Case No: CO/1224/2000
 
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT LIST
DIVISIONAL COURT
IN THE MATTER OF AN APPLICATION
FOR JUDICIAL REVIEW

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 21st December 2000

B e f o r e :

LORD JUSTICE WALLER

and 

SIR EDWIN JOWITT
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	THE QUEEN ON THE APPLICATION
OF ANDRE JOSEPH		Appellant	
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	THE DIRECTOR OF PUBLIC PROSECUTIONS
Mr Panikos Chattalou	Respondent
Intervening	

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(Transcript of the Handed Down Judgment of
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Mr Hugh Southey (Instructed by Deighton Guedalla, 30 Islington Green , London, N1 8DU)appeared for the Appellant
Mr John McGuinness (Instructed by CPS, London)appeared for the Respondent
Mr  Julian Knowles (appeared for the Intervener)
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Waller:
1.	The applicant Andre Joseph seeks to review the decision of the Director of Public Prosecutions dated 23 August 1999.  That decision was to discontinue a prosecution in relation to an assault which the applicant suggested took place on 24 June 1998.  The defendants in the prosecution were two brothers, Marios Chattalou (Marios) and Panikos Chattalou (Panikos). 
2.	Although the claim to relief seeks to remove the decisions and have them quashed by an order of certiori, Mr Hugh Southey who appeared for Mr Joseph accepts that the appropriate order, if he were successful, would be an order for mandamus requiring the DPP to review the first decision or conceivably a declaration that the decision to discontinue was unlawful.  
The factual background 
3.	On 24 June 1998 there was an incident in which Mr Joseph claimed that he was the victim of an assault by Panikos and Marios.  A statement was taken from Mr Joseph and Panikos and Marios were interviewed.  It would seem that Mr Joseph had previously worked for a company run by the Chattalou family but had left following a dispute.  Mr Joseph came to work at premises quite close to those of the Chattalou family.  Panikos thought that Mr Joseph had been responsible for gluing the locks on a motor car belonging to Marios.  Panikos came to the premises where the applicant was working and sought to get the applicant to come out and talk to him.  That was unsuccessful and Panikos at that stage left.  Panikos then came back to the premises and waited outside for some considerable period of time, during which time he picked up a pipe and banged the fire escape in order to attract Mr Joseph’s attention.  When Mr Joseph came out there was a fight between Panikos and Mr Joseph.  Panikos in his interview said that he put the pipe down before the fight commenced.  Panikos also claimed in his interview that Mr Joseph struck the first blow.  Panikos would appear to have suffered injuries during this incident.  Mr Joseph also suffered some injuries during this incident including a bite to his armpit.  Panikos then left the premises and went back to his own.  He then returned with Marios, Panikos again carrying some form of weapon.  When they arrived at the premises where Mr Joseph worked there was again a fight and during this fight Mr Joseph received more serious injuries, including serious damage to his mouth and jaw.  Marios admitted to the police that he kicked Mr Joseph in the mouth.  Mr Joseph’s injuries included “bruise over the upper palette, tenderness over the central teeth, loose teeth in the lower jaw, and one cracked tooth and two upper front teeth were chipped”.  
4.	The police attended and arrested Mr Joseph and Panikos.  Mr Joseph gave a brief statement at the time of arrest which was broadly consistent with the statement that he later gave to the police.  Panikos also gave a brief statement at the time of arrest that was broadly consistent with the account he was to give in interview.  He did however also state “this is not over, I’m going to have him later”.  
5.	Marios was subsequently arrested and admitted at the time of his arrest that he had “kicked a black bloke in the mouth”. 
6.	Panikos and Marios were interviewed on 24 June 1998 and those interviews are an important aspect of this application.  I will return to their contents later.  
7.	Mr Joseph, Panikos and Marios were released on bail to return to the police station on 12 August 1998.  Only Mr Joseph answered his bail.  On this occasion he was arrested for criminal damage to the Chattalou car.  He was then released on bail until October and requested to supply details of his medical records.  
8.	The police ultimately concluded that there was no evidence against Mr Joseph in relation to the criminal damage charge and therefore a bail cancellation notice was sent in September and the request for medical details was repeated.
9.	On 6 October 1998 Mr Joseph supplied to PC Happe details of the dentist and doctors who had treated him.  It was not however until 26 November 1998 that he supplied authority for the obtaining of that information from those persons.  Some delay thereafter took place which is not explained.  It seems Mr Joseph made a complaint against PC Happe for the way in which he was conducting the inquiry and that resulted in further efforts being made in March 1999 to move the matter on.  
10.	Ultimately, Marios and Panikos appeared on 6 July 1999 before Haringey Magistrates’ court charged with assault occasioning actual bodily harm.  At this time the CPS had not had time to review the evidence.  On 6 July the magistrates determined the mode of trial and they decided that the case was suitable for summary trial but Panikos and Marios elected trial by jury.  At this stage the CPS began to review the evidence in accordance with the Code for Crown Prosecutors.  They sought all the papers from the police which arrived under cover of a memorandum dated 28 July 1999.  
11.	The CPS also wished to have information about whether Marios and Panikos had sustained injuries; why the police had not charged Panikos and Marios until 3 June 1999; why Mr Joseph had originally been charged and finally, what a video, apparently relating to the incident on 24 June 1998, would show.  This video had been mentioned as an exhibit but was not evidence on which at that stage the police were to rely.  
12.	The inquiries revealed that Panikos had sustained injuries and that the delay had arisen because of absence of information on Mr Joseph’s medical evidence.  PC Happe also informed the CPS in relation to the video that “it showed two men wrestling and a crowd gathering”.  He stated that “it did not show who had instigated the fight”.  
13.	In any event, following a review by the CPS they took the view that it was clear to them that Marios and Panikos were claiming to have acted in self defence.  The CPS appreciated that it was for the prosecution to negative that defence.  The CPS were satisfied from the review of the papers that there was no independent evidence to negative it.  Thus as indicated by Catherine Kwan in her statement dated 8 August 2000 to which again I will return, the case was then discontinued.  
14.	
It is a matter of great regret that the applicant was not told of that decision immediately.  Indeed it was only after pressing the police for some period of time by telephone that Mr Joseph became aware on 10 January 2000 that these proceedings had been discontinued.  It was following being made aware that he commenced these proceedings for judicial review with urgency.  
The approach to judicial reviews of decisions regarding prosecution decisions
15.	The grounds for applying for judicial review in the context of decisions not to prosecute were identified by Kennedy LJ in R v Director of Public Prosecutions Ex p C [1995] 1 Crim.App.R. 136 who held at 141C-D that: 
“it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute: 
	(1) because of some unlawful policy (such as the 	hypothetical decision in Blackburn not to prosecute 	where the value of goods stolen was below £100); or 
	(2) because the Director of Public Prosecutions failed to 	act in accordance with her own settled policy as set out 	in the Code; or 
	(3) because the decision was perverse.  It was a decision 	at which no reasonable prosecutor could have arrived.” 
16.	Lord Bingham LCJ in R v DPP ex p Manning [2000] 3 WLR at 474F-H said this:- 
“In most cases the decision [as to whether to prosecute] will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury.  This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences.  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.  At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute if the test were too exacting an effective remedy would be denied.”
17.	We were also referred to the Code for Crown Prosecutors on which both sides relied.  That provides for a two stage test to be applied when reviewing proceedings or when making a decision as to whether to commence the same.  Firstly the CPS must apply the evidential test that requires it to be satisfied that there is a “realistic prospect of conviction”.  That is an objective test which requires the CPS to consider whether “a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged”.  Then, but only if the evidential test is satisfied, are the CPS required to consider the public interest test.  
18.	In June 1996 the CPS issued an explanatory memorandum for use in conjunction with the Code of Crown Prosecutors.  This states inter alia that:- 
“In summary, therefore, Crown Prosecutors should carefully weigh all the evidence and reach a view about whether a conviction is more likely than an acquittal.  Only where it is clear that there is no realistic prospect of a conviction - when set against the test - should the case be terminated..... When assessing the evidence, Crown Prosecutors should have regard to any lines of defence which are clearly available to, or have been indicated by, the accused. ... A further example would be where the papers indicate that the accused will seek to rely on self-defence.  In these circumstances, Crown Prosecutors will need to ensure the availability of rebuttal evidence before deciding whether or not to continue.  A mere assertion, however, on the part of the accused, or witnesses, which simply contradicts the prosecution evidence, should not in itself be sufficient to undermine the case to such an extent that the matter should not proceed”. 
19.	On what basis did the CPS reach their decision?  That is apparent from Miss Kwan’s witness statement.  I will quote paragraphs 15-17:- 
15.	I instance the following passages in their interviews which appear in the bundle of documents exhibited to the Application in this case.  Page references refer to that bundle:
[1] Marios Chattalou
Page 99: “Did you get involved in a fight between your brother and a black male earlier and you replied, I went to help my brother yes ... he offered me out.”
Page 100: “He offered me out.  I went to help my brother, his face was covered in blood, any normal brother would do so.” 
Ibid: “... my brother came in running, with his face all marked ... Then there was a black guy standing there and he goes, “What you want some as well”.  I don’t remember word for word, but in that way he said, do you want some or something, so then I went for him.  And then I don’t, I gave him a kick, but I don’t know if I kicked him in his mouth.” 
Page 101: “Well I went to help my brother ... because obviously the other fellow was bigger than my brother.” 
Ibid: “Well the guy came for my brother, it’s not that my brother went for him ...”.
Page 103: “Q.  Why did you kick him, why didn’t you just try to break it up?  A.  Because he hurt my brother, so I wanted to get even, I mean if you had a brother and you saw your brother get all bloodied up, I’m sure you would help, you would even help a stranger ...”. 
[2] Panikos Chattalou 
Page 95: “... so I walked up the stairs with the weapon and dropped, went towards him and dropped it on the floor, he struck me right there first.” 
Page 96: “We were scuffling on the floor and then I felt something on my head, he had some sort of weapon I don’t know.  I’ve got a bump on the top of my head.” 
Page 97: “I scuffled with him, stopped and then he picked up a bar and started waving it, some bar and then he started waving it at me there was people there stopping him.  So I went back to the factory picked up something went back, tell you the truth yea, and I went to hit him with it but I missed.  Threw it on the floor again, chased him and I hit him once ... I kicked him or something.” 
It appears clear to me that however ill-expressed, both defendants claimed that the Applicant was the assailant.  Marios Chattalou is saying that he struck the first blow.  Panikos Chattalou is saying that he went to assist his brother against a larger assailant who was threatening violence against Panikos as well. 
16.	In considering the issue of self defence, I considered the burden of proof.  The test which I applied was that set out in Archbold Paragraph 19-43:  “Where a defence of self-defence is raised, the burden of negativing it rests on the prosecution ...”.  I was satisfied from my review of the papers that the issue was raised and that there was no independent evidence to negative it.  The prosecution’s case would depend solely on the word of the Applicant.
17.	After reviewing the evidence with Mr Sinanan we agreed: 
[1]  That there was an absence of any independent witnesses or other corroborative evidence. 
[2]  That both Panikos Chattalou and the Applicant Andre Joseph had sustained injuries as a result of the incident on 24th June 1998. 
[3]  That it would be impossible to rebut the issue of self defence.
It followed, therefore that there was no realistic prospect of conviction and in accordance with the Code for Crown Prosecutors, I discontinued the case.  Copies of the notice of discontinuance were sent to the defendants’ solicitors, the Court and the police”.
Criticisms of the CPS reasoning 
20.	Mr Southey submitted that when reading the interviews of Marios and Panikos, or even confining consideration to the passages in the interviews set out above from Miss Kwan’s statement, self-defence is not in fact raised in respect of the part of the incident with which Marios was involved, or if it is, the evidence taken as a whole would be likely to negative self-defence without any necessity for independent evidence.  Mr Southey relied on Marios saying in answer to the question “why did you kick him?” “I wanted to get even.”  That is not the language of self-defence of himself or his brother.  To that must be added the following (a) an admission that Marios kicked Mr Joseph in the mouth; (b) some attempt in the interview by Marios to go back on that admission (see) p.113 where Marios said “... I gave him a kick but I don’t know if I kicked him in his mouth, like I said, I shouldn’t have said that, you took me by surprise.  I kicked him, yes but where it landed I don’t know.  Then I walked away.  That was it, just one kick.”; (c) Panikos’ statement that he saw someone kick Mr Joseph but did not recognise him (see p.110); (d) the fact that after the first incident Panikos left then came back on his own admission carrying a weapon together with Marios and (e) the first incident took place on the premises where Mr Joseph worked, in relation to which Panikos was the instigator who at one stage held a weapon.  
21.	Mr Southey suggested that Miss Kwan and the CPS have simply failed to analyse the evidence.  They, he submitted, did not consider the second incident separately from the first.  It was in the second incident that Mr Joseph received the serious injuries to his mouth and it was the second incident when two men, Marios and Panikos, came to the premises where Mr Joseph was.  Mr Southey thus submitted that no reasonable prosecutor would take the view that self-defence was raised by Marios and Panikos in relation to that incident or alternatively that no reasonable prosecutor would take the view that without independent evidence it would be impossible to rebut such a defence.  
22.	Mr Southey had a further point in which he suggested that the CPS should have examined and looked at the whole of the video rather than rely on a summary from PC Happe.  
Submissions from the DPP 
23.	Mr McGuinness, for the respondents, emphasised the experience, indeed the combined experience of those taking part in the decision, and emphasised how making such a judgment involved taking a broad view of how a case was likely to fare before a jury.  He criticised an analysis which involved looking at the second incident to see whether self-defence was raised as over elaborate.  He submitted that it was important to look at what happened vis a vis Mr Joseph, as one continuous incident.  He submitted that if the prosecution conceded as a possibility that the first incident was “six of one and half a dozen of the other” that would have weakened the whole case including that relating to the second incident.  
24.	On the second point Mr McGuinness submitted that there was no reason for the CPS not to rely on a summary of the video from PC Happe.  
Submission on behalf of Panikos 
25.	Mr Knowles, who represented Panikos, adopted Mr McGuinness’ submissions.  He added certain points of his own.  He relied on the fact for example that the incident was quite a common one of a type with which the CPS were readily familiar.  He relied on the fact that Mr Joseph seemed to treat the incident as one in his first statement to the police, in support of the proposition that it was unrealistic to divide what happened into two incidents.  He relied on it being PC Happe’s contemporary reaction that there was not a strong case against Panikos and Marios as supporting the view that the CPS ultimately took.  
Discussion 
26.	I accept that the court will not easily find a decision not to prosecute or a decision to discontinue a case bad in law.  I also bear in mind that the standard should not be set too high because it is the only means by which a citizen can seek redress.  
27.	It does not seem to me over elaborate to start with the question on the interviews of Marios and Panikos alone what view a jury would be likely to take as to how Mr Joseph suffered serious injury to his mouth.  The answer on the interviews of Mario and Panikos alone appears to be likely to be by a kick in the mouth by Marios, whose attitude was, on his own admission, “to get even”.  It also seems to me likely that a jury would take the view that that kick was made during an incident in which Marios came with his brother Panikos as aggressors to the premises where Mr Joseph worked.  Indeed Panikos on his own admission, was carrying a weapon.  The interviews alone would indicate that this incident did follow a previous incident.  However, even in relation to that incident, again on the interviews alone, Panikos was accepting that he came to the premises where Mr Joseph was and he carried a weapon at one stage that being a different weapon from the one he carried in the second incident.  
28.	It seems to me very difficult to suggest that self-defence was being raised at all by Marios so far as the delivery of the kick was concerned.  It seems to me very difficult to suggest that Panikos was raising self-defence in so far as the second incident was concerned.  It certainly seems to me that no reasonable prosecutor could take the view that in the absence of independent evidence it would be impossible to rebut such suggestion of self-defence as was being made.  
29.	So far as viewing the video was concerned, it seems to me that the CPS must be entitled to rely on summaries given by the police.  It will of course depend on how important the video evidence was, but again the CPS must be entitled to rely on the police giving an accurate appraisal of that importance.  
Conclusion 
30.	In my view an order should be made requiring the DPP to review their decision to discontinue the proceedings against Panikos and Marios.  One appreciates that this court does not have all the material before it and indeed Mr Southey did not suggest that this court should go further than make such an order.  So far as delay is concerned that will indeed be a matter to be taken into account in taking the decision which will now have to be taken by the DPP, but the delay is not such as to lead to the conclusion that no relief should be given to the applicant in this case.  Indeed Mr McGuinness accepted that if we came to the conclusion that the decision should be reconsidered then the appropriate order to make was for that review to take place.  Mr Knowles was not happy to accept that concession, but in my judgment it is the appropriate ruling to give in this case.  

Sir Edwin Jowitt: 
31.	I agree.