“…it is clearly a pursuit in Dalston Lane as the moped turns into Amhurst Road. At this point, the rider cuts the junction and the Pillion clearly looks back at the following Police car which has its Blue lights illuminated. That would be a clear indication to a Subject that the police were requesting them to stop, especially evident as they remain behind them. From this point on Initial Phase Pursuit is instigated. … From the several camera views on Amhurst Road, the driving of the police vehicle is in no way outside of any exemptions but I would not expect a pursuing vehicle of such a vulnerable moped to be as close as PC Summerson chose to be. In being close, it not only puts pressure on the moped driver but it reduces the time to react from the Police driver, should the moped take evasive turn or even fall off. As the pursuit turns out of Amhurst Road into Stoke Newington Road, the patrol car can clearly be seen close to the moped, indeed they both pull out from the minor to major road with little view and a small white van can be seen having to break. The moped then enters a bus lane and has to come past a white van which is unloading within it. A Blue car also narrows the route for the moped at this point and the moped takes to the pavement, in full view of the Police vehicle. The Police vehicle is close behind the blue vehicle at this point and it could be viewed as a ‘Quartering’ maneuver (sic). This is where the police car influences the direction of a pursued driver by use of a dominant road position. This is a Tactical Phase Maneuver (sic) only. The moped takes to the pavement momentarily here and risk would be deemed high at that point but no Dynamic Risk Assessment (DRA) change is relayed to the Control room operator. This is where both patrol cars are clearly seen together in Pursuit. As the moped returns to the carriageway the BMW is still very close behind. This can be as a result of ‘Red mist’ from a police driver and that is something that in Pursuits can also be known as ‘Target Focus’. In effect the driver in intent on keeping the Subject in sight and not let them get away. This can then lead to something known as ‘mirroring’ where the Police driver copies every road position and maneuver (sic) that the Subject does. This type of behaviour is suggesting that decision making by the police driver may be affected. The pursuit continues up into Stoke Newington High Street and Stamford Hill in the same manner until it reaches the junction with Clapton Common. At this point the Moped takes a line to the right of the central reservation and is going down the offside of a dual carriageway against oncoming traffic towards a major junction. In pursuit training scenarios this would be given to highlight immediate risk, it should be an abort of the pursuit and advice is for the Police vehicles to stay on the correct side of the road with minimal blue lights so as not to attract attention from road users who may be in the path of the subject vehicle. There is a motorcycle riding towards the pursuit at this point and also a van and a car which can be seen in the ‘Box junction’ having to stop. The turn itself is a pedestrian controlled traffic light junction and there are several pedestrians here. The blue vehicle referred to by PC Summerson in his statement holds them up and the moped goes through. No time would have been lost here if the patrol car took the legitimate route through this busy junction and that is what I believe would have been the correct decision. This action by the Police driver would be typical of ‘Mirroring’ as I mentioned previously. The camera footage of the actual collision shows to me that the moped at this point made a wrong decision to take to the nearside of traffic, especially the white van as the driver of that vehicle reacts to the Police car which is overtaking on the natural and legitimate side of the van. As the van pulls into the nearside, the moped appears to clip the curb and the catastrophic dismount was the result. The actual crash was down to driver error in my view at that point …”
“The manner of Mr Johnson’s riding prior to police involvement was reckless and showed a total disregard for the welfare of himself and other road users.”
“Mr Johnson placed himself in a vulnerable position by overtaking vehicles on their nearside where there was little margin for error should something unexpected happen. … The collision could have been avoided had Mr Johnson simply stopped for police, which he had ample opportunity to do in a safe manner.”
“The function of the CPS is not to decide whether a person is guilty of a criminal offence, but to make fair, independent and objective assessments about whether, according to the Code, it is appropriate to present charges for the criminal court to consider.”
“Causing death by dangerous driving/dangerous driving andcausing death by careless driving I firstly considered the standards of the officer’s driving. In my view the relevant aspects of his driving can be summarised as follows: • At all times the BMW made use of blue lights and sirens. • Driving at speed close to the moped in front. • Driving at excess speed. The BMW reached a speed of 55mph. • Passing through an amber light. • Driving on an unused central part of the road and driving the wrong side of a central refuge causing an oncoming car to move to the nearside. • Driving on the offside of a central reservation. • Driving through a pedestrian crossing the wrong way with a green light for pedestrians. • Driving that straddles the central line in the road. • Driving in the opposite lane. Althoughsection 87 of the Road Traffic Regulation Act 1984 and regulation 36 of theTraffic Signs Regulations 2002 give police vehicles, being used for police purposes, immunity from prosecution for speeding and red lights, they do not give an officer licence to drive dangerously or carelessly. In my opinion it is highly likely that a reasonable jury, properly directed, would conclude that aspects of the officer’s driving did amount to dangerous driving. Specifically, the driving on the wrong side of the central reservation and through a pedestrian crossing the wrong way with a green light for pedestrians. I believe that this driving could be considered to fall far below what would be expected of a competent and careful driver and that it would be obvious that there was a danger of injury to a person or of serious damage. As far as the other aspects of the driving are concerned I am not satisfied that the threshold for dangerous driving is met. Although the speed was at times excessive, the hazards to other road users and pedestrians did not in my view cause an obvious danger. At all times he was using his blue lights and sirens as a warning. Although not determinative, the evidence from the bystander witnesses does not support a view that the driving as a whole was dangerous. I am also satisfied that the totality of the driving of the officer fell below the standard expected of a competent and careful driver. In my opinion, a competent and careful driver would not have driven in the manner set out above (speeding, wrong side of central refuge/reservation, tailgating etc …) and consequently his driving did not reach the required standard….”
“The Guidance makes it clear that the starting point is that it is very unlikely to be appropriate to proceed with a prosecution on public interest grounds if a police officer … commits a driving offence while responding to an emergency call. Although the officer was not answering an ‘emergency call’ he was trying to prevent and detect serious crime, in accordance with the legal duty on the police to prevent crime. Although I concluded that his driving, or at least aspects of it, could be considered dangerous I do not consider that his culpability is high.”
“In my assessment the dangerous driving took place over a short period in the context of a pursuit. It is well documented that moped related crime is prevalent and high profile. The public expect such suspects to be pursued by the police and I believe that the officer’s actions and the manner of his driving in pursuing the moped were justified.”
“… following a careful and fully independent consideration of all the available evidence, I have concluded that the decision not to prosecute this case was in fact correct. In other words, I do not consider the original decision to be wrong. This means that the police Officers involved in the incident will not be charged with any criminal offences. … Reasons Summary of the Facts Shortly before midday on9th February 2016 , Lewis was riding a moped with his friend [LK] as pillion passenger. They were suspected to have been responsible for a serious of snatch thefts, involving the use of a moped. Over a period of approximately 3 minutes the moped was pursued in and around Stoke Newington by a marked police BMW driven by Officer A. There was a shorter period of time when Officer B appeared to join the pursuit behind Officer A’s vehicle. The pursuit came to a tragic conclusion on Clapton Common when Lewis attempted to undertake a box-van but lost control of his vehicle. The BMW was overtaking the box-van when the van moved towards the side to make way for the police car. The moped came into contact with the curb and the van before Lewis lost control and collided with a traffic light post. Both Lewis and [LK] fell from the moped and suffered serious injuries in a collision with a traffic light post. Lewis sadly died as a result of the injuries he sustained. Officer B’s vehicle was not present when the collision occurred. Full Code Test Officer A – The Evidential Test I am satisfied that there is sufficient evidence to prove that the manoeuvre of Officer A was one of the causes of the sequence of events which resulted in the collision. However, the evidence does not support the proposition that Officer A was driving dangerously at that time nor that Lewis drove the moped in the manner he did as a result of pressure brought about by the pursuit. CCTV evidence reveals that Lewis drove dangerously before the pursuit commenced and without any pressure from other road users. The manner of Lewis’ driving continued in a similar fashion during the pursuit. Apart from an isolated manoeuvre (see below), I am not satisfied that there is a realistic prospect of conviction for any offences of dangerous driving by Officer A during the earlier stages of the pursuit. A driver is permitted to take advantage of precedence afford by other road users and with emergency warning lights on, the opportunity to do so is more likely to arise. In such circumstances, driving on the wrong side of the road will not necessarily amount to a standard of driving that falls far below that of a careful and competent driver. Further, I do not consider there to be a realistic prospect of conviction for dangerous driving based upon the BMW being driven too close behind the moped. The overall pursuit, prior to the point in time when the vehicles reached Clapton Common, was not, in my view, dangerous. However, at one point during the pursuit, Officer A drove close behind the scooter and ended up bearing down on a traffic island and, at the last moment, swerved onto the wrong side of a busy road, causing a silver Mercedes to swerve out of its path. The driving at this point does not present as measured or particularly controlled and, in my view, was dangerous. However, none of the earlier driving had any bearing on what happened at Clapton Common. At the time that the moped commenced its undertaking manoeuvre, the BMW was overtaking, several car lengths behind, on the legitimate, right hand side of the road. While oncoming vehicles afforded precedence to Officer A’s vehicle they were not forced to do so by the manner of his driving. Accordingly, there is not a realistic prospect of proving that Officer A’s standard of driving fell far below that of a competent and careful driver. It cannot therefore be proved that the BMW was driven dangerously in the critical moments leading up to the collision. It is unlikely that a jury would conclude that Officer A’s overtaking manoeuvre in the prevailing circumstances amounted to dangerous driving. The police car cannot be said to have been too close to the scooter at the crucial time, and had moved to the far right of the carriageway when overtaking, which gave sufficient space for the other vehicles. This precludes the prosecution either for causing the death of Lewis by dangerous driving, or causing serious injury to [LK] by dangerous driving. I have concluded that the fact PC Summerson was not an accredited TPAC driver and that the pursuit was not authorised (or in accordance with police operating practice) is irrelevant to the consideration as to whether the driving was itself dangerous. The dangerousness or otherwise of the driving has to be determined by reference to the driving itself. A dangerous manoeuvre undertaken by a TPAC driver during unauthorised pursuit is still dangerous. Similarly, a manoeuvre that is not dangerous is not rendered so by the fact that the pursuit is undertaken by an unaccredited driver during an unauthorised pursuit. Carrying out an overtaking manoeuvre which resulted in the van moving into the path of the scooter, may provide some evidence of carelessness; which is driving below the standard of a reasonably competent and prudent driver. However, on balance I do not believe it likely that a jury would be satisfied beyond a reasonable doubt that the manoeuvre amounted to careless driving. This is because it was not necessary for the van driver to move and the decision was made without pressure from the police car. I cannot therefore conclude that the original decision was wrong about this. …”
“9. It must, of course, be for the Crown Prosecution Service to decide upon the type of review of the decision that is made. Some cases will call for very detailed review; others can be dealt with in short order. What is important to the future conduct of such cases is to recognise that the CPS now has this procedure in place. It has this consequence. It is highly likely that where a review has taken place, and the review can be seen to be careful and thorough, proceedings for judicial review to challenge the decision will be the more difficult to advance. … … 12. … if there has been a review in accordance with this procedure, then, it seems to me, that the prospect of success will, as I have said, be very small.”
“45. An authoritative statement of this principle, and its application to cases of this type, was given by Lord Bingham of Cornhill in R (Corner House Research) v SFO[2009] 1 AC 756 in the following passages: ‘30. It is common ground in these proceedings that the Director is a public official appointed by the Crown but independent of it. He is entrusted by Parliament with discretionary powers to investigate suspected offences which reasonably appear to him to involve serious or complex fraud and to prosecute in such cases. These are powers given to him by Parliament as head of an independent, professional service who is subject only to the superintendence of the Attorney General. There is an obvious analogy with the position of the Director of Public Prosecutions. It is accepted that the decisions of the Director are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator: … ‘30. It is common ground in these proceedings that the Director is a public official appointed by the Crown but independent of it. He is entrusted by Parliament with discretionary powers to investigate suspected offences which reasonably appear to him to involve serious or complex fraud and to prosecute in such cases. These are powers given to him by Parliament as head of an independent, professional service who is subject only to the superintendence of the Attorney General. There is an obvious analogy with the position of the Director of Public Prosecutions. It is accepted that the decisions of the Director are not immune from review by the courts, but authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator: … 31. The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the Officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend. Secondly, the courts have recognised … “the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits.”
“…the Officer recognises the Court’s criticisms of the brevity of the decision letter, albeit such brevity is not fatal provided the letter evidences the underlying rational decision-making process; …”
“While [the reviewing lawyer] might have provided a somewhat less succinct account of his analysis, there is no ground whatsoever for the Court to conclude that [the reviewing lawyer]’s decision-making was irrational.”
“…none of the earlier driving had any bearing on what happened at Clapton Common.”
“I am satisfied that there is sufficient evidence to prove that the manoeuvre of Officer A was one of the causes of the sequence of events which resulted in the collision.”
“The officer was responding to serious offending which was, and continues to, cause the pubic grave concern. The alleged offences had just occurred and there was a clear risk that such offending may well be repeated in the near future if not prevented.”