England and Wales High Court (Administrative Court) Decisions

Lewin v Crown Prosecution Service [2002] EWHC 1049 (Admin) (24th May, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th May 2002

Lord Justice Kennedy :

1. This is an application for Judicial Review of a decision of the Crown Prosecution Service not to prosecute Courtney Kayne for the manslaughter of Andrew John Lewin, who died in Spain on 29^th July 1997.

Background Facts.

2. Courtney Kayne was born on 26^th February 1979, and he was a school friend of the deceased, who was born on 9^th June 1979. On 17^th July 1997 Courtney Kayne flew to Spain with another school friend Andrew Goonatilaka and a week later, on 24^th July 1997, the deceased joined them. Andrew Goonatilaka had links with the family of Marc Burca, who owned the El Madronal Tennis Club at Marbella, and the boys stayed there. During the night of 28^th July 1997 the three boys were out with two Dutch girls with whom Courtney and Andrew Goonatilaka had become acquainted before the deceased arrived in Spain. All five then dropped Andrew Goonatilaka back at the Tennis Club accommodation. Courtney and the deceased then left the girls at their accommodation, after which they went to the Exotis Club. Courtney has consistently maintained that he did not drink alcohol all night because he was the driver of the rented Peugeot 106 motor car and most (but not all) of the other witnesses confirmed that assertion. By contrast the deceased drank a great deal. Not surprisingly there is uncertainty as to precisely what he drank, but the effect was that in the Exotis Club he was, it seems, at some stage slumped on the bar, and when the Club closed at 8 am he had to be helped by Courtney and others who had been at the Club into the passenger seat of the hire car. At that stage the deceased seems to have been barely conscious. Courtney drove the car back to the Tennis Club arriving at about 8.45 a.m.. The deceased was large and heavy and Courtney believed that he could not get him out of the car on his own, so he simply went off to bed, leaving the deceased in the car.
3. It was a very hot day. Andalucia records show that at 7 a.m. the temperature was 21.6 degrees centigrade, and at 1 p.m. it was 29.4 degrees centigrade. At about 1 p.m. Marc Burca noticed that the hazard warning lights on the Peugeot car were flashing, and he told Andrew Goonatilaka who went to investigate. He found the deceased still in the car and apparently dead. Emergency services were alerted, and Dr Giraldez, who arrived after about 20 minutes, confirmed the death.

Medical Investigations.

4. A Spanish forensic pathologist Dr Gorostiza visited the scene. His report indicates that he was told that the body, which he saw outside the car, had been found “slightly reclining over the driver’s seat”. Andrew Goonatilaka recalls it lying across the front seats. Dr Gorostiza saw no visible external signs of physical violence, and without the benefit of a necro-thermometer he estimated the time of death at between 6 and 8 hours before 3 p.m., which was I assume the time of his visit. On the following day, 30^th July 1997, he performed an autopsy, which confirmed that there was no significant sign of physical violence, and the blood-alcohol level of the deceased was found to be 200 milligrams per 100 millilitres. After the autopsy the doctor put the time of death at between 6 and 9 a.m.. He attributed death to obstruction of the thorax and abdomen (caused by the slouched position in which the deceased was sat) and alcohol poisoning. He said that the condition of the deceased when he was put in the car was such that a person even without medical knowledge should have considered taking him to a health centre for examination, and added “you should never leave a person in this state inside a car because of the consequences and complications that can occur”.
5. The body was flown to England and examined on 6^th August 1997 by Dr Fattah, a consultant pathologist at the Queen Elizabeth II Hospital, Welwyn Garden City. The brief unattributed clinical history in that doctor’s report is plainly inaccurate at least in parts, and is therefore of no assistance for present purposes, and in that examination nothing of significance emerged.
6. In January 1998 the deceased’s father, now the claimant, requested the Chief Constable of Hertfordshire to investigate the death of his son, and in March 1998 Dr Cary, a Home Office pathologist, pointed out that blood alcohol at a level equivalent to 200 milligrams per 100 millilitres is insufficient to account for death in a healthy individual. He raised the question of what other toxicological causes of death had been excluded, and suggested that the injuries found could be indicative of homicide, a possibility he expressly abandoned at a later stage when he saw the material from Spain.
7. In December 1998 Professor Forrest, a professor of Forensic Toxicology, offered some calculations as to the rate at which the body of the deceased might have disposed of alcohol if death took place at around 1 p.m., but that time of death was pure assumption, and the Professor pointed out that the effect of alcohol on individuals varies very considerably. As to the level of alcohol found in the body he said –

“While I would agree that, in general, blood alcohol concentrations in the region of 400 to 600 milligrams of alcohol per 100 millilitres of blood are normally regarded as lethal concentrations, deaths have certainly been reported at far lower concentrations.”

He then went on to deal with heat, saying –

“The consumption of large amounts of alcohol does lead to dehydration which will potentiate the adverse effects of exposure to high temperatures. Thus heat stroke may have played a part in the pathological processes leading to Mr Lewin’s death.”

Having made those observations the Professor concluded –

“Despite this, I would not dissent from Dr Gorostiza’s conclusion that what amounts to postural asphyxia while intoxicated with alcohol may have accounted for Mr Lewin’s death.”

8. In January 1999 Dr Cary gave his opinion. The first three paragraphs of that opinion are worth quoting in full. They read –

“(1) It appears that there was a thorough post mortem examination carried out in Spain and a full inquiry.

(2) I see no reason to dispute the findings of the Spanish pathologist namely that Mr Lewin died due to postural asphyxia while heavily intoxicated with alcohol. In this respect I agree entirely with all the comments made by Professor Forrest, including the additional possibility of an element of heat stroke contributing to death.

(3) The relatively low blood alcohol level at autopsy of 200 milligrams per 100 millilitres compared to theoretical calculations based on the deceased’s likely consumption probably arises because of a delay in the actual time of death from the time he was left slumped in the car. This could have been several hours during the course of which he would have continued to break down alcohol. Either throughout or towards the end of this period he became hypoxic due to the vulnerable position he was in i.e. slumped face downwards and the hypoxia, which is lack of oxygen in the blood, would have been the immediate factor precipitating his death.”

In the fourth paragraph he disposes of his own earlier suggestion that violence might be a significant factor.

9. The CPS then decided, in February 1999, not to prosecute, but the claimant pressed for re-consideration, and eventually, early in 2000, the matter was re-opened. Another toxicologist Dr Toseland, was consulted, and he agreed that the alcohol level of 200 milligrams per 100 millilitres “is not high enough to be a direct cause of death”. However he had experience of postural asphyxia following alcohol consumption, and shared the views of Professor Forrest as to the possible effect of exposure to heat. He then pointed out that an eminent Australian pathologist has reported that “alcohol present in the body may be lost by volatisation during the exposure to extreme heat”. Dr Toseland’s comment is that “theoretically the actual blood alcohol could have been higher than that determined.”
10. On 18^th December 2000 Dr Cary reported further and said –

“1. There is clearly evidence in this case that the deceased would have been exposed to high temperatures in the car during the period when death occurred. In view of this the cause of death should be recorded as (1a) acute alcohol intoxication and heat stroke. It is likely that postural asphyxia was the mode of death. ..

2. I can see no reliable method for determining precisely when death took place. ....”

He then repeated his stance in relation to injury, and concluded –

“Had he been extracted from the car around or soon after his arrival at the destination it is highly likely that he would have survived.”

11. At a conference with police officers and Mr Fields of the CPS held on 25^th May 2001 Dr Cary said that if it was put to him that the deceased was dead either when the car was parked or shortly thereafter then he would have to concede that that was a real possibility. Regret was expressed at the absence of some of the samples which had been destroyed in Spain before the English inquiry was re-opened.
12. On 5^th July 2001 Dr Cary was asked to comment on Marc Burca’s recollection that the body of the deceased when he went to the car was completely wet as if it had been showered fully clothed. Dr Cary pointed out that Marc Burca’s impression was subjective, but even if it was right the explanation could be sweat, and was not indicative of the deceased having survived for longer. There could also be moisture exuding from a dead body. That happens in body bags, and a small car could have had a similar effect.
13. On 24^th August 2001 the CPS sent to the claimant’s solicitor a letter setting out the decision not to prosecute which is now being challenged in these proceedings, together with the reasons for that decision. As it is that decision on which we must focus subsequent contributions from medical witnesses are unlikely to assist, but we have had placed before us two brief statements from Dr Cary dated 30^th April 2002 and 1^st May 2002 which makes some general comments which cannot properly be regarded as matters of expertise, as well as pointing out that rigor mortis is likely to come on more quickly in someone suffering from heat stroke at the time of death, and also in hot environmental conditions.

Other Investigations.

14. Of course the investigations were not confined to medical witnesses. Lay witnesses were seen, including in particular Courtney Kayne, Andrew Goonilataka, Marc Burca and those who had been at the Exotis Club with Courtney Kayne and the deceased. The general effect of their evidence is set out in the first part of this judgment, but two topics are worth further consideration, namely the position of the car windows and the presence or absence of shade.
15. Marc Burca said that the car windows were either closed or open a few centimetres, and that the car was in the shade of a tree.
16. Andrew Goonitilaka said in September 1997 that he did not notice if any windows were open, but in March 1998 and in July 2000 he said that as far as he could recall all the windows were closed.
17. Courtney Kayne in the first statement which he made in England on 26^th November 1997 said that he left the deceased leaning against the passenger door. His statement continued –

“I purposely left the vehicle in the shade and went to my room. I don’t know if the windows were open or closed.”

18. Mr Graeme Wilson, who appeared for the claimant before us, relied heavily on Courtney Kayne’s assertion that he purposely left the vehicle in the shade, submitting that it was indicative of Courtney being alive to the danger which might befall the deceased if the car were left in the sun. That I cannot accept. In hot weather most motorists prefer to leave their cars in the shade. The car is more comfortable when the motorist returns, even if no one stays in it in the meantime, but provision for comfort is quite different from foresight of danger. After we concluded the hearing we did, as requested, view the video taken by the claimant at the place where his son died. I derived only limited assistance from the film, but it did show that when the film was taken, sometime after the death, not much shade was available.
19. On 24^th November 1998 Courtney Kayne was interviewed under caution at the office of his solicitors, and on 21^st February 2001 he was re-interviewed at St Alban’s Police Station. At that time he had, it seems, been arrested on suspicion of manslaughter by gross negligence. I forebear to comment on the propriety of that arrest, but when shown photographs Courtney recalled that he parked the car close to the accommodation and that “it was a shaded area”. On that occasion Courtney made the point that when he went to bed Marc Burca might well have woken him to play tennis after a couple of hours.

Duty of CPS.

20. It is clear from R v DPP ex parte C [1995] 1 CR App R 136 that a decision not to prosecute is susceptible to judicial review, but, as was made clear in that case at 141 C to D, and again by Lord Bingham CJ in R v DPP ex parte Manning [2001] QB 330 at paragraph 23 –

“The power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney-General in his role as guardian of the public interest, and to no one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the Crown Prosecution Service, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. ....... in most cases the decision 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 strengths, 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 and if the test were too exacting an effective remedy would be denied.”

With that passage in mind I turn to look at the decision and reasons for the decision which are set out in the letter of 24^th August 2001.

CPS Decision.

21. The decision falls into two parts – cause of death, and duty of care. The only criticism which can sensibly be made of the conduct of Courtney Kayne is that in a hot climate at a time when the deceased was drunk and incapable of caring for himself Courtney Kayne caused the deceased to be loaded into a car and after a short drive left the deceased in that car with the windows shut or nearly shut, so that if the deceased remained undisturbed he was liable to be subjected to very considerable heat. But all this is irrelevant unless it can be shown that exposure to heat was an effective cause of death, and the reasoning of the CPS letter in relation to causation runs thus –

“(1) Death was caused by postural asphyxia whilst drunk (with the additional possibility of an element of heat stroke contributing to death);

(2) it cannot be established precisely when death occurred, and the uncontradicted Spanish expert evidence suggests that death had probably occurred by about 9.30 a.m.;

(3) it was therefore impossible to exclude the possibility that the deceased was dead when the car was parked, or soon thereafter, without the adverse effects of exposure to rising heat in a parked vehicle ever becoming an effective cause of death;

(4) accordingly it cannot be shown beyond reasonable doubt that Courtney Kayne’s failure to remove the deceased from the car contributed to his death.”

22. On the evidence which the letter writer Mr Fields had before him, and which I have summarised in the earlier part of this judgment, that conclusion in relation to the evidence as a whole, and that line of reasoning in relation to causation, seem to me to be faultless. I accept that not everything is fully explained. The switching on of the hazard warning lights remains unresolved. Mr Fields ascertained from the car manufacturers that the light switch was so positioned that it could have been knocked on accidentally by the deceased when his body moved, and Mr Fields also put forward in his letter the possibility that the lights may have been switched on before 1 p.m. by someone who came upon the body in the car and decided to take no other action. Maybe, but the lack of a clear and compelling explanation on this peripheral issue does not in any way undermine Mr Fields’ overall conclusion. As Mr Fields recognised, his conclusion in relation to causation made it unnecessary to consider whether if exposure to heat in the parked car could be shown to be an effective cause of death it would be possible to establish gross negligence sufficient to warrant a charge of manslaughter arising out of Courtney Kayne’s failure to get the deceased out of the car soon after it was parked. Because the issue had been explored Mr Fields did however express the CPS view that no breach of duty would be established, and I will therefore go on to consider whether in these proceedings that conclusion can be criticised.

Duty of Care and Breach?

23. In order to establish manslaughter by gross negligence the ordinary principles of the law of negligence apply in order to establish whether the suspect has been in breach of a duty of care to the person who has died in a way which was causative of death, but the breach of duty will not give rise to criminal liability unless it was so serious as to amount to gross negligence (see R v Adomako [1995] 1 AC 171). In R v Bateman [1925] 19 Cr App R 8, which was approved in Adomako, Lord Hewart CJ said at 11-12 –

“The facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.”

24. In my judgment when Courtney Kayne arranged for the deceased to be put into the car he did assume a degree of responsibility for the welfare of his passenger, which persisted so long as the vehicle was in motion, but which would normally have come to an end as soon as the vehicle was properly parked in a safe place at the end of its journey. It could only persist in a way which would be relevant to the offence of manslaughter if a reasonable person would have foreseen that by leaving the deceased in the vehicle parked in that position he was being exposed to the risk “not merely of injury or even of serious injury but of death” (R v Singh (Gurphal) [1999] CLR 582). In this case at the time when it was decided not to prosecute there was, as it seems to me, no realistic possibility of demonstrating beyond reasonable doubt that a reasonable person in the position of Courtney Kayne would have foreseen the risk of death. The young man who was left in the unlocked car was an adult, not a small child or a dog. Anyone leaving him and knowing that his comatosed state was due to an excessive intake of alcohol would probably have envisaged that in due course he would rouse himself and make his way to bed. The idea that he might suffer significant injury, as opposed to discomfort, as a result of being over heated in the car would be unlikely to cross the mind of anyone not medically trained.

Conclusion.

25. I therefore conclude that the CPS was entitled to decide not to prosecute for both of the reasons given in the letter of 24^th August 2001. Indeed I cannot envisage how the decision could properly have been otherwise. In the Judicial Review claim form the grounds on which relief is sought make other allegations in addition to irrationality – for example that the CPS failed to comply with the Code for Crown Prosecutors, that the decision not to prosecute was premature, and that it was tainted by the earlier decision not to prosecute. Mr Wilson did not seek to press those alternative grounds in his oral submissions, and in my judgment he was right not to do so because there is no substance in any of them. I would therefore dismiss the application for Judicial Review with costs, which I would assess as claimed in the sum of £12, 342.02.

Mrs Justice Hallett:

26. I agree