QUEEN'S BENCH DIVISION
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE JACKSON
|THE QUEEN ON THE APPLICATION OF F||(CLAIMANT)|
|(1)CROWN PROSECUTION SERVICE||(1ST DEFENDANT)|
|(2)CHIEF CONSTABLE MERSEYSIDE POLICE||(2ND DEFENDANT)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR J CHUKWUEMEKA (instructed by THE CROWN PROSECUTION SERVICE) appeared on behalf of the 1ST DEFENDANT
MR J DE BONO (instructed by MERSEYSIDE POLICE) appeared on behalf of the 2ND DEFENDANT
Crown Copyright ©
Part 1. Introduction
"(1) Subsections (2) to (5) below apply where -
(a) a constable has evidence that a child or young person ("the offender") has committed an offence;(b) the constable considers that the evidence is such that, if the offender were prosecuted for the offence, there would be a realistic prospect of his being convicted;(c) the offender admits to the constable that he committed the offence;(d) the offender has not previously been convicted of an offence; and(e) the constable is satisfied that it would not be in the public interest for the offender to be prosecuted.
(2) Subject to subsection (4) below, the constable may reprimand the offender if the offender has not previously been reprimanded or warned.
(3) The constable may warn the offender if -
(a) the offender has not previously been warned; or(b) where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought;
But no person may be warned under paragraph (b) above more than once.
(4) Where the offender has not been previously reprimanded, the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning.
(5) The constable shall -
(a) where the offender is under the age of 17, give any reprimand or warning in the presence of an appropriate adult; and(b) explain to the offender and, where he is under that age, the appropriate adult in ordinary language -(i) in the case of a reprimand, the effect of subsection (5)(a) of section 66 below;(ii) in the case of a warning, the effect of subsections (1), (2), (4) and (5)(b) and (c) of that section, and any guidance issued under subsection (3) of that section.
(6) The Secretary of State shall publish, in such manner as he considers appropriate, guidance as to -
(a) the circumstances in which it is appropriate to give reprimands or warnings, including criteria for determining -(i) for the purposes of subsection (3)(b) above, whether an offence is not so serious as to require a charge to be brought; and(ii) for the purposes of subsection (4) above, whether an offence is so serious as to require a warning;(aa) the places where reprimands and warnings may be given;(b) the category of constable by whom reprimands and warnings may be given; and(c) the form which reprimands and warnings are to take and the manner in which they are to be given and recorded..."
"(1) Where a constable warns a person under section 65 above, he shall as soon as practicable refer the person to a youth offending team.
(2) A youth offending team -
(a) shall assess any person referred to them under subsection (1) above; and(b) unless they consider it inappropriate to do so, shall arrange for him to participate in a rehabilitation programme.
(3) The Secretary of State shall publish, in such manner as he considers appropriate, guidance as to -
(a) what should be included in a rehabilitation programme arranged for a person under subsection (2) above;(b) the manner in which any failure by a person to participate in such a programme is to be recorded; and(c) the persons to whom any such failure is to be notified.
(4) Where a person who has been warned under section 65 above is convicted of an offence committed within two years of the warning, the court by or before which he is so convicted -
(a) shall not make an order under subsection (1)(b) (conditional discharge) of section 1A of the 1973 Act in respect of the offence unless it is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its doing so; and(b) where it does so, shall state in open court that it is of that opinion and why it is.
(5) The following, namely -
(a) any reprimand of a person under section 65 above;(b) any warning of a person under that section; and(c) any report on a failure by a person to participate in a rehabilitation programme arranged for him under subsection (2) above,
May be cited in criminal proceedings in the same circumstances as a conviction of the person may be cited.
(6) In this section "rehabilitation programme" means a programme the purpose of which is to rehabilitate participants and to prevent them from re-offending".
"The final warning scheme aims to divert children and young people from their offending behaviour before they enter the court system."
"The scheme was designed to do this by:
• ending repeat cautioning and providing a progressive and effective response to offending behaviour;
• providing appropriate and effective interventions to prevent re-offending; and
• ensuring that young people who do re-offend after being warned are dealt with quickly and effectively by the courts."
"The scheme has now been in operation for over two years and is proving its worth... in 2001, 28,339 young people received final warnings and 70% were accompanied by an intervention programme. Research shows that effective intervention at the final warning stage significantly reduces the rate of re-offending. The Youth Justice Board has set a target that 80 per cent of all final warnings should have an intervention programme by 2004."
Part 2. The Facts
"We write strictly without prejudice in respect of our client F.
"The client faces an allegation of aggravated UTMV and having now had the opportunity to obtain his full instructions it appears that he may well admit to this offence on the basis that he accepts he was in the vehicle.
"You will note that four of the co-accused in this case have been given a reprimand/final warning and given our client's record we feel in the circumstances that this may well be a case for our client to be subject to a final warning.
"Clearly in the circumstances it will therefore be necessary to re-interview our client if these admissions are to be forthcoming. We therefore canvass your view at this stage as to the possibility of doing this."
Part 3. The Present Proceedings
Part 4. The Police Decision Not To Re-interview The Claimant
"Questions relating to an offence may not be put to a person after he has been charged with that offence, or informed that he may be prosecuted for it, unless they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement, or where it is in the interests of justice that the person should have put to him and have an opportunity to comment on information concerning the offence which has come to light since he was charged or informed that he might be prosecuted. Before any such questions are put to him, he shall be warned that he does not have to say anything but that anything he does say may be given in evidence and reminded of his right to legal advice..."
"For the purpose of... clearing up an ambiguity in a previous answer or statement."
Mr Mills did not press his argument on this phrase with great force. He submitted, however, that it was possibly applicable to the present case.
"The person should have put to him and have an opportunity to comment on information concerning the offence which has come to light since he was charged or informed that he might be prosecuted."
Part 5. The Refusal Of The Police To Administer A Final Warning To The Claimant
"Subsections (2) to (5) below apply where...
(c) the offender admits to the constable that he committed the offence."
In the course of his submissions this morning, Mr Mills was not able to point to any specific document or record of things said in which the claimant did admit to a police constable, or indeed to anybody else, that he had committed the offence.
"In any event if there had been an unqualified admission of guilt at some stage after charging, which there was not, the Police would have been acting lawfully in refusing to go refer the matter for reprimand given that it was not until after charge and indeed, not until after the Claimant attended Court on 24th January 2003, 6 days after charge, that there was any indication that he might wish to be dealt with by way of reprimand.
"There is no absolute right to a reprimand. It would not be in the public interest if those guilty of offences could refuse to admit their guilt, wait to see whether they were charged and whether proceedings were continued against them and then opt out of the court process as of right at some later stage."
Part 6. The Decision Of The Crown Prosecution Service To Pursue The Prosecution
"Without prejudice to any functions which may have been assigned to him in his capacity as a member of the Service, every Crown Prosecutor shall have all the powers of the Director as to the institution and conduct of proceedings but shall exercise those powers under the direction of the Director."
"Where, at any time during the preliminary stages of the proceedings, the Director gives notice under this section to the clerk of the court that he does not want the proceedings to continue, they shall be discontinued with effect from the giving of that notice..."
"In view of the Police refusal to offer a reprimand or final warning to the claimant the Crown Prosecution Service had two options, either to proceed with the prosecution or discontinue the proceedings on public interest grounds. Upon a further review of the case I was satisfied the factors I had previously identified were still relevant and I did not consider it appropriate to discontinue the proceedings on public interest grounds. To do so would have meant that the claimant, against whom there was sufficient evidence to prove his involvement in a criminal offence, would not be the subject of any sanctions while the other youths involved were either the subject of final warnings or criminal proceedings. For these reasons I decided that the case would proceed."
"I have come to the conclusion that, in respect of juveniles, the discretion of the CPS to continue or to discontinue criminal proceedings is reviewable by this court but only where it can be demonstrated that the decision was made regardless of or clearly contrary to a settled policy of the Director of Public Prosecutions evolved in the public interest, for example the policy of cautioning juveniles, a policy which the CPS are bound to apply, where appropriate, to the exercise of their discretion to continue or discontinue criminal proceedings. But I envisage that it will be only rarely that a defendant could succeed in showing that a decision was fatally flawed in such a manner as that."
Part 7. Conclusion