The decision to discontinue a prosecution for wounding with intent and witness intimidation, on the basis that the victim's mental illness meant he could not be placed before the jury as a credible witness, was irrational on the facts; s49A Disability Discrimination Act 1995 added nothing to the ordinary position under public law principles; there had been a breach the positive obligation under Article 3 (which includes the duty to provide a legal system for bringing to justice those who commit serious acts of violence against others) and £8000 was awarded in compensation.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
JUDICIAL REVIEW — Director of Public Prosecutions — Decision not to prosecute — Victim of serious assault suffering from mental health condition — Medical report concluding that condition might affect victim’s perception and recollection of events — Prosecution deciding not to put victim before jury and offering no evidence — Whether decision irrational — Whether violation of victim’s Convention rights — Human Rights Act 1998, Sch 1, Pt I, art 3
The decision to abandon a prosecution because of the victim’s mental instability involved a misapplication of the Code for Crown Prosecutors, was irrational and was a violation of the victim’s rights under art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Queen’s Bench Divisional Court so held when allowing the claim for judicial review brought by the claimant, B, of a decision by the Crown Prosecution Service, for which the defendant, the Director of Public Prosecutions, was responsible, to discontinue a prosecution brought against the interested party, HR, charged with wounding with intent to cause grievous bodily harm and witness intimidation. The grounds for the claim were that the decision was unlawful in that it was, inter alia, irrational and in violation of B’s rights under art 3 of the Convention. The Equality and Human Rights Commission was given leave to intervene by way of written submissions.
TOULSON LJ said that B, who had suffered a serious assault in which part of his ear was bitten off, had given a coherent account of events at the time identifying HR as the ear-biter. B had a history of psychotic illness in which he at times held paranoid beliefs about certain people, and also suffered hallucinations, although there was no evidence of this in relation to HR. On the basis of a medical report concluding that B suffered from a mental condition which might affect his perception and recollection of events, counsel for the Crown Prosecution Service formed the view, without further investigation, that this precluded him from putting B before the jury as a reliable witness in the absence of any other evidence to confirm that HR was the ear-biter, and offered no evidence. In his Lordship’s view, para 5 of the Code for Crown Prosecutors, issued by the Director of Public Prosecutions under s10 of the Prosecution of Offences Act 1985, which referred to the “realistic prospect of conviction test”, meant that a prosecutor should imagine himself to be the fact-finder and to ask himself whether, on balance, the evidence was sufficient to merit a conviction, taking into account what he knew about the defence case. Had the prosecutor applied that “merits-based” approach, asking himself whether he thought it more likely than not that B’s identification of HR as the ear-biter was the result of an hallucination, he could not have answered that question in the affirmative merely on the strength of the medical report. Since it did not follow from the medical report that B could not be put forward as a credible witness when describing the assault, the prosecutor’s conclusion was irrational, suggesting either a misreading of the report or an unfounded stereotyping of B as someone who was not to be regarded as credible on any matter because of his history of mental problems. The logical implication of such reasoning was to place anyone who suffered from a similar mental illness in the position of one who might be assaulted with impunity so long as there was no independent evidence of the assailant’s guilt. It was established law that art 3 of the Convention carried a positive obligation on a state to provide protection through its legal system against a person suffering ill-treatment at the hands of others. Looking at the proceedings as a whole, the nature and manner of their abandonment increased B’s sense of vulnerability and of being beyond the protection of the law. That was not reasonably defensible and therefore a violation of B’s art 3 rights.
R (B) v Director of Public Prosecutions (Equality and Human Rights Commission intervening)  EWHC 106 (Admin);  WLR (D) 25
QBD: Toulson LJ, Forbes J: 27 January 2009
FORBES J agreed.
Appearances: Paul Bowen and Alison Macdonald (Bindman & Partners) for the claimant; David Perry QC and Clair Dobbin (Treasury Solicitor) for the defendant; the interested party did not appear and was not represented.
Reported by: Jeanette Burn, barrister