Mother of boy who drowned loses High Court fight over decision not to prosecute

The mother of a 13-year-old boy who died after allegedly being pushed into a river has had a High Court challenge to a decision not to prosecute a teenager accused of being responsible dismissed by judges.

Christopher Kapessa was allegedly pushed into the River Cynon near Fernhill, Rhondda Cynon Taff, by a 14-year-old boy in July 2019, a High Court hearing has been told.

The Crown Prosecution Service (CPS) decided that a prosecution was not in the public interest.

Christopher’s mother, Alina Joseph, who is from the Cynon Valley, took High Court action against the Director of Public Prosecutions Max Hill, who heads the CPS.

Two judges ruled against her on Monday.

Lord Justice Popplewell and Mr Justice Dove had considered argument at a hearing in London earlier this month.

Barrister Michael Mansfield QC, who led Ms Joseph’s legal team, argued the decision not to prosecute the “suspect”, who is now 17, was “unreasonable or irrational”.

Lawyers representing the CPS had argued that Ms Joseph’s challenge should be dismissed.

Lord Justice Popplewell said in a written ruling that principal policy guidance for prosecutorial decisions was contained in a Code For Crown Prosecutors issued by the Director of Public Prosecutions.

He also said “Homicide Guidance” provided that the “public interest” in prosecuting homicide cases was high as the harm caused would “inevitably be of the utmost seriousness….”

Mr Mansfield had said his “main submission” was that there had been a “failure to have regard to and apply the Homicide Guidance”.

Lord Justice Popplewell disagreed and suggested that Mr Mansfield’s argument misconstrued policy guidance.

He said the “Homicide Guidance” was  addressed to “homicides generally”.

But he said the CPS also had to have regard to “Youth Offender Guidance”.

He said “Youth Offender Guidance” involved “important factors” which weighed against a prosecution of young persons.

Mr Mansfield had argued that the CPS decision was “unlawful”.

Ms Joseph wanted to “understand fully what had happened to her son” and to “see justice done according to that truth”, he said.

Judges heard that a number of youngsters were at the scene and were told that Christopher had expressed concern about his lack of swimming ability.

Mr Mansfield said the “suspect” had “pushed” Christopher “deliberately” and Christopher had been killed as a result.

He said Christopher and his family had been “relatively new” to the area and were a black family living in a predominantly white community.

Duncan Penny QC, who led the CPS legal team, had told judges that the decision at the centre of the case had been taken by Moira MacDaid, a specialist prosecutor.

Ms MacDaid had concluded, after a review, that the original decision not to charge the suspect with manslaughter was correct, he said.

Mr Penny said Ms MacDaid had considered all relevant evidence with “scrupulous fairness”.

He said her decision that a public interest test “was not met” was neither irrational nor “undermined by any error of law”.

In the ruling, Lord Justice Popplewell said Christopher had lived with his mother and six brothers and sisters.

The youngster had “a wide group of friends and was popular”, the judge said.

“On the day in question, some 16 of these friends – all aged 13 or 14 – were playing in and around an area known as the Red Bridge over the Cynon river,” said Lord Justice Popplewell.

“Some of the boys were jumping into the river; others in the group were sitting chatting.”

The judge said Christopher was “prevaricating” about jumping in.

A boy was then “seen to push him in the back, causing him to fall into the river”.

Christopher immediately got in to difficulty and the boys, including the one who pushed him, jumped in to help.

Lord Justice Popplewell added: “However, they were unable to assist him as he kept pulling them under water in panic, and tragically he drowned.”

The judge went on: “Christopher’s family believed this to be a racially motivated hate crime as Christopher was black and all the other children present were white.

“Ms MacDaid gave careful consideration to this suggestion … concluding that there was no evidence to support it.

“There is no challenge to that aspect of her decision.”

Mr Justice Dove said he agreed with Lord Justice Popplewell’s conclusions.

Judges said the “suspect” could not be named in media reports.

The teenager was identified only as “Q” in the ruling