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Cite as: [2003] EWHC 3266 (Admin)

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		Neutral Citation Number: [2003] EWHC 3266 (Admin)
		CO/2143/2003

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

Royal Courts of Justice
Strand
London WC2

12th December 2003

B e f o r e :

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE JACKSON
____________________

	THE QUEEN ON THE APPLICATION OF F	(CLAIMANT)
	-v-
	(1)CROWN PROSECUTION SERVICE	(1ST DEFENDANT)
	AND
	(2)CHIEF CONSTABLE MERSEYSIDE POLICE	(2ND DEFENDANT)

____________________

Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR S MILLS (instructed by MARK JONES & PARTNERS, SOLICITORS) appeared on behalf of the CLAIMANT
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
____________________

HTML VERSION OF JUDGMENT
____________________

Friday, 12th December 2003

MR JUSTICE JACKSON: This judgment is in seven parts; namely Part 1, Introduction; Part 2, The Facts; Part 3, The Present Proceedings; Part 4, The Police Decision not to Reinterview the Claimant; Part 5, The Refusal of the Police to Administer a Final Warning to the Claimant; Part 6, The decision of the Crown Prosecution Service to Pursue the Prosecution; Part 7, Conclusion.

Part 1. Introduction

In these proceedings for judicial review the claimant contends that he ought to be dealt with by way of final warning, rather than criminal prosecution, in respect of an incident in which he was involved at the age of 14.

It is appropriate, at the outset, to set out the statutory framework. This is now contained in the Crime and Disorder Act 1998 to which I shall refer as "the 1998 Act". That Act has been amended by the Criminal Justice and Court Services Act 2000. I shall read out the relevant provisions of the 1998 Act as amended by the Act of 2000. Section 65 of the 1998 provides:

"(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..."

Section 66 of the 1998 Act provides:

"(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".

In November 2002, the Secretary of State published revised guidance pursuant to section 65(6) of the 1998 Act. This guidance is an extremely helpful and clear document. Part 1 of the guidance is an introduction. It sets out that the document provides advice for both the police and youth offending teams on the operation of the final warning scheme. Paragraph 1.3 reads:

"The final warning scheme aims to divert children and young people from their offending behaviour before they enter the court system."

Paragraph 1.4 provides:

"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."

Then there follows a section in the introduction describing the scheme and setting out the effect of the statutory provisions. Paragraph 1.9 is significant, this states:

"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."

Paragraph 1.16 sets out that the guidance issued by the Secretary of State is endorsed by other bodies, including the Crown Prosecution Service. Paragraph 1.17 states that the guidance document is, as its name implies, for guidance only and in no sense is a substitute either for reference to the provisions of the Act or for the taking of legal advice.

The document then goes on to give very detailed and helpful advice about how the police and other agencies should proceed in a number of situations. It should be noted that paragraphs 1.3, 1.4, 4.2, 4.11 and 7.5 all reiterate the need for speed in the operation of the scheme. If a young offender is to be dealt with by means of a reprimand or a final warning it is important, in the public interest, and for the effective operation of the scheme, that that reprimand or final warning should be administered swiftly after the offence has been committed, in order to maximise the impact of such reprimand or final warning upon the young offender.

For my part I recognise the great benefit of the final warning scheme, both for young offenders and also for the general public. Indeed the benefits of the scheme are borne out by the statistical information which appears in paragraph 1.9 of the guidance document. Nevertheless, despite the great value of this scheme, it is clear, both from the statutory provisions and also from the Home Office guidance, that the agencies of the criminal justice system must retain sufficient flexibility in order to take into account the circumstances of each individual case.

Having set out the statutory framework with those few brief comments, I can now turn to the facts of the present case.

Part 2. The Facts

At about 11.30pm on 17th January 2003, two youths took a Rover Metro motor car, which was parked outside the owner's home in Birkenhead, and drove away. At an early stage in its journey the car stopped briefly and three other youths got on board. The claimant was one of those three youths. The Merseyside police were alerted to the incident, they followed the metro car and forced it to stop by positioning one police car in front of the Metro and one behind it. The Metro car then reversed, at speed, into the latter police car. This caused damage to both vehicles. Indeed the Metro, in due course, had to be written off.

Immediately after the impact, police officers arrested five male youths who were inside the Metro. The claimant was one of the back-seat passengers. The five youths were taken to the police station where they were detained overnight.

On 18th January the youths were interviewed in the presence of appropriate adults and legal representatives. Four of the youths admitted their involvement in the offence. The claimant, however, did not. Instead he refused to answer questions in interview. In due course two of the youths were dealt with by way of reprimand, pursuant to section 65 of the 1998 Act. The other three youths, including the claimant, were charged with aggravated vehicle taking, contrary to section 12A of the Theft Act 1968 and were brought before the Youth Court.

The reasons why these three youths were prosecuted were as follows: two of them had three previous reprimands or warnings and so were ineligible to be dealt with under the final warning scheme. The third, the claimant, had refused to admit the offence. So, under section 65(1)(c) of the 1998 Act, he was not eligible for a reprimand or a warning.

On 24th January 2003 the claimant made his first court appearance. The claimant's solicitor indicated on that occasion that the claimant might now be willing to admit the offence and asked if the claimant could be considered for a reprimand or final warning. The Magistrates adjourned the case until 21st February so that that matter could be considered.

On 29th January 2003 Mark Jones & Partners, the claimant's solicitors, wrote to the Crown Prosecution Service (to whom I shall refer as the CPS) at Birkenhead as follows:

"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."

The CPS liaised with the police officers involved. Indeed, in a memorandum dated 24th January, the Crown Prosecution Service expressed the view to the police that if the claimant admitted his guilt then a final warning would be appropriate.

The police officers took the view that it was not permissible to re-interview the claimant after he had been charged and after criminal proceedings had been started. The police officers based this view on paragraph 16.5 of Code C issued under the Police and Criminal Evidence Act 1984. That is a provision to which I shall revert in part 4 of this judgment.

Indeed, in their witness statements, the two police officers involved at this stage say that in their long experience they have never known such a course to be taken; namely the re-interviewing of a young defendant after he has been charged and brought before the court. The experience of the two police officers spans periods of 25 years and 15 years respectively.

On 4th February 2003, Mrs Gathercole, a senior crown prosecutor of the CPS in Birkenhead, wrote to Mark Jones & Partners stating that the police were not prepared to offer a final warning to the claimant. Instead the matter would proceed in court.

There was further correspondence between the claimant's solicitors and the CPS. However, the CPS adhered to their decision that they would continue the criminal prosecution and they would not exercise their power to discontinue. The claimant was aggrieved by this decision. Accordingly, the claimant and his legal advisers launched the present proceedings for judicial review.

Part 3. The Present Proceedings

By a claim form issued on 1st May 2003 the claimant applied for judicial review of the decisions contained in the letter from the senior crown prosecutor dated 4th February 2003. The CPS were named as defendant. The Merseyside police and the Birkenhead Youth Offending Team were named as interested parties. The relief sought in the claim form comprised (1) a mandatory order requiring the police to administer a final warning, and (2) a prohibitory order to prevent the CPS from pursuing the prosecution.

The grounds relied upon in the claim form were, in essence, that the police and the CPS had not complied with sections 65 and 66 of the 1998 Act or with the Home Office guidance concerning those provisions. The claimant's claim was supported by a witness statement made by his solicitor Mr Gunn, who is a partner in Mark Jones & Partners.

Neither the defendant, the CPS, nor the interested parties, filed any acknowledgment of service. On 23rd June 2003 Moses J considered the matter on the papers and granted permission for the claimant to proceed with his claim for judicial review. Moses J also gave directions for the filing of evidence.

On 10th July 2003 the defendant filed evidence pursuant to the directions given by Moses J. That evidence comprised a witness statement by Mrs Gathercole, a senior crown prosecutor, together with relevant correspondence and internal memoranda.

The claimant subsequently served an amended claim form naming the Chief Constable of Merseyside Police as second defendant (rather than interested party) and expanding the grounds of claim. Indeed, some tinkering was also done to the relief sought. Very sensibly the Merseyside police agreed in correspondence to be enjoined as second defendant without any need for a formal order.

On 19th September the Merseyside police served a document headed "Grounds for Resisting Claim", which sets out their position with great clarity. This stands, in effect, as the acknowledgment of service of the second defendant. The police say that they have acted correctly, in accordance with the statutory provisions and the Home Office guidance, and that the claim against the police is misconceived. The police also provided to the court witness statements of the various officers involved in the arrest of the claimant, his subsequent questioning, and the decisions which were taken.

Thus there is now before the court very full evidence from everyone who has been involved in this matter on all sides.

The claimant's judicial review proceedings come before the court today for their substantive hearing. The claimant is represented by Mr Stuart Mills. The Crown Prosecution Service, the first defendant, is represented by Mr John Chukwuemeka. The Chief Constable of Merseyside Police, the second defendant, is represented by Mr John De Bono. All counsel have presented their submissions today with economy and have rightly taken their skeleton arguments as read.

The claimant's attack on the course which the two defendants took really resolves into an attack on three separate decisions. First, the decision of the police not to re-interview the claimant. Secondly, the refusal of the police to administer a final warning to the claimant. Thirdly, the decision of the Crown Prosecution Service to continue the prosecution which had been launched, rather than to discontinue it. I must now address these three matters separately and in that order.

Part 4. The Police Decision Not To Re-interview The Claimant

Mr Mills contends, in paragraphs 11 to 14 of his skeleton argument, that the police ought to have re-interviewed the claimant after 29th January (the date of Mr Gunn's letter), but wrongly failed to do so. It appears from the evidence lodged by the Merseyside police that their reluctance to re-interview the claimant rested on two bases. First, paragraph 16.5 of Code C issued by the Secretary of State under the Police and Criminal Evidence Act 1984. Secondly, the fact that it was normal police practice not to interview an accused person after he had been charged and brought before the court.

As to the first matter, paragraph 16.5, of Code C provides as follows:

"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..."

In the course of his submissions this morning, Mr Mills argued that paragraph 16.5 permitted the re-interviewing of the claimant after 29th January, that being the date of the claimant's solicitor's letter to the CPS. Mr Mills first placed reliance on the following phrase in paragraph 16.5 of the code:

"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.

I do not agree. I have carefully read and reread the transcript of the claimant's interview on 18th January. The claimant was repeatedly asked about the incident in question. He refused to answer any questions relating to that interview. It was made plain that this decision was reached by the claimant after legal advice had been given and with the support of his legal adviser and his mother. There is no ambiguity in that interview which called for clarification of the kind referred to in paragraph 16.5 of the code.

Mr Mills next placed reliance on the following part of paragraph 16.5:

"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."

Mr Mills submitted that an indication had been given at the court hearing on 24th January, and in the solicitor's letter dated 29th January, that the claimant might be prepared to admit the offence. That was new information coming to light which called for a further interview.

I do not agree. In my view possible concessions hinted at by an accused person's legal advisers does not constitute information concerning the offence within the meaning of paragraph 16.5 of the Code.

It seems to me, therefore, that the police officers were correct in their reading of paragraph 16.5 of the Code and nothing which happened on or after 24th June enabled the police officers to re-interview the claimant.

I should also refer to the normal practice of the Merseyside police, as described in the witness statements of DC Murray and DC Coy. They say that they have never re-interviewed an accused person after charging and the first court appearance and it is not the practice of the police to do so. It seems to me that the practice of those police officers, as described in their statements, is a perfectly proper practice, leaving aside any exceptional situations which might arise.

Even if I am wrong in the conclusions which I have come to so far, and even if it was permissible for the police officers to re-interview the claimant in view of the indications emerging from the claimant's solicitors, nevertheless, there cannot possibly have been an obligation upon the police to take this course. The police, in discharging their important function of combating street crime and car theft, have to exercise discretions in the handling of individual cases. It would be quite wrong for this court to interfere with operational decisions of the police, of the kind which the claimant is challenging under the first head of his claim.

For all these reasons I consider that the police were acting lawfully in declining to re-interview the claimant. Accordingly, the first limb of the claimant's challenge to the conduct of the police fails.

Part 5. The Refusal Of The Police To Administer A Final Warning To The Claimant

Mr Mills very fairly accepts, in his skeleton argument, that following the interview on 18th January, in which the claimant made no admissions, the police had no power to administer a final warning under section 65 of the 1998 Act. Mr Mills submits, however, that the situation changed after the claimant's solicitors intimated an admission of guilt. Mr Mills goes on to argue that even in the absence of a further interview the police should have proceeded to administer a final warning in accordance with section 65.

In relation to this argument it is necessary to bear in mind the express words of section 65(1)(c):

"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 relation to this issue it is necessary to examine the evidence in a little detail. On 18th January the claimant had a private consultation with Mr Gunn, his solicitor, for 45 minutes. He was then interviewed by two police officers, in the presence of his solicitor and his mother. During the course of the interview it was made clear that if the claimant admitted the offence then the question of cautioning him would be considered. On the other hand, it was made clear if the claimant persisted in his refusal to answer questions, the police would have no option but to bring a criminal charge. The claimant still refused to answer pertinent questions. In this he was supported both by his mother and by his solicitor.

Subsequently, when the claimant's position shifted, there was still no unequivocal admission of guilt. The letter from Mark Jones & Partners, dated 29th January 2003, which I read out in part 2 of this judgment, was in distinctly guarded terms and, curiously, was even written "without prejudice." Neither that letter, nor any other letter sent on behalf of the claimant, specifically admitted his guilt. In those circumstances the conditions set out in section 65(1)(c) of the Act were not satisfied at any time before proceedings were issued, and indeed still have not been satisfied.

In those circumstances the argument that the police should or even could have administered a final warning, pursuant to section 65 of the 1998 Act, is flawed.

That, however, is not the only answer to this limb of the claimant's claim. The police have taken a decision that even if the claimant does belatedly admit his guilt, they are not prepared to administer a final warning. The reasoning process of the police is neatly summarised in paragraphs 10 and 11 of their grounds of resisting the claim as follows:

"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."

In his submissions this morning, Mr De Bono, who appears for the Merseyside police, took us through the relevant parts of the guidance document. This guidance document indicates, as mentioned in part 1 of the judgment, that reprimands or warnings are intended to be administered swiftly after the incident which has given rise to them.

Furthermore, it is quite clear from the guidance document that it is envisaged that any reprimand or warning will take place before a charge is brought against the young offender. Indeed, the scheme does not at all address how the various criminal justice agencies should proceed in the event that a decision to reprimand or warn is taken after the young offender has been charged and brought before the court. The whole purpose of the scheme is to divert young offenders from the criminal justice scheme before they come before the court.

It has become clear, from the submissions of counsel today, that from time to time the police are prepared to reprimand or finally warn a young offender at a later stage than is expressly envisaged in the guidance document. This goes to show, in my view, the flexibility which this system requires. It illustrates that sometimes, for the benefit of the young offender and for the benefit of the public, the police will revert to a reprimand or a final warning at a later stage than is expressly envisaged in the Home Office guidance.

Nevertheless, in my judgment, it is extremely difficult to criticise the police in a case such as this from failing to take what would be a somewhat unusual course. The fact that the offender was charged and then brought before the court before any indication that he might admit his guilt emerged must, on any view, be a powerful factor in favour of proceeding by way of criminal prosecution rather than reprimand or final warning.

A further relevant factor is that the scheme envisages speed in the administration of warnings or reprimands, and the claimant in this case had generated delay by refusing to admit his guilt after having the benefit of legal advice and support from appropriate adults.

In his skeleton argument Mr Mills contends that the failure to administer a final warning by the police was wholly unnecessary, unreasonable and irrational. For my part I would reject that submission. It seems to me that, on any view, the police had a discretion whether or not to administer a final warning in this case. They considered the relevant circumstances. Their decision not to administer a final warning is a decision which cannot be held to be erroneous in law, or one with which this court should interfere.

Mr De Bono made the point in his submissions this morning that if the police, as a matter of course, allow persons to deny an offence in interview, wait until a prosecution is launched and then make an admission of guilt and receive the benefit of a final warning, that would undermine the effectiveness of the final warning scheme. I see force in that submission.

My Lord, Rose LJ, pointed out in argument that the structure of the scheme is to encourage early frankness. When one looks at the statutory provisions and the Home Office guidance document to which I have referred, I would endorse that observation. It is indeed the structure of the scheme to encourage early frankness, and where there is no early frankness by a young offender this is a factor which militates against the administration of a reprimand or a final warning. It is not, of course, a conclusive factor, but it is a matter which the police are entitled to take into account when deciding how their discretion should be exercised.

It should be remembered that under section 65(1)(e) of the 1998 Act, the police officer in question has to consider where the public interest lies. Thereafter, under section 65(2) and section 65(3) the police officer has to exercise a discretion. In the present case the police officers cannot be faulted for the view which they took as to where the public interest lay, or as to the manner in which they exercised such discretion as they had, bearing in mind the absence of any unequivocal admission of guilt by the claimant.

For all these reasons, in my judgment, the second limb of the claimant's challenge to the conduct of the police must fail.

Part 6. The Decision Of The Crown Prosecution Service To Pursue The Prosecution

The claimant attacks this decision as being irrational and wrong in law. It is necessary, at the outset, to have regard to the statutory provisions under which the CPS were operating when they took the decisions which are under attack.

Section 1(6) of the Prosecution of Offences Act 1985 provides:

"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."

Section 10 of the Prosecution of Offences Act 1985 provides for the Director of Public Prosecutions to issue a Code for Crown Prosecutors giving guidance on the general principles which they should apply.

Section 23(3) of the Prosecution of Offences Act 1985 provides:

"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..."

Essentially the claimant is contending that Mrs Gathercole, the senior crown prosecutor, in the exercise of her powers under section 1(6) and section 23(3) of the Prosecution of Offences Act 1985, ought to have discontinued the criminal proceedings against the claimant on some date after 29th January 2003.

The foundation and starting point for this part of the claimant's argument is the memorandum from the CPS to the police, which I referred to in part 2 of this judgment, and a memorandum in response from the police, indicating that they would not be prepared to administer a final warning.

Mr Mills makes the point that Mrs Gathercole specifically recommended that the police should give a caution or final warning in the event that the claimant admitted his guilt. The police were not prepared to follow that recommendation. Accordingly, submits Mr Mills, the CPS should have taken a firm line. They should have insisted that the police follow the CPS's recommendation. In fact, submits Mr Mills, the CPS should have simply discontinued the prosecution, in view of the unwillingness of the police to warn. Mr Mills contends in his skeleton argument that it was unreasonable, irrational and improper for the CPS to continue the prosecution.

In his oral submissions this morning Mr Mills argued, with reference to the CPS memorandum of 24th January 2003, that the CPS had come to the conclusion that a prosecution was not in the public interest. Accordingly they should not have resiled from that conclusion.

I do not accept that submission by Mr Mills. It does not seem to me that Mrs Gathercole, in the memorandum of 24th January or indeed any other document, had reached the simple conclusion that a prosecution was not in the public interest. What Mrs Gathercole was doing in the memorandum of 24th January was recommending that the police consider administering a final warning. Mrs Gathercole was saying nothing in that memorandum about what she would do in the event that the police declined to administer a final warning.

In addressing this limb of the claimant's argument, it is necessary to focus upon the division of functions between different agencies in the criminal justice system. It is the function of the police to determine whether or not to administer a reprimand or final warning. That decision has been specifically entrusted by Parliament to police constables dealing with the offender in question. Of course, the CPS are entitled to volunteer their views, as they did in this case and as no doubt they do in other cases. However, the proposition that the police are obliged to defer to the views of the CPS in this regard is manifestly wrong. The police must exercise their own independent judgment. That is precisely what they did in this case.

Let me now turn to the role of the CPS. If the police decide to proceed by way of reprimand or final warning, then the matter is taken out of the hands of the CPS. On the other hand, if the police decline to proceed by way of reprimand or final warning then the CPS must decide whether or not to prosecute. Of course, the CPS will take into account the views of the police, but there is no obligation upon the CPS to defer to those views.

In the present case Mrs Gathercole was the senior crown prosecutor who took the relevant decisions. She took those decisions in accordance with the guidance given in the Code for Crown Prosecutors, issued pursuant to section 10 of the Prosecution of Offences Act 1985.

Before the first court hearing on 24th January 2003 Mrs Gathercole received the relevant documents from the police and she reviewed the file. It is clear from paragraphs 6 and 7 of her statement that she assessed the evidence. She came to the view that there was a realistic prospect of conviction. She noted that the offence involved a group of young people, and that it was a kind of offence prevalent in the area. She concluded that this was a case against the claimant which merited prosecution. She noted that he was ineligible for a warning or reprimand because he denied his guilt. In reaching this decision Mrs Gathercole was faithfully adhering to the guidance given in the Code for Crown Prosecutors and was applying her mind to the circumstances of the case in question.

On 4th February Mrs Gathercole received a memorandum from the police to the effect that they were not prepared to deal with the claimant by way of reprimand or final warning. After that she had to consider what course to take.

Mr Chukwuemeka, who appears for the Crown Prosecution Service, stated in his submissions this morning that Mrs Gathercole considered the question of whether to proceed in relation to the criminal prosecution on two occasions. She first of all considered the matter on 4th February, having received the memorandum from the police. She subsequently reconsidered the matter on 13th March, after receiving a letter from the claimant's solicitors setting out the reasons why they maintained that there should be no prosecution. In addressing her mind to the question on those two separate occasions Mrs Gathercole was acting entirely properly.

Taking matters quite shortly, she came to the conclusion that the criminal prosecution should continue. Mrs Gathercole explains the reasons for that decision in paragraph 19 of her witness statement as follows:

"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."

The claimant attacks this reasoning process. He submits that the prosecution should have adhered to their original decision that prosecution was not merited. As mentioned previously, I do not accept that the CPS had ever taken an outright decision that prosecution was not merited.

Mr Mills drew our attention to paragraph 6(9) of the Code for Crown Prosecutors. That paragraph requires the crown prosecutor to consider the interests of the youth who is accused, in deciding whether it is in the public interest to prosecute. It seems to me clear from Mrs Gathercole's evidence that she did indeed take into account the interests of the claimant. However, the personal interests of the claimant were not the only matter to consider. Mrs Gathercole had regard to the public interest as well. Overall she came to the conclusion that prosecution was merited.

In his skeleton argument Mr Mills submitted that Mrs Gathercole took into account improper considerations in the reasoning process set out in paragraph 19 of her witness statement. I do not agree. It seems to me that Mrs Gathercole considered all relevant matters and exercised her own independent judgment in accordance with her duty as a crown prosecutor. Save in exceptional circumstances, it is quite inappropriate for this court to step into the shoes of the crown prosecutor and to retake decisions which Parliament has entrusted to the crown prosecutor under the Prosecution of Offences Act 1985.

In R v Chief Constable of Kent County Constabulary and another, ex parte L (a minor) [1993] 1 All ER 756, two juveniles challenged decisions to prosecute them. In the first case the applicant argued that a caution was the proper course. In the second case the applicant argued that no action should be taken at all. This court dismissed both claims. Watkins LJ, delivering the judgment of the court, said this at page 770:

"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."