## Facts

- Peter Dennis brought judicial review proceedings following the death of his 17-year-old son on 8 April 2003 after he fell through a roof light/skylight while working on a refurbishment project at a retail park.
- The deceased was employed as a labourer by a small cladding subcontractor (“Company A”) and was in about his second week of work at the time of the accident.
- The work was carried out through a contracting chain: a main contractor (“Company B”) subcontracted steel erection to another contractor (“Company C”), which in turn subcontracted cladding work to Company A.
- The claimant alleged that the deceased was young and inexperienced, had little or no experience of roof work or working at height, and was not given adequate training, instruction, warnings, or protective measures to prevent access to (or contact with) fragile roof lights.
- An inquest took place in March 2005. After being directed on the law by the coroner, the jury returned a unanimous verdict of unlawful killing on the basis of gross negligence manslaughter.
- The Health and Safety Executive decided to bring health and safety prosecutions in relation to the incident. Those proceedings were stayed while the judicial review was pursued.
- By letter dated 17 March 2006, the Crown Prosecution Service (acting for the Director of Public Prosecutions, Gwent Area) decided not to prosecute the individual employer for gross negligence manslaughter, concluding that the evidential stage of the Code for Crown Prosecutors was not met.
- The claimant challenged that refusal, arguing that the CPS took too narrow a view of the evidence and the legal test for gross negligence manslaughter, and did not properly grapple with the inquest verdict and the seriousness of the alleged failures.

## Issues

1. Whether the CPS lawfully applied the Code for Crown Prosecutors (in particular, the “realistic prospect of conviction” test) when deciding there was insufficient evidence to prosecute the individual employer for gross negligence manslaughter.
2. Whether the CPS’s assessment involved an error of law or an irrational evaluation of the evidence and of the elements of gross negligence manslaughter (duty, breach, causation, and whether the negligence could properly be found “gross”).
3. Whether, in light of the inquest verdict and the alleged absence of basic instruction and safeguards for a young worker exposed to an obvious risk of death, the non-prosecution decision should be reconsidered.

## Decision

- The Administrative Court held that it was appropriate for the CPS to reconsider its decision not to prosecute the individual employer for gross negligence manslaughter.
- The court did not order that any prosecution be brought. The remedy was limited to requiring a lawful reconsideration by the CPS in light of the court’s judgment.
- The court accepted that judicial review of prosecutorial decisions is exceptional and subject to restraint, but found that the way the evidential assessment had been approached left a seriously arguable basis for concluding that a different decision might be reached if proper weight were given to the seriousness of the alleged failures to instruct and protect the deceased.
- In reaching that conclusion, the court treated the inquest verdict as non-binding but important background material which the CPS needed to engage with in a rational way when applying the evidential stage of its Code.

## Legal Principles

- A decision whether to prosecute is primarily for the CPS/DPP; judicial review is available only on public law grounds such as legal error, failure to apply the Code, taking account of irrelevant matters, ignoring relevant matters, or irrationality.
- The CPS must apply the Code for Crown Prosecutors in a lawful manner, including the evidential stage (realistic prospect of conviction) and, if satisfied, the public interest stage.
- Gross negligence manslaughter requires (i) a duty of care, (ii) breach, (iii) causation, and (iv) negligence so serious that it should be judged criminal; in workplace-death cases, the absence of training, instruction, warnings, and basic safety measures for a young or inexperienced worker may bear directly on “grossness.”
- An inquest verdict of unlawful killing does not determine criminal liability and does not bind the CPS, but it can be a significant part of the evidential background that a prosecutor must evaluate when applying the Code’s evidential test.
- Where a non-prosecution decision is flawed in its process or legal approach, the usual court response is to require reconsideration rather than to substitute the court’s own view on charging.

## Conclusion

In R (Dennis) v. Dir. of Pub. Prosecutions, the Administrative Court held that, although prosecutorial discretion attracts strong restraint on judicial review, the CPS’s refusal to prosecute the deceased’s individual employer for gross negligence manslaughter after a 17-year-old fell through a roof light should be reconsidered because there was a seriously arguable case that the evidential assessment under the Code for Crown Prosecutors failed to give proper weight to the seriousness of the alleged lack of instruction and safeguards and did not adequately engage with the inquest’s unlawful-killing verdict.


R (Dennis) v. Dir. of Pub. Prosecutions, [2006] EWHC 3211 (Admin) (Eng.)