England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		10th May 2005

1. LORD JUSTICE SEDLEY: The respondent to this appeal, Mr Whalley, was charged on an information laid by the appellant, Mr Jones, with an assault on Mr Jones occasioning him actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861: it was, in other words, a private prosecution. The allegation was that Mr Whalley had brought Mr Jones, a railway conductor, to the ground with a rugby tackle, knocking him unconscious.
2. Mr Jones' employers, First North-Western Trains, had reported the matter to the police, who on 7th August 2003 had administered a formal caution to Mr Whalley. By 22nd December 2003, when the information was laid in these proceedings, Mr Whalley had admitted the offence and accepted a written caution in the form used by the Greater Manchester Police. Thereafter, in June 2004, the Chief Crown Prosecutor for Merseyside declined to take over the prosecution and Mr Jones, with the support of his employers, therefore decided to continue with it.
3. It was in these circumstances that the St Helens Justices were invited, on a pre-trial review on 25th October 2004, to stay the prosecution on the ground that it was an abuse of their process to continue with it once the defendant had accepted a police caution for the offence. They acceded to the submission. The question they have formulated for the opinion of this court is whether they were entitled to be satisfied that an abuse of process had occurred. More shortly perhaps, the question is whether they were right or wrong to stay the proceedings.
4. Not all of these facts are contained in the case stated by the justices, but they are accepted by counsel appearing before us, Mr Reevell for the appellant, Mr Mills for the respondent. Counsel have also furnished us with a copy of the caution, which was not annexed to the case stated.
5. It is well established that justices have a power - indeed a duty - to protect their proceedings from abuse, but a power that is to be exercised sparingly. Here the arguments for and against this exercise are briefly these. For the respondent it is said that he had a legitimate expectation, following the administration of the police caution, that there would be no further criminal proceedings. To allow a prosecution to be either instituted or continued, no matter by whom, would both frustrate his legitimate expectation and undermine the entire system of cautioning, which, in regard to children and young persons, has statutory recognition. For the appellant it is said that as a private citizen he has a legal right to prosecute which cannot be taken away from him by the unilateral act of the police in administering a caution over which he had no influence or control. In the absence of any suggestion that the prosecution is baseless or merely vindictive, it cannot be an abuse of process, he says, to proceed with it.
6. The administration of formal cautions is now provided for in relation to children and young persons by sections 65 and 66 of the Crime and Disorder Act 1998. Mr Whalley, although a young man, was not in this age group, but it is argued on his behalf that our decision is capable of affecting the use of cautions under the 1998 Act.
7. The caution administered to Mr Whalley, after recording details of him and of the offence, says:

"A decision has been made that you are to receive a REPRIMAND/FINAL WARNING/CAUTION for the offence of Assault occasioning actual bodily harm for which you were arrested, interviewed or told that you might be reported for summons. You have been interviewed and your admission of the offence has been recorded. This means that you will not have to go before a criminal court in connection with this matter but that a RECORD will be kept of this warning."

No date is given for the offence. The date of disposal - presumably the date of the caution - is given as August 2003, almost three months after the incident and some ten months before the Crown prosecutor declined to take over the prosecution.

8. Among the findings of the justices is that "the record of [the caution] is a criminal conviction". If this were right it would give rise to a plea of autrefois convict; but it is wrong. It is only a statutory warning or reprimand administered to a child or young person which, by virtue of section 66(5) of the 1998 Act, is given the status of a conviction in all future proceedings and which, although we are not called upon to decide this, arguably affords a plea of autrefois convict if a prosecution is thereafter brought or proceeded with. This, it seems to me, affords a material distinction between the statutory procedure and the non-statutory procedure with which we are concerned so far as concerns the possible effect on the acceptance of cautions of knowledge that a prosecution might still follow.
9. It does, however, leave a further cause for concern. The form goes on to give purported information first to juveniles and then to adults. Under the head "Adults" it says:

"WHAT A CAUTION MEANS TO YOU: The record of caution is a criminal conviction which is citable in a court should you re-offend."

It is not the case, and counsel have not suggested that it is, that the record of a caution administered to an adult is a criminal conviction for any purpose at all. No doubt it may be placed among the defendant's antecedents if on some future occasion he is convicted; but that is probably all. If it was sought to introduce the caution as evidence of guilt on a subsequent private prosecution for the same offence (assuming that such a prosecution is not an abuse) it seems to me overwhelmingly likely that the court would exclude it, whether under section 78 of PACE or at common law as an admission obtained by means of an inducement. It remains relevant, however, that, as Mr Mills has submitted, the usefulness of the non-statutory caution procedure may be weakened if the offender is told, as I have no doubt he or she ought to be, or if it becomes generally known, that acceptance of it may prevent prosecution by the authorities but not necessarily by the victim.

10. It follows, in my judgment, that the justices have approached the question of abuse on a false legal premise. This itself is enough to vitiate their conclusion that "The legitimate expectation of the respondent that he will not have to go before a 'criminal court' in relation to the matter for which he is already convicted outweighs the applicant's right to institute a private prosecution".
11. It would be less than helpful, however, if we were to remit the matter solely on this ground for a fresh decision. The arguments which we have heard satisfy me that, on the facts presented to the justices, they had no power in any event to treat the prosecution as an abuse of their process.
12. In Hayter v L [1998] 1 WLR 854 this court (Schiemann LJ and Poole J) had to consider a situation closely similar to the present one. The headnote reads:

"After the defendants committed offences of threatening unlawful violence and assault, the police were of the view that the matter should be disposed of by cautioning the defendants, who were of previous good character and aged 16 at the time of the offences. Each defendant received legal advice, admitted the involvement in the offences, signed a form indicating that a caution did not preclude the bringing of proceedings against him by an aggrieved party, and was then cautioned. A youth court concluded that a private prosecution subsequently brought against the defendants by the victim's father was an abuse of the process of the court and ordered that the proceedings be stayed and the informations dismissed.

On appeal by way of case stated:-

Held, allowing the appeal, that it was not an abuse of process to prosecute a defendant after he had been cautioned by the police unless the particular circumstances of a case disclosed an abuse, and the right to bring a private prosecution, which was subject to a number of procedural limitations, should not be further constrained by the courts; that it was a matter for a court in the exercise of its discretion whether a defendant's admission, which was explicit whenever a caution was administered, could be used against him in a subsequent prosecution, and there was no objection to justices hearing an application to exclude such an admission; and that, accordingly, there was no proper basis for the justices to have ordered a stay of the proceedings, nor was there any unfairness or potential unfairness in the private prosecution."

13. The court placed weight on section 1 of the Prosecution of Offences Act 1985 - the Act which set up the Crown Prosecution Service - which provided that, subject to an exception immaterial for present purposes, "nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply". Poole J, giving the leading judgment, went on to say this:

"The right of private prosecutions is subject to a number of procedural limitations, eg justices' refusal to enter a summons, the Attorney- General's termination of proceedings by entering a nolle prosequi, the Attorney-General's power in relation to vexatious litigants, the Director of Public Prosecutor's power to take over private prosecutions and terminate them, whether by discontinuance, withdrawal or offering no evidence, and refusal of consent where consent is a condition precedent to the institution of criminal proceedings.

Nothing that I have heard in the course of argument here has persuaded me that we should in effect add what would amount to a further category of constraint to this list fitted to cases in which a caution has been issued. Nor, speaking for myself, am I persuaded that there is likely to be a flood of private prosecutions in cases where cautions have been administered should this appeal be allowed. The defendants argue that the offender's admission, explicit in every caution case, could be used against him in a subsequent prosecution, but that is surely a matter for consideration under the court's discretion both at common law and under section 78 of the Police and Criminal Evidence Act 1984."

14. Schiemann LJ recognised the possible impact of the decision on the cautioning process, but concluded that this was "a disadvantage inherent in the law allowing private prosecutions". Moreover, as Beatson J pointed out in argument today, if the respondent is right, the use of unqualified cautions like the present one would extinguish the right of private prosecution in any police area in which it happened to be used.
15. An important difference between Hayter and the present case, however, as Mr Mills rightly points out, is that the form signed by the defendant had included a clear proviso that the caution did not preclude the bringing of proceedings by the aggrieved party. There was no such proviso on the form used here. I say at once that this is, in my view, extremely poor practice and something that requires urgent attention on the part of chief constables whose officers use forms like this; but by itself it cannot make it unlawful or abusive to bring what are otherwise legitimate proceedings. It might well be different if the aggrieved person had been consulted by the police and had agreed that they should administer a caution: to bring or pursue a private prosecution thereafter could much more readily be regarded as an abuse of process. If there is a conviction in a case such as the one before us, I have no doubt that the acceptance by the defendant of a police caution may be pleaded in mitigation of penalty. Manifestly, too, if it is the police themselves or the Crown Prosecution Service, in other words the state in one form or another, which seeks to pursue a prosecution after representing to the accused that they will not, an abuse may well arise: compare R v Croydon Justices ex parte Dean [1994] 98 Cr App R 76. But that is not this case.
16. Here the justices are explicit in recording that it was solely because of the administration and acceptance of a caution that they concluded that there had been an abuse. In my judgment neither this fact, nor the fact that the caution included no proviso, as it should have done, about possible proceedings by the victim, is sufficient to render the exercise of the right of private prosecution an abuse of process.
17. I would therefore allow this appeal and remit the case with a direction to the justices to continue the hearing.
18. MR JUSTICE BEATSON: I agree, and would only add that, in view of the errors in the caution form used by the Greater Manchester Police, it may not be sufficient for individual chief constables to consider the forms of caution that they use and what is stated as to the impact of a caution on an individual, whether adult or juvenile. It would be undesirable for there to be different statements in different parts of the country. It may be that consideration should be given to this by the Director of Public Prosecutions' office in order that guidance can be given as to the impact of a caution and its consequences so that individuals in the position of Mr Whalley are not misled in the way that he undoubtedly has been.
19. LORD JUSTICE SEDLEY: Any consequential matters, Mr Reevell?
20. MR REEVELL: My Lord, I make an application for an order for costs, for which a schedule can be supplied, subject to taxation.
21. LORD JUSTICE SEDLEY: This is out of central funds?
22. MR REEVELL: Yes, but, my Lord, I make it clear it is my intention to discuss with those who instruct me the principle that much of this will serve them well for a period of time and so the application for costs should not necessarily be the total sum, all of which would then fall upon Mr Whalley, it should perhaps represent the particular costs of this particular hearing.
23. LORD JUSTICE SEDLEY: Well, if the award is out of central funds nothing falls upon Mr Whalley, is that right, Mr Mills, or can central funds recoup themselves?
24. MR MILLS: I certainly understood that to be the position, my Lord, yes. I have never come across a situation where a legally aided defendant or respondent in these circumstances is required to pay himself. I believe the funds come out of central funds.
25. LORD JUSTICE SEDLEY: Yes.
26. Do you happen to know whether that is right or wrong?
27. MR REEVELL: My Lord, I phrased it that way simply because, certainly in other costs there is a new costs regime which can on occasions see attempts made to recover that which comes from central funds.
28. LORD JUSTICE SEDLEY: What we are minded to do is give you your costs out of central funds, Mr Reevell, but to add that if any question thereafter arises of recoupment against Mr Whalley it is not to be proceeded with without leave of the court. Is that all right, Mr Mills?
29. MR MILLS: I am very grateful for that indication.
30. LORD JUSTICE SEDLEY: That may protect your client temporarily at least, maybe permanently.
31. MR MILLS: My Lord, I am most grateful for that indication.
32. My Lord, might I raise another issue, one which I raise very tentatively, it is not a position that I have ever been in before, but it does seem to me that this may be an issue that raises an issue of wider public concern.
33. LORD JUSTICE SEDLEY: If you want to go on, you need a question certified as well as leave. I think probably the best thing would be to give you liberty within ten days, say, to submit to the court (a) a question which, if humanly possible, you should agree with Mr Reevell and (b) an application which, if you agree, we will entertain in writing from you as to why we should give permission to appeal to the House of Lords.
34. MR MILLS: My Lords, I am very grateful for that also. I did ask very tentatively because I was not sure how I should ask. Can I just be clear as to what it is that your Lordships require: a written question agreed between my learned friend and myself.
35. LORD JUSTICE SEDLEY: Or, if it cannot be agreed, the question you think we should be asking.
36. MR MILLS: And a written submission --
37. LORD JUSTICE SEDLEY: A written submission upon which Beatson J and I will deliberate, but without the expense of a further hearing.
38. MR MILLS: My Lord, yes.
39. LORD JUSTICE SEDLEY: Are you content with that?
40. MR MILLS: I certainly am, my Lord, yes.
41. MR REEVELL: My Lord, yes.
42. LORD JUSTICE SEDLEY: Thank you. What we will do, having seen your submission, Mr Mills, is either adjudicate on it or, if we need to, call upon Mr Reevell for a written response. We will not say that there has to be an exchange of arguments at the present stage; is that all right?
43. MR MILLS: My Lord, yes, I understand and I am very grateful indeed.
44. Finally, might I ask for taxation of my costs.
45. LORD JUSTICE SEDLEY: If you need it, you have it.
46. MR MILLS: I am very grateful.
47. LORD JUSTICE SEDLEY: Thank you both very much.