R (on the application of B) v Director Of Public Prosecutions (Defendant) & Equality And Human Rights Commission (Intervener) (2009) EWHC 106 (Admin)

This application, for judicial review, was bought by B against the Director of Public Prosecutions over a decision by the Criminal Prosecution Services to halt two separate but related prosecutions where B was the principle prosecution witness.

The Prosecutions where instigated following an attack on B during which he had lost part of an ear. B had been among a group of people known to him when an argument had broken out, a fight had ensued during which B had sustained a serious injury to his ear, in that part of it was bitten off. B required hospital treatment and, whilst receiving treatment in hospital, B had provided a false account to the police. He later identified the attacker and explained that he had given an inaccurate account previously as this man had been present during the police interview and had threaten retaliation against B and his family members were he to go to the police. He later also reported further intimidation by friends of the alleged attacker and a second prosecution was bought against those defendant.

During the course of the criminal proceedings the defendants’ solicitors obtained copies of B’s confidential medical (including hospital) records detailing a history of psychotic illness and although these were later returned, the High Court in these proceedings were critical of the way in which the issue of disclosure of B’s medical history was conducted. The Court appreciated that B’s medical history may have had relevance to B’s reliability as a witness, but stressed that it was important that the correct procedures for disclosure be followed by the Courts. In this instance the defence had obtained copies of B’s medical notes without the consent of B and without a Court order. Subsequent applications for disclosure were refused but, in one of the cases the judge suggested that the issue could be agreed by the parties and disclosure occur by joint letter of instruction to B’s treating consultant. This is in fact what occurred as opposed to the usual procedure of the Judge determining, from the medical notes, what was relevant to the case. The report confirmed that B suffered from a mental condition and that this might affect his perception and recollection of events such to call into question his reliability as a witness, in particular “his illness caused him to experience delusions (false beliefs that seemed real to him) and hallucinations (unreal experiences that seem real”.  Following receipt of this report the CPS, in respect of one set of proceedings, took advice from counsel and made the decision not to offer any evidence as they did not feel that B’s evidence could be relied on, given the medical history. As a result not guilty verdicts were recorded against the defendants. B had not had the opportunity, at that stage to be represented at a hearing in respect of whether his medical records should be disclosed to the Court.

B’s solicitor requested on three separate occasions the CPS provide full reasons for their decision not to proceed and when they had no response initiated judicial review proceedings on the basis that the CPS’s decision was not only premature and irrational, but also contravened an express duty in s.49A(1)(c) of the Disability Discrimination Act 1995 to promote equality of opportunity between disabled persons. Furthermore B contended that the decision effectively violated his rights under article 3 of the European Convention of Human Rights [‘ECHR’] as it afforded impunity to those who attacked individuals with mental health problems, unless there were independent witnesses. To this end B’s case was strengthened by a report from MIND detailing the frequency with which the CPS dropped prosecution where the only evidence would come from a victim with mental health difficulties.

The Court held that the decision to offer no evidence had involved a misapplication of the Code for Crown Prosecutors. The prosecutor should have asked himself whether B’s identification of the defendant as the attacker was more likely that not the result of a hallucination. This was the merits based approach that was required. The medical report alone was insufficient to answer that question in the affirmative.  R v DPP, ex p Manning (2001) considered. The Court confirmed that the decision was irrational on the basis that the decision, based as it was purely on the medical report, that a jury could not be asked to determine whether B was a credible witness and could offer a true account of the assault suggested either a misunderstanding of the content of the report or that the decision maker had applied a stereo-typed view of B as not credible on any matter because of his history of mental ill health. Therefore the decision not to prosecute was unlawful.

In respect of the prosecutors duty under s49A the Court held that this added no further duty than that which was expected under ordinary public law principles. The prosecutor’s duty in respect of s49A was to apply the Code. Had this been done and specifically the merits test applied correctly, a reasonable decision would have been reached ensuring equality as required under s49. The fact that this had not happened had caused humiliation to B, particularly the way in which proceedings had been conducted and the manner in which the prosecution had been abandoned. The Court determined that there was a breach of his rights under article 3 ECHR and provided damage in line with the Strasbourg awards commenting that the decision by the CPS  would have increased his feeling of vulnerability and gave him a sense that he was not afforded the protection of the law.

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