Marshall v. The Director of Public Prosecutions, Court of Appeal - Privy Council, January 24, 2007, [2007] UKPC 4

Resolution Date:January 24, 2007
Issuing Organization:Privy Council
Actores:Marshall v. The Director of Public Prosecutions


[2007]UKPC 4

Marshall v. The Director of Public Prosecutions (Jamaica) [2007] UKPC 4 (24 January 2007)

Privy Council Appeal No 2 of 2006

Leonie Marshall Appellant


The Director of Public Prosecutions Respondent




- - - - - - - - - - - - - - - - -


22nd November 2006, Delivered the 24th January 2007

- - - - - - - - - - - - - - - - -

Present at the hearing:-

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Carswell

Lord Mance

- - - - - - - - - - - - - - - -

[Delivered by Lord Carswell]

On 13 December 1999 Patrick Genius, a man of 26 years, was shot by police officers, sustaining wounds from which he died. An inquest jury subsequently brought in a verdict which reads ``person or persons criminally responsible'', but the Director of Public Prosecutions (``DPP'') decided not to bring any prosecution. The mother of the deceased Leonie Marshall, the appellant in this appeal, brought an application for judicial review of the DPP's decision. The Jamaican courts refused her application and she appealed with the leave of the Court of Appeal to the Privy Council. At the conclusion of the hearing the Board stated that they would humbly advise Her Majesty that the appeal should be dismissed and that they would give their reasons for this conclusion at a future date. This judgment contains the Board's reasons for that decision.

Evidence was given at an inquest into the death of the deceased by three police officers, Corporal James, Detective Corporal Francis and Corporal Grant, who were the only eye-witnesses of the shooting incident. The first contact with the deceased was made by Cpl James, who deposed that at 5.10 pm approximately on 13 December 1999 he was travelling in his private car on Hope Boulevard, St Andrew when he saw two men on a motor cycle. He suspected that they had been involved in local robberies and followed them at a distance, summoning assistance from his station. This came in the form of Det Cpl Francis and Cpl Grant in a police car.

The three officers drove to a point about 35 yards from where the two men had alighted from the motor cycle and got out of their cars. When they saw the officers both men pulled guns from their waistbands and fired at them. James returned fire while the other two officers took cover. One of the two men jumped on to the motor cycle and made his escape. The other, later identified as Patrick Genius, climbed a fence into the grounds of a school and while he was scaling it Francis fired one shot at him. He ran across a playing field towards some bushes, with the officers in pursuit. As he ran he fired another shot at the officers and Francis fired another two shots at him. The officers headed after him into the bushes. While they were searching for him, Genius appeared out of the bushes and fired at them. James and Grant both returned fire and Genius fell to the ground, bleeding and apparently dead. James fired six shots in all in the course of the incident, Francis three and Grant four. They each deposed that they found beside Genius' body a Smith & Wesson .38 revolver, with four spent cartridges and one live round in the chamber. He was taken at once to hospital, where he was pronounced dead on arrival. It was suggested to the officers in cross-examination by counsel for the next-of-kin at the inquest that the deceased had been shot in the back of the head when they went up to him after he fell, but they all denied the suggestion.

A post mortem examination of the body of the deceased was carried out on 30 December 1999. The pathologist Dr Sarangi deposed at the inquest that he found five wounds on the body:

(i) a perforating entrance wound on the back of the left thigh, with an exit wound on the front of the thigh one centimetre lower;

(ii) a perforating entrance wound on the right outer aspect of the right thigh, with an exit wound on the front of the thigh, some two centimetres higher;

(iii) a superficial bullet graze on the back of the head in the mid line;

(iv) a penetrating circular entrance wound on the left side of the head above the left ear. The bullet travelled in a downward trajectory after it entered the skull cavity. It was not recovered by the pathologist because of its location inside the cranium.

(v) A perforating circular entrance wound ``on the left side back of head'' close to the left ear, with an exit wound on the right side of the face over the zygoma bone. The exit wound was 3 cm lower than the entrance wound, indicating that the bullet took a downward trajectory inside the skull.

Death was attributed to the head wounds. There was no gunpowder deposition at the site of any of the wounds, which indicated that they had been fired from a distance greater than close range, normally placed at two to three feet. Dr Sarangi stated in the course of questioning that the skull bone, being a rigid structure, can change the trajectory and speed of a bullet which has struck it. He agreed that the wounds were consistent with a person running away from the person firing and perhaps turning his head when hit. They were also consistent with his having been standing without moving. The pathologist said that it is possible for a person who receives an injury such as wound (v) to keep running for a period of up to five minutes. It was possible that wounds (iv) and (v) could have caused the deceased to fall immediately or he could have performed normally for a little while.

Swabs were taken from the hands of the three police officers about 9 pm on 13 December 1999 and from the hands of the deceased about 10 pm the same evening. A forensic scientist Marcia Dunbar, who tested the swabs for gunshot...

To continue reading