DPP accused of misleading court over death in custody

Serious questions were last night raised over the Crown Prosecution Service and the Director of Public Prosecutions, Barbara Mills, after she agreed for the second time in two days to reconsider a decision not to prosecute police officers for manslaughter after a man died in their custody.

The DPP's legal team abruptly accepted an order quashing the decision not to prosecute three officers after lawyers for the family of Irishman Richard O'Brien obtained a court order for the disclosure of three key documents. They showed a different version of how Dame Barbara reached her original decision not to prosecute from that presented to the court in an affidavit by Robert Munday, a Principal Crown Prosecutor, on her behalf.

Fiona Murphy, solicitor for the O'Brien family, said last night that the DPP had given the court a "wholly misleading" set of reasons for refusing to prosecute.

Dame Barbara's climbdown, which will refuel claims that the CPS does not treat deaths in custody seriously enough, came just 24 hours after her unprecedented agreement to reconsider a decision not to prosecute two police officers after Nigerian-born Shiji Lapite died in an incident at Stoke Newington, north London, in December 1994.

Mr O'Brien, a 37-year-old market trader and father of seven, was found to have 31 separate areas of injury on his body after he was arrested for allegedly being drunk and disorderly after a fight between two women at a south London dance hall in April 1994.

The disclosed documents suggested that the O'Brien case was sent to the DPP for her decision, but a letter before the court from the CPS stated that in fact the director had not made the decision.

Lord Justice Rose, the senior judge hearing a judicial review of the decision brought by the widow, Alison O'Brien, said he was "gravely concerned" over the conflict between the case notes and the affidavit, the confusion over the identity of the decision-maker and the late disclosure of the documents.

The CPS affidavit did not provide an explanation as to how Mr O'Brien had come by his 31 injuries but merely asserted that they were not the primary cause of death. But the disclosed memoranda presented what the O'Brien lawyers consider to be an utterly illogical theory.

The CPS suggested in one of the memos that the injuries could have been caused in the course of an altercation between the deceased's son, Richard, then 14, and an officer in the back of a police van. The logical conclusion of the theory would have been that the boy was responsible for the injuries to his father. The inquest pathologist, however, had given evidence discounting the possibility that Mr O'Brien's injuries were caused in the back of a police van.

The inquest jury, which unanimously decided Mr O'Brien had been unlawfully killed, was told that officers placed him face down on the ground with hands handcuffed behind his back and his legs folded back against his thighs. He died of postural asphyxia after one officer knelt on his legs, another on his buttocks and another on his back, while two others held his limbs.

While the CPS theory revealed by the disclosed documents appears to have been material to its decision, it was not put in the affidavit and is likely to have remained buried had the lawyers not sought discovery.

Mrs O'Brien said: "I am disgusted that it has now been suggested by a Crown lawyer at this late stage that my son may have been responsible for some of my late husband's injuries. I will not stop fighting until those responsible for my husband's death are made accountable for their actions."

Inquest, the campaigning group backing Mrs O'Brien's case, called yesterday for an inquiry to be held into all deaths in custody.