England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		21 June 2001

1. LORD JUSTICE ROSE: There is before the court an appeal by way of case stated by the Director of Public Prosecutions. He challenges a decision of the North Surrey Justices sitting at Staines Magistrates Court on 24th January 2001 to stay proceedings against the respondent defendant, for an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, as an abuse of process.
2. The circumstances of this matter appear from the case stated. On 13th August 2000 an information was preferred by the appellant against the respondent alleging assault occasioning actual bodily harm on 8th June 2000. The justices, having heard the arguments on 24th January, found the following facts. The respondent was interviewed by a police constable on 12th June with no solicitor present. In the course of that interview (which was recorded) he made an admission which, in the view of that police constable, rendered him suitable for caution. At that time the officer explained to the respondent that the police might not proceed to charge, but the final decision in relation to caution would rest with a supervising officer. Thereafter on that day, 12th June, the respondent was released on bail. He then instructed a solicitor.
3. On 21st June his solicitor wrote to the Staines police seeking a copy of the taped interview and a copy of the custody record. It is accepted before us that the respondent was entitled to a copy of the custody record and the ultimate refusal to disclose it was a breach of paragraph C2.4 of the code of practice in relation to detention, treatment and questioning made under the Police and Criminal Evidence Act 1984; but nothing turns on that for present purposes.
4. On 26th June the Staines custody inspector wrote to the respondent's solicitor declining his request. Thereafter, in writing and on the telephone, the solicitor made further requests for disclosure; none took place.
5. On 13th August the respondent and his solicitor attended Staines Police Station. The justices found that a caution was to be offered on that occasion on the recommendation of the constable who had interviewed the respondent, subject to verification by the supervising officer. On 13th August the solicitor made it clear to the supervising officer that he did not have a record of the interview on 12th June to enable him to advise the respondent as to the issue of a caution.
6. In consequence, the justices found, the solicitor indicated that there was no option but for him to advise the respondent to contest the allegation because he could not advise the acceptance of a caution. In addition, the solicitor said that the defendant had at least 20 witnesses to establish self-defence. These events having occurred, the supervising officer proceeded to charge the respondent with assault occasioning actual bodily harm.
7. The case rehearses the rival contentions advanced before the justices which are, in most respects, similar to the contentions which have been advanced in this court. In essence, it was contended on behalf of the respondent that the police had a duty to disclose the terms of the interview to enable an appropriate advice to be given by the solicitor as to whether or not to consent to a caution. Absent disclosure, no appropriate advice could be given and, in consequence, the subsequent decision to prosecute was an abuse.
8. On behalf of the prosecution it was contended that there was no duty to effect disclosure of this kind prior to charge, the relevant code of practice dealing, as it does, with matters subsequent to charge. It was also contended that disclosure would have made no difference; no formal offer of caution had been made because of the solicitor's indication of the defence reliance on self-defence. It was contended that informed consent to caution only required that the defendant should understand the effect of a caution and what he would be accepting. It was also contended that the prosecution were under a duty to keep the case under review and the opportunity to dispose of it by way of caution might still have been available if an unambiguous admission had been made subsequently by the defence. Finally, it was contended that lack of disclosure did not render the subsequent proceedings an abuse necessitating a stay.
9. The justices in the case, having been referred to a number of authorities including one decision of the European Court of Human Rights and another of the Commission, were of the opinion that the primary purpose of the attendance on 13th August was for a decision to be made as to a caution, or whether the defendant should be charged. They were of the view that a formal offer of caution would only have been made after the supervising officer had taken account of the gravity of the matters alleged and aggravating and mitigating features and hearing the views of the interviewing officer and having been satisfied as to the existence of a reliable admission and the likelihood of consent to a caution. The justices were of the opinion that the only reason no formal caution was offered was the comments by the solicitor that he, in the absence of evidence of guilt, had no option but to advise that he contest the allegation on the grounds of self-defence.
10. The justices said that the failure to provide material to enable the solicitor to assess the prosecution case against the client prevented the solicitor from effectively participating by providing informed advice as to a caution; and informed consent, the justices concluded, encompassed not only the defendant's understanding of the effect of a caution but also the reason why he should admit the offence and accept a caution as being appropriate.
11. As a result of the lack of disclosure and the consequential inability of the defendant to receive appropriate advice, the justices concluded that the question of a caution was no longer an option. In so far as it is of any relevance, it is apparent from the endorsement of defence counsel's brief on 17th August, to which Mr Germain first drew our attention, that a caution was not going to be reconsidered. Although that document was, of course, not before the justices, it demonstrates the correctness of that particular conclusion on their part. The crucial conclusion of the justices was that the failure to disclose precluded the giving of appropriate advice and the subsequent commencement of criminal proceedings amounted to an abuse necessitating a stay. The justices then pose two questions for the consideration of this court, to which later I shall return.
12. On behalf of the Director, Mr Germain first submits that the justices should never have ruled on the application for a stay at all, but should have remitted the matter to the Divisional Court for consideration. For my part, I am unable to accept that submission. Quite apart from the fact that neither prosecution nor defence invited the justices to remit this matter for the consideration of the Divisional Court, it does not seem to me to be one of such complexity as would properly require the justices to remit the matter to this court rather than to deal with it themselves.
13. Mr Germain submits, rightly, that paragraph E4.16 of the Code of Practice in relation to the taping of interviews made under the Police and Criminal Evidence Act 1984 section 60, does not impose a duty of disclosure prior to charge. He submits that, if a general duty of disclosure prior to charge were to be imposed upon the police it would result in the withering of the caution process because the police would simply not bother to caution; if they had a general duty of disclosure, they would merely proceed to charge. The decision as to whether to caution is always a matter for the police (Home Office Circular 18/1994 paragraph 3).
14. Mr Germain submitted that the request for disclosure of the terms of the interview did not affect the present case because the reference to the number of witnesses capable of establishing self-defence indicates that no caution would have been accepted by the defence. The difficulty with that submission, as it seems to me, is that, in part, it is at variance with the findings of the justices, but, more significantly, it does not address the impact of non-disclosure upon the ability of the defendant's solicitor properly to advise him. Mr Germain rightly accepts that a defendant is entitled to legal advice as to whether or not he should agree to a caution. In my judgment, such legal advice can only be of value, if indeed it can be given at all, if it is given with knowledge of what admissions, if any, have been made by his client, as to guilt of the offence in relation to which the possibility of a caution arises.
15. Mr Germain rebutted the reliance on European authorities on behalf of the respondent by reference to a judgment of Lord Woolf CJ in Wildman v Director of Public Prosecutions on 23rd January 2001. In paragraph 10 of that judgment, having referred to certain European Court of Human Rights authorities, the Lord Chief Justice said that that jurisprudence could not and should not be applied directly to the procedures in the English jurisdiction:

"...whether access to documents is to be granted, and when it is to be granted, must depend upon the particular domestic procedure which is being brought into play in proceedings before the courts in this jurisdiction".

16. At the invitation of the court, Mr Germain commented upon R v Director of Public Prosecutions ex parte Lee [1999] 2 All ER 737. At page 749 Kennedy LJ said by reference to the Criminal Procedure and Investigations Act:

"The 1996 Act does not specifically address the period between arrest and committal, and whereas in most cases prosecution disclosure can wait until after committal without jeopardising the defendant's right to a fair trial the prosecutor must always be alive to the need to make advance disclosure of material of which he is aware (either from his own consideration of the papers or because his attention has been drawn to it by the defence) and which he, as a responsible prosecutor, recognises should be disclosed at an earlier stage. Examples canvassed before us were- (a) previous convictions of a complainant or deceased if that information could reasonably be expected to assist the defence when applying for bail; (b) material which might enable a defendant to make a pre-committal application to stay the proceedings as an abuse of process;"

17. There are references to other examples which are not presently material. Mr Germain submitted that that passage applied only to the prosecutor and does not apply to the police.
18. On behalf of the respondent, Mr Broatch stressed that paragraph z of the Home Office Circular in relation to cautioning requires that "the offender must admit the offence" and "must understand the significance of the caution and give informed consent to being cautioned". He accepted that procedures in relation to the offering and acceptance of a caution are not provided for by any Act or Code, but, he submitted, the 1996 Act and the Code made under it give some clue as to the appropriate approach to disclosure in such a case. He does not seek to suggest, in view of Wildman, that article 6 of the Europe Convention on Human Rights confers an entitlement at the pre-charge stage to the full disclosure which is appropriate before a fair trial can be held. But, he submitted, that does not mean that there is no entitlement to disclosure of any kind before charge. In support of that submission he too relied upon a passage in the judgment of Lord Woolf in Wildman. At paragraph 24, having referred to the custody time limits, an application to extend which was the subject of debate in that case, Lord Woolf said this:

"...it is to be hoped that in the majority of cases it is will be possible for the Crown Prosecution Service to make information available to a defendant, prior to the application being made, which will enable him or her to be satisfied as to the propriety of the application. Insofar as it is necessary for a defendant to test any aspect of the application, then the means must be provided to enable him or her to do that. However, formal disclosure of the sort which is appropriate prior to the trial will not normally be necessary in regard to an application either for bail or for an extension of time limits."

19. Mr Broatch accepted that questions as to bail and the extension of time limits can only arise after a defendant has been charged. But, he submits, the ability of a defendant to satisfy himself or herself "as to the propriety of the application" affords some sustenance to the argument that, in relation to the propriety or otherwise of agreeing to accept a caution, a defendant is entitled to have disclosed to those advising him the terms of his interview with the police. Also, submits Mr Broatch, the entitlement to material goes substantially beyond that suggested on behalf of the Crown which is limited to information sufficient to realise what the caution means.
20. Mr Broatch submits that, on the facts found by the justices, the respondent looked set to avoid a trial and the risk of conviction. That prospect was obstructed because of the refusal of the police to disclose the terms of the interview. Mr Broatch submitted that no material distinction is to be drawn between police and prosecutor in relation to the obligation to disclose as outlined by Kennedy LJ.
21. Mr Broatch also relied upon R v Croydon Justices ex parte Dean [1993] QB 769 and, in particular, a passage in the judgment of Staughton LJ at 778 F:

"In my judgment the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process. Mr Collins was eventually disposed to concede as much, provided (i) that the promisor had power to decide and, (ii) that the case was one of bad faith or something akin to that. I do not accept either of those requirements as essential."

22. Mr Germain distinguished that case on the basis that, in the present case, no promise had been made to the respondent. All that had been said to him was that he could be considered for a caution, but the final decision was down to the supervising officer. The prosecution approach in the present case, Mr Broatch submitted, effectively meant: "Accept the caution blind or be prosecuted".
23. The first question posed by the case stated is whether the justices were correct in deciding that there is a duty upon the police to supply disclosure of a previous interview to a suspect's solicitor in order that he could advise the suspect whether or not to consent to caution. The second question is whether, if so, they were correct in further determining that lack of such disclosure rendered the subsequent criminal proceedings such an abuse as to necessitate a stay.
24. For my part, I would answer both those questions in the affirmative. It seems, to my mind, that it is not in the public interest or the interest of a defendant that criminal proceedings should be instituted and pursued against a defendant in relation to whom the police are prepared merely to caution when that defendant is prepared to accept such a caution. That is perhaps a statement of the obvious, because it underlies the cautioning regime. To my mind, the question of whether or not a defendant should accept a caution is inextricably linked with his entitlement, as Mr Germain concedes, to legal advice and to the necessary prerequisite for informed legal advice, that those advising know accurately the terms of the interview on the basis of which the police are prepared to issue a caution. It is the common experience of those involved in criminal cases that a suspected person may himself have an inaccurate recollection of what he said in the course of a police interview, even when that recollection is tested, as clearly it was capable of being in the present case, within a few days of the interview taking place.
25. In my judgment, in the present case, the justices were fully entitled to conclude that the proceedings should be stayed as an abuse of process, the police having refused to disclose the terms of the interview, without which informed advice and informed consent to a caution could not properly be given. I make it clear that this does not mean that there is a general obligation on the police to disclose material prior to charge. That would, in many cases, be impracticable and, in some cases, (for example where there is an ongoing investigation) highly undesirable, as well as being outwith the contemplation of the legislation, the code or anything to be implied therefrom. But, in the present case, the failure to disclose the terms of the interview followed by the institution and pursuit of a criminal trial in the circumstances described amply justified the justices in reaching the conclusion which they did. Therefore, I would dismiss this appeal.

MR JUSTICE SILBER: I agree.

MR BROATCH: My Lord, your Lordships have therefore dismissed the appeal with the respondent's costs to be paid by the appellant and to be subject to detailed assessment if not agreed?

LORD JUSTICE ROSE: Is the respondent--

MR BROATCH: The respondent is on----

LORD JUSTICE ROSE: —on legal aid?

MR BROATCH: Yes. I would also ask for a community public funding detailed assessment, formerly legal aid taxation.

LORD JUSTICE ROSE: Is there any reason why there should not simply be an order that the respondent's costs be paid out of central funds? Or is that a very antediluvian order which one no longer has power to make?

MR BROATCH: My Lord, it could be paid out of central funds, but if I have succeeded I would normally expect to, in an appeal of this sort, I would normally expect to get an adversarial order.

LORD JUSTICE ROSE: I dare say, but bearing in mind it is public money in any event, is there any advantage to the respondent in having an order?

MR BROATCH: Would your Lordship just give me a moment?

LORD JUSTICE ROSE: Yes.

MR BROATCH: No, my Lord, I think we would be content for an order that costs be taxed from central funds, but I think for the sake of completeness that would also have to be an order for legal aid taxation.

LORD JUSTICE ROSE: Yes, whatever the appropriate current phraseology is in relation to that. Well, the respondent will have his costs out of central funds to be assessed as is appropriate. Will that do?

MR BROATCH: And a community funding certificate taxation. He will need that because----

LORD JUSTICE ROSE: And you have a community funding certificate as well.

MR BROATCH: For taxation, yes. Grateful. I do not know if your Lordship was going – in the judgment there were just two points, the first one was the code which my friend quoted was made under the Police and Criminal Evidence Act and not----

LORD JUSTICE ROSE: You are quite right, I am sorry, that was my fault. The transcript will be corrected, yes.

MR BROATCH: And the two European Human Rights cases cited by the justices one was of the court----

LORD JUSTICE ROSE: Was the other a Commission decision?

MR BROATCH: A commission decision.

LORD JUSTICE ROSE: And, yes, thank you very much. The transcript will be amended to reflect that, thank you.

MR BROATCH: I am obliged.