Failure to prosecute over boy’s drowning in Welsh river ‘irrational’, court told | UK criminal justice

The decision not to prosecute a teenager accused of pushing a 13-year-old boy into a river was legally flawed and unreasonable or irrational, a court has heard.

Christopher Kapessa drowned after he was allegedly pushed into the River Cynon in south Wales by a 14-year-old boy in July 2019. In July 2020 the Crown Prosecution Service (CPS) said that although there was evidence to support a prosecution for manslaughter, it had decided it was not in the public interest to do so for what it described as a “foolish prank”.

At a judicial review hearing in central London on Thursday, brought by Christopher’s mother, Alina Joseph, against the director of public prosecutions (DPP) for the refusal to bring charges, her counsel, Michael Mansfield QC, said prosecutors had misunderstood the culpability of the teenager and given his youth “undue weight”.

He said the decision not to prosecute went against the CPS’s own guidance with respect to homicide cases, which states that “subject to sufficiency of evidence, a prosecution is almost certainly required”.

In written submissions, Mansfield described it as an “unreasonable or irrational decision because any proper and correct consideration of the evidence and information in this case could only properly conclude that the public interest requires prosecution for this fatal offence”.

He added: “Young age can never be a defence per se to an offence, and all the less so for a young killer, whose manslaughter robbed another young boy of his own life … The defendant has approached youthfulness on the part of an offender by an imbalanced approach that wrongly elevates youth above the loss of life, ie harm, from homicide. The proper approach would be to have those public interest factors tending against prosecution put to the court for consideration when sentence is passed.”

After the CPS announced its decision not to prosecute, Joseph claimed it was because her son was black and accused South Wales police and the CPS of institutional racism. While Mansfield did not repeat those allegations, he said it was imperative that public trust and confidence be maintained in the police and criminal justice system “for all persons including minority ethnic communities”.

A banner hung outside the Royal Courts of Justice, where the hearing took place, said: “Killed and then failed by state racism.” Mansfield told the court: “It has not been clarified or established why Christopher, who was black, was selected by the suspect.”

The barrister told the court that there was a “preponderance of evidence” that the teenager who pushed Christopher knew he could not swim but that even if he did not know, it would not prevent a manslaughter conviction.

He added: “There has been a failure to consider properly the aggravating factors in the conduct of the suspect. The selfish telling of lies, the failure to show remorse, and the failure to accept responsibility for his actions, are properly to be treated as aggravating factors of relevance and importance.”

In his written submissions Duncan Penny QC, for the DPP, said the CPS decision-maker in the case had acted with “scrupulous fairness”. He said: “She identified the key factors, attached the appropriate weight to those factors and then balanced those key factors that came down in favour of a prosecution against those that did not.”

Christopher’s case has been highlighted by Black Lives Matter protesters and 24 MPs signed an early day motion expressing alarm at the CPS decision not to prosecute.

Lord Justice Popplewell and Mr Justice Doves reserved judgment.

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