CPS statement: Death of Christopher Kapessa

Jenny Hopkins, who oversees the Appeals and Review Unit within the CPS, said:

“Christopher Kapessa’s death was an awful tragedy and on behalf of the CPS I want to offer our deepest condolences to his family.

“Each case is different and the CPS's role is to make independent and impartial assessments about whether it is right to bring a prosecution.

“Although there was evidence to support a prosecution for manslaughter it was not in the public interest to prosecute. Christopher’s tragic death occurred after a group of children went out to have fun by the river. The evidence showed that Christopher was pushed into the river as a foolish prank with nothing to suggest that the suspect intended to harm him, although that was the awful consequence.

“Factors we took into consideration when reaching our decision included the young age of the suspect who was 14-and-a-half at the time, his lack of a criminal record, and otherwise good character. Significant weight must be attached to the age of a suspect if they are a child or young person under 18. In that context we also considered the impact on his future prospects and that the main aim of the youth justice system is to prevent offending. We also considered the impact of a trial on the other children who were present.

“We recognise our decision will be upsetting for the family who may feel the suspect’s life has been prioritised over Christopher’s. Many of Christopher’s schoolmates described him with great affection and said how much they liked him. More than one considered him to be a best friend and they all spoke about how funny he was and how they enjoyed being in his company.

“We have applied our legal test to the evidence and I hope they can understand how and why we came to the decision.”

The evidence

The evidence presented to the CPS showed that Christopher Kapessa, 13, and several other children agreed to go to the Red Bridge over the Cynon River after school on Monday, 1 July 2019. Some of the group had been there the day before, including Christopher. On that day, while some had jumped off the bridge into the river Christopher had not and the day passed without incident. On 1 July, there were about 16 young people at the bridge. Some were jumping into the river from the bridge and some from rocks that were nearer to the water.

Christopher made his way to the rocks, changed into swimming trunks and took off his top, his glasses and his footwear. Some of the group recalled him saying that he really wanted to jump in while others stated that Christopher told them he could not swim and they told him not to jump in. However, Christopher was heard to tell others that he could swim. By all accounts they were all happy and having fun together.

There were three other boys on the rocks with Christopher. The suspect, who was 14-and-a-half years old at the time, was standing behind him. Witnesses described Christopher being pushed by the suspect from behind as a foolish prank and falling into the water, taking another boy in with him. Almost immediately some of the group realised that Christopher was in difficulties. The suspect and some other children jumped in very quickly to try and help Christopher. Sadly, they were unable to rescue him.

CPS decision

South Wales Police referred the evidence they had gathered to the CPS for a charging decision on the suspect. This included video statements taken from all 16 children who were present at the bridge.

When considering whether or not to charge someone with a crime, prosecutors must apply the two stage test set out in the Code for Crown Prosecutors:

• First stage: is there sufficient evidence to provide a realistic prospect of conviction against the suspect?
• Second stage: if the first stage is met then a prosecutor must consider whether a prosecution is required in the public interest.

Both stages must be met for a prosecution to take place. In addition, in relevant cases a prosecutor must also take into account the CPS Guidance on Youth Offenders. This states that prosecutors must consider the interests of a young suspect, amongst other public interest factors, when deciding whether a prosecution is needed.

The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect. The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending. Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people. Prosecutors must consider the suspect’s maturity, as well as their age. As a starting point, the younger the suspect, the less likely it is that a prosecution is required.

We concluded in February 2020 that although there was sufficient evidence for a prosecution for manslaughter it was not in the public interest to proceed. We wrote to Christopher’s mother explaining the reasons behind our decision and acknowledged the disappointment this would cause his family.

The family appealed the decision under the CPS’s Victims’ Right to Review scheme. This allows victims to request that a prosecutor, not previously involved in the case, re-examine the case to ensure the correct decision was made for the right legal reasons. The review upheld the earlier decision that it was not in the public interest to bring a prosecution. Christopher’s mother has received a full explanation of the reasons and has been offered an opportunity to meet with CPS Cymru Wales.

The review

The review concluded that the push amounted in law to a common assault and therefore an unlawful act. This action resulted in Christopher’s tragic death and therefore there was a realistic prospect of conviction for manslaughter.

However, the public interest stage of our legal test was not met.

An incident resulting in the death of a child is a most serious offence and Christopher’s death has understandably had a devastating impact on his family and friends. However, we considered the following key factors weighed against a prosecution:

• The age of the suspect. Significant weight must be attached to the age of the suspect if they are a child or young person under 18.
• Though the outcome was tragic, the evidence suggested the push was not a deliberately hostile or violent act. The evidence established that it was a foolish act, carried out as a prank by a young boy who had not considered the full potential of the consequences. This tends to make the suspect’s actions less culpable.
• There was no evidence that the incident was premeditated or pre-planned.
• The suspect did not benefit from this tragedy in any way.
• The suspect had no criminal record and was of good character. Teachers describe him as mature, intelligent, and as having a good school record.
• The principal aim of the youth justice system is to prevent offending and there is no suggestion that the suspect would commit further offences.
• The welfare and impact on Christopher’s friends of giving evidence and reliving the events when they witnessed the death of their friend.
• The seriousness of the incident and its impact on Christopher’s family has to be balanced against the guidelines which state that the best interests and welfare of the child or young person must be considered. A prosecution and conviction will have a significantly detrimental effect on the suspect’s education, employment and future prospects.

We concluded that the factors militating against a prosecution outweighed the factors in favour of a prosecution. For these reasons, it was not in the public interest to prosecute the suspect.

Suggestion of racial bias

The CPS decision not to prosecute the suspect was based solely on the two stage test applied to the evidence referred to us by the police.

As part of the public interest, prosecutors are reminded that it is more likely that prosecution is required if the offence was motivated by prejudice, including on the grounds of race. There was nothing in any of the statements of the young people which suggested any racial issues or that this was a hate crime.

CPS function

The CPS's function is not to decide whether a person is guilty of a criminal offence, but to make fair, independent and objective assessments about whether it is appropriate to present charges for the criminal court to consider. The CPS assessment of any case is not in any sense a finding of, or implication of, any guilt or criminal conduct. It is not a finding of fact, which can only be made by a court, but rather an assessment of what it might be possible to prove to a court, in accordance with the Code for Crown Prosecutors.