.

[50]Mr Ryder did, rather shortly, also say that Ms Chitty had not been entitled to place reliance on what Professor Gilvarry had stated as to the reasonableness of PS Garland's conduct. In my view, Ms Chitty was perfectly entitled to have regard to that opinion: on any view it was a point, whether articulated by Professor Gilvarry or somebody else, which was properly taken into account.

[51]I should, however, say that I thought that there was force in Mr Ryder's criticism of the reasons given with regard to causation. The decision letter indicates that there was a 20-25% chance of Mr Berry dying of a heart attack even if he had been taken to hospital. But this wrongly conflates two strands of Dr Perry's evidence. Dr Perry had stated that if Mr Berry had been taken to hospital he would probably not have had a cardiac arrest at all. It was only if he had a cardiac arrest whilst in hospital that there was a 20 - 25% risk of mortality.

[52]Whilst a conclusion in this case on causation overall may not be straightforward, that reasoning, as Mr Hill conceded, was mistaken reasoning as expressed in the letter. Since Ms Chitty’s conclusion on causation was that the phrase "highly likely", when "taken with the quoted percentage", lacked the "degree of certainty" to establish causation (an approach which, I add, suffers the further potential defect of the failure to acknowledge the principles of cases such as Dawson) this particular ground of challenge was well based. But there is no reason whatsoever, in my judgment, for concluding that that particular flaw vitiated the reasoning as to the remaining elements.

[53]Mr Ryder did also submit that there was a want of reasoning expressed in the letter. This is not sustainable. The reasoning was (subject to the causation point) perfectly adequate. The claimant would have known from it why she failed. I add that Lord Bingham, at paragraph 42 of the judgment in Manning, had indicated that such a decision letter should be "reasonably brief" without distorting the true basis of the decision. It would, in my view, be lamentable if such decision letters had to condescend to the level of particularity and detail which, with respect, Mr Ryder's arguments at some stages seemed to be demanding.

[54]I add one further point. Ms Chitty in the course of these proceedings put in two witness statements. There was no objection to their admissibility. In them, she quotes at considerable length extracts from her review report which antedated her decision letter and on which she had drawn, it seems, in order to summarise her reasons in the letter itself. The purpose of these witness statements presumably was to confirm that she had at the time indeed considered the points since raised by Mr Ryder. At all events the statements demonstrated that she was indeed fully conversant with all the details of the case.

[55]I agree with Mr Ryder that, in the circumstances of this particular case, little regard should be had to these extracts. This court has not seen the full review report (even redacted to omit irrelevancies). In any event, when the claimant's solicitors were in correspondence raising queries on this and asking to see the whole of the review document, it was stated by the Crown Prosecution Service in response (opposing disclosure) that the review was not part of the material assessed by the Crown prosecution services in deciding not to prosecute. If that is so, it is hard to see its relevance. If, on the other hand, as was said in later correspondence, the review "was to assist both you and the court to understand fully the decision making process under challenge and with full and accurate explanation of the facts relevant to the specific issues the court has to decide", then the review document would seem in principle to be disclosable (subject to any necessary redaction). Mr Hill could in argument give no sensible explanation of the divergent approach adopted in correspondence by the Crown Prosecution Service in this point.

[56]In the present case, we rejected, essentially on grounds of lateness, an application by the claimant for disclosure of the full review document. This was made only on the first day of the hearing when no proper explanation for the delay was given and also when Mr Ryder was not able to assure us that an adjournment of the case may not thereby become necessary if such disclosure was given. However, and in any event, such parts of that review as were cited by Ms Chitty in her witness statements have had no material impact on my decision (and I should also note that Mr Hill, who has personally studied the entire review document, assured the court in any event, that there was nothing else in it which would or might assist the claim or undermine the defence). All I would say for the future is that if the Crown Prosecution Service wish to take a similar stance hereafter in relying on a preceding review document it should formulate an altogether more coherent stance than it has done in this case.

Conclusion

[57]In my view, this claim is not sustainable. The decision letter did not leave relevant matters out of account, did not take irrelevant matters into account and was sufficiently reasoned. The decision itself was not irrational or unlawful. I am of the view that this claim should be dismissed. The decision ultimately was one for the judgment of the DPP; and there is no proper basis for impugning it.

[58]I should also add that this court raised with the parties the question of s. 31(2A) of the Senior Courts Act 1981. We heard brief oral submissions, supplemented after the hearing by detailed written submissions on behalf of the claimant. Taking the view as I do that the asserted deficiencies here are, on analysis, of form rather than substance, and bearing in mind that a decision, rational in itself, not to prosecute was taken initially and then on review, by two different senior specialist prosecutors, approved by two Queens Counsel and endorsed further at the highest level within the DPP's office I would, (notwithstanding Mr Ryder's submissions) in any case have held against the claimant on this ground also. Moreover, there certainly is no "exceptional public interest" requiring a contrary conclusion.

[59]As to the further investigation of this matter, this decision, if Andrews J agrees with it, does not mean that there will be no further scrutiny of the apparent failings that occurred. On the contrary, there will be both the inquest and the disciplinary proceedings: which can now proceed.

Andrews J:

[60]For the reasons expressed by Davis LJ I agree that this claim should be dismissed.