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Cite as: [2007] EWHC 1261 (Admin)

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		Neutral Citation Number: [2007] EWHC 1261 (Admin)
		CO/263/2007

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

Royal Courts of Justice
Strand
London WC2

9th May 2007

B e f o r e :

LORD JUSTICE MAY
MR JUSTICE GRAY
____________________

	THE QUEEN ON THE APPLICATION OF A	Claimant
	-v-
	(1) SOUTH YORKSHIRE POLICE
	(2) CROWN PROSECUTION SERVICE	Defendants

____________________

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____________________

MR STEPHEN CRAGG (instructed by Messrs Howells, Sheffield S3) appeared on behalf of the Claimant
MR RICHARD PERKS (instructed by South Yorkshire Police) appeared on behalf of the First Defendant
MR STEPHEN WOOD (instructed by Crown Prosecution Service, Rotherham CJU, S60 1RX) appeared on behalf of the Second Defendant

____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE MAY: Mr Justice Gray will give the first judgment.

MR JUSTICE GRAY:

The issue

This is an application by six minors, who were at the material time variously aged between 14 and 16 and who sue by their next friends, for permission to apply for judicial review with the substantive hearing to follow immediately if permission is granted. An order has been made that the identities of the claimants are not to be published. We will refer to them by their initials.

The claimants challenge, firstly, the initial decision of an officer in the force of the first defendant, the Chief Constable of South Yorkshire, made on 16th June 2006 to charge the claimants with criminal offences rather than to give them final warnings, and the subsequent decision not to reconsider the approach which was initially taken. Secondly, the claimants challenge the decision of the Crown Prosecution Service, the second defendant, made on 20th October 2006 as part of its continuous duty of review, to continue with the prosecution of the claimants. The criminal proceedings in the Youth Court have been adjourned pending the outcome of the present application.

The claimants' case is that both defendants failed to make their respective decisions in accordance with the Final Warning Scheme ("the Scheme"), which was issued by the Home Office and the Youth Justice Board pursuant to the Crime and Disorder Act 1998 ("CADA 1998"). In particular it is alleged against the defendants that they failed to follow the additional guidance given in Home Office Circular 14/2006 ("Circular 14/2006"). Annex D to Circular 14/2006 introduced the Gravity Factor System ("the System") which was drawn up by the Association of Chief Police Officers. The System sets out gravity scores, ranging from 1 to 4, for most criminal offences in the calendar. The claimants' case is that a correct application of the Scheme and the System would have resulted in their receiving final warnings rather than with their being charged with criminal offences.

The claimants further contend that the second defendant failed to make decisions in accordance with the Code for Crown Prosecutors ("the Code") and the accompanying legal guidance.

The claimants seek orders that their cases be reconsidered in accordance with the Scheme and the Code respectively.

The defendants now accept that the offences allegedly committed by the claimants, namely criminal damage in the case of each of them, were erroneously given gravity scores of 4 instead of 3, which was the correct score in the circumstances of the case. Absent exceptional circumstances, score 3 offences normally attract a reprimand or final warning. However, both defendants contend that the decisions to charge the defendants and to continue with their prosecutions were made lawfully, principally because of the serious nature of the offending.

Permission granted

Having heard full argument from all three counsel in the case, we have decided that this is a case where permission should be granted in respect of the applications against both defendants. We have treated the argument which we have heard as being the substantive hearing of the applications.

Factual background

The background facts are relatively straightforward and we can take them quite shortly.

On 6th March 2006 youths including the claimants damaged the roof and the seats of a school bus taking them home from Pope Pius X school in Rotherham. Some knives were removed from the school kitchen by one of the youths, namely GS. Mr Stephen Cragg on behalf of the claimants points out that It does not appear that the other children were aware that he had the knives. It may be that he is not correct in that assertion. As will appear the incident was caught on CCTV.

When the bus company contacted the school eight pupils, including the six claimants, were suspending from the school for a period of time as punishment. The damage caused was valued at £5,772 odd including VAT, but this includes the cost of the bus having to be withdrawn from service (said to be ten days at £250 a day, making £2,500 in all). No action was taken in respect of this offending by the first defendant until the start of May 2006.

Those are the bare bones of the incident giving rise to the criminal charges. We have been shown still photographs taken by the CCTV cameras which provide a graphic illustration of what was going on on the top deck of the bus on the day in question. Mr Stephen Wood, on behalf of the second defendant, has taken us through those photographs. They show not only the damage which was being inflicted to the seating and the roof of the bus, but also that knives were being wielded and used to threaten individuals on the top deck. One photograph even shows a knife being thrown across the top floor of the bus. It is accepted by Mr Cragg that this was, on any view, as he put it, bad criminal behaviour.

The facts relating to the individual claimants are broadly similar. They are helpfully recited by Mr Cragg in his skeleton argument. He there refers to assurances or representations said to have been made to the individual claimants, or to their parents or carers by the arresting officer, Police Constable Foster. For reasons which will appear in due course, it is not necessary to go through those facts in any great detail.

However, it is right that we should record briefly the fact that the claimant JA admitted to stabbing a seat once with a knife provided to him by another pupil, which had been taken from the school kitchen, and to causing damage as a result. So far as claimant WB is concerned, he said in interview that he had one of the knives, which was like a chopping knife. He stated that JA, another claimant, passed him the knife and that he, WB, stabbed a seat two or three times making a little tear, as he put it, and then left the knife on the seat. Claimant JC admitted to jumping on bus seats and unsuccessfully trying to bend the top of the seat. He said that he did not have hold of a knife. Claimant LB, the only female claimant, admitted to having hold of a pallet knife which was passed to her by one of the other claimants. She also admitted putting the knife into a cut which had been made in the seat in front of her. Claimant KW admitted to using a spatula knife and to stabbing the ceiling with the spatula knife two or three times and to hitting the back of the seat with the other end of the knife. Finally, claimant GS admitted to being the person who had taken three knives on to the school bus, these being two small chopping knives and a pallet knife. He admitted to having used the knives to stab the ceiling and the seats and to ripping seats.

The claimants were interviewed on 10th, 28th and 29th May 2006, that is over two months after the bus had been damaged. Thereafter, all the claimants were released on police bail.

The six claimants attended the police station on 18th and 19th June 2006. All of them were charged with criminal damage to the value of £5,770 odd, that being the totality of the damage done to the bus. Forms headed "Notification of Reprimand, Final Warning, Summons, Charge" were completed in the case of each claimant. Those forms are included in the papers before us. The circumstances of the offences are in each form described as having been as follows:

"Bus collected pupils from school to take them home. The pupil has been in possession of the knives. These have been handed round the group and used to stab the seats and ceiling. This has caused tears and rips to the seats and marks on the ceiling. The seats have also been bent back. It was all intentional. The school were made aware and the pupils dealt with by suspension."

There are comments made in the forms about the attitude of the young offenders, who are in each case said to have been co-operative. The attitude of the parent/guardian of claimant JA, to take one example, is described as being "very pro police and co-operative". In a later section of the form, the gravity score allocated in the case of each claimant is 4. Against the rubric "Relevant Aggravating/Mitigating Factors" one finds in the case of each of the claimants the following words: "value of damage, political situation re knives at moment, it was in public place, intentional." A reference to "group action" appears to have been added by a different hand.

Bail was continued to the initial court date which was set for 26th June 2006. On that date Ms Sarah Brown of Howells, a firm of solicitors, was at the Youth Court as duty solicitor. The claimant JA was accompanied to court by his parents but was legally unrepresented. Ms Brown accepted instructions to act on his behalf. According to Ms Brown's evidence, the parents told her that PC Foster had told JA that he would be given a warning and that he did not need a solicitor at his interview or at court. According to the evidence of their respective parents or carers, similar assurances were given by PC Foster to the other claimants.

In due course the firm Howells was also instructed on behalf of the other claimants. On 9th and 10th August 2006 letters were written on behalf of the claimants to the CPS requesting that consideration be given to the claimants receiving a final warning. The letters set out the roles said to have been played by the various claimants during the incident when the bus was damaged. The letters also asserted that the cost of the damage to the bus had been overstated.

The Youth Court having in the meantime adjourned the criminal proceedings, the claimants' solicitors notified the CPS (that is the second defendant) of their intention to bring proceedings for judicial review. In her reply to that notification dated 12th October 2006 Ms Diana Goodwill, Senior Crown Prosecutor with the Crown Prosecution Service, said:

"They [that is to say the police officers] have replied that they are not aware of saying anything to your clients that could have given rise to the impression that a final warning would be offered to any of them. The Officers' recollection is that all the potential defendants were advised that the case in its entirety would be referred to the Crown Prosecution Service for formal advice in respect of the charge."

I interpolate that that is not in fact what happened. The letter continues:

"In relation to the issue regarding compensation, the Officer has spoken to Yorkshire Traction. They have confirmed that no photographs have been taken of the damage caused. The company has Third Party Insurance cover for the buses and have not claimed anything."

There followed pre-action protocol letters written by the claimants' solicitors to both defendants.

The first defendant also denied that the assurances relied on had been given by Police Constable Foster and said that the final decision to charge had been made by another officer, namely Inspector Bowles, who had applied the System. The letter set out the key factors relevant to the decision whether to charge, warn or reprimand, namely (a) the young person's offending history, (b) the seriousness of the offence, and (c) whether or not it is in the public interest for the young offender in question to be prosecuted. The letter stated that what had taken the offence over the threshold for charging was the view of Inspector Bowles was that the circumstances of the offence were so serious that a final warning would not be appropriate. The factors which took the offence over the threshold for issuing a final warning were that the value of the damage was high, the offence took place in a public place, it was a group action and was intentional. The political situation surrounding knives, at the time the offence occurred, which included a national knife amnesty, also meant that it was a case in which in the public interest to prosecute.

The present proceedings were commenced on 11th January 2007. The application is supported by the witness statement of Ms Brown, supplemented by the witness statement of a Ms Matthews, who is a paralegal with the solicitors Howells. There are also witness statements from several of the claimants' parents or carers recounting the assurances which they say were given to them or to the claimants by Police Constable Foster.

Witness statements from Police Constable Foster and from Inspector Bowles have been served on behalf of the first defendant. The former categorically denies having given any assurances to the effect that charges would not be brought against any of the claimants, or that the claimants would be told off rather than charged or indeed making any of the other representations relied on by the claimants.

In his witness statement Inspector Bowles says this:

"4. In order to make this decision I adopted a logical approach. I am familiar with S.65 of the Crime and Disorder Act 1998 and the relevant guidance; 'The Final Warning Scheme, Guidance for Police and Youth Offending Teams' and applied this to the situation. I was also aware of the history of the youths and took this into account when reaching my decision.

5. There were a number of aggravating factors that I also took into consideration, namely; the damage was intentional, it was a group action, the offence took place in a public place, the value of the damage was high and the political situation surrounding knives. I was aware that at the time this offence was committed there was a national knife amnesty in place.

6. The value of the damage that had been caused, although [it] could perhaps be open to future challenge, appeared to be high but it was in any event the manner in which the damage was caused, rather than the extent or value of it which was the deciding factor in whether to charge or not. The aggravating factors justified an increase in the gravity score but also made me conclude that at that time and in those circumstances it was in the public interest to prosecute rather than any other form of disposal."

Inspector Bowles accepts with the benefit of hindsight that the gravity score should have been 3 not 4, but says in his witness statement that his decision to charge the claimants would not have been affected by this.

On behalf of the second defendant there is a witness statement from Ms Goodwill to which I will make detailed reference later.

The proper forum

Before turning to the legal framework I will address two preliminary arguments advanced on paper on behalf of the defendants. The first is the defendants' contention that the claimants' proper course would have been to apply to the Youth Court to dismiss or stay the criminal proceedings on the ground that they are an abuse of the process.

On behalf of the first defendant Mr Richard Perks, whose argument Mr Wood adopts on behalf of the second defendant, submits that the proper course would have been to rely on the contentions advanced on the present application in support of such an application to the magistrates. The abuse would, according to the argument, consist principally in the prosecution having been brought after a representation had been made to the claimants (or to some of them) that they would be dealt with by way of a warning. It is submitted that, as things stand, the claimants are in effect inviting the Divisional Court to direct the manner of disposal of a criminal prosecution, which it is said would be wholly inappropriate.

In my view Mr Cragg, on behalf of the claimants, has a short but compelling answer to this submission: it is that the present application raises wider issues of policy which are more suitably dealt with in the High Court. The issues raised are not confined to matters directly affecting the fairness of the trial of these particular claimants in the Magistrates' Court: compare R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42 at page 64. That view appears to have been shared by the magistrates in the present case, since they agreed to adjourn the criminal proceedings in order to enable the present application to be made.

Accordingly, I do not accept that there is any substance in this contention advanced on behalf of the defendants.

The timing of the application

The defendants' second argument is that the claimants' application should be refused on account of the delay in commencing the present proceedings. Mr Perks relies on the fact that the offences were committed on 6th March 2006, yet the claim form in the instant proceedings was not issued until 11th January 2007, some ten months later. I readily accept that an effective youth justice system is one in which offenders are dealt with rapidly and that the delay which has taken place may work contrary to the claimants' own best interests.

Ms Matthews of the claimants' solicitors has made a witness statement in which she sets out in some detail the history of the case and attaches a chronology. She points out that it was over two months after the incident on the bus that the police arrested and interviewed the claimants. She draws attention to the fact that it was not until the CCTV stills were produced on 13th September 2006 that it became apparent to the claimants' defence team that the damage to the bus was, as Ms Matthews suggests, comparatively minor. According to her witness statement, an application was made promptly thereafter to adjourn the criminal proceedings in order for advice to be obtained as to the present claim. Counsel took some time to produce his advice and there were also difficulties because of the varying ages and circumstances of the individual claimants.

Unfortunate though the lapse of time undoubtedly is in a case involving young offenders, it is not in my view so long or sufficiently culpable to justify the summary dismissal of the present application.

The legal framework: CADA 1998

I will address first the challenge which was mounted on behalf of the claimants to the decision of the first defendant to prosecute the claimants rather than to give them warnings. I will deal separately with the challenge made to the decision of the second defendant (the CPS) to continue the prosecution, although much of the legal framework applies equally in both cases.

The legal framework applicable to decisions whether to reprimand, warn or charge is detailed and of some complexity. A helpful summary has been provided to us by Mr Perks. The starting point is the CADA 1998. The material provision of that Act are these:

"37. Aim of the youth justice system

(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.

(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim."

Section 65 is headed "Reprimands and warnings", and subsection (1) is in the following terms:

"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."

There follow subsections (2) to (5) which set out the approach to be taken. I will not recite those subsections, because it is common ground that it was open to the police in the circumstances of the present case to deal with the case by issuing a final warning to the claimants.

Subsection (6) of section 65 provides for the Secretary of State to publish guidance as to the circumstances in which it is appropriate to give reprimands or warnings, including criteria for determining whether an offence is not so serious as to require a charge to be brought and whether an offence is so serious as to require a warning.

Section 66 of CADA 1998, which I do not need to quote, requires a person who has been warned to be referred to youth offending team, which should arrange for a rehabilitation programme in accordance with guidance from the Secretary of State.

Home Office Guidance: the Scheme

In November 2002 the Home Office/Youth Justice Board issued the revised guidance for the police and youth offending teams which is contained in the Scheme. It runs to 25 pages and has substantial annexes. The relevant provisions appear to be these:

"1.1. This guidance provides advice for the police and youth offending teams on the operation of the final warning scheme.

1.2. The principal aim of the youth justice system, established by section 37 of the Crime and Disorder Act 1998 (the 1998 Act), is to prevent offending by children and young people.

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

1.4. 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."

Paragraph 1.7 reads:

"A final warning goes much further than an old style caution. Following a final warning, the police have a statutory duty to refer the young offender to the youth offending team (Yot). The Yot in turn has a statutory duty to carry out an assessment of the young offender and in most cases to provide an intervention programme aimed at preventing re-offending."

Paragraph 1.9 is headed "Current position":

"The scheme has now been in operation for over two years and is proving its worth. The YJB report that 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% of all final warnings should have an intervention programme by 2004."

Later in the Scheme one finds paragraph 4.7, which reflects the criteria which we have already quoted from section 65 of CADA 1998. The following paragraphs set out the "steps" to be taken as part of the decision-making process in which the police are to engage. Step six is to consider "how serious is the offence?" At paragraph 4.21 the guidance describes the Scheme "under which all offences can be given a gravity score of between '1' for the most minor offences and '4' for the most serious." Other factors can aggravate or mitigate the score for a particular offence.

Paragraph 4.23 states that the gravity factors will help in assessing whether a young person should be charged with an offence:

"They reflect the public interest principles in the Code for Crown Prosecutors."

Paragraph 4.24 sets out the police action which is to be taken for offences scoring 1, 2, 3 and 4 respectively. We will not recite those provisions because, as will become clear in due course, they were modified in 2006.

The next section of the Scheme is headed "Public interest considerations". The detailed provisions upon which Mr Perks places particular reliance include the following:

"4.26 A reprimand or final warning may be given only if the police are satisfied that it would not be in the public interest to prosecute.

4.27 Where the option to prosecute has not been ruled out and where there are risk factors present, the police should consider bailing the young person for a Yot assessment to inform the police's decision ...

4.28 The use of bail enables full consideration of the public interest test. The Yot can explore whether all the aggravating and mitigating factors have been identified and correctly applied to the gravity score. It also enables information from victims to be taken into account and the final warnings and interventions to be tailored to the offender and the offence."

I move on now to 17th May 2006 when the Home Office issued Circular 14/2006. That constitutes additional guidance, it is not in substitution for the guidance contained in the Scheme itself. Paragraph 3 of Circular 14/2006 states that the final decision whether to reprimand or warn is still to be taken by the police, but they are encouraged to consult with the CPS where appropriate. I note that this further guidance was in force at the time when Inspector Bowles decided to charge these claimants. However, it had been promulgated very recently and it may be, I know not, that Mr Bowles was unaware of it. Paragraph 8 of Circular 14/2006 contains a paragraph headed "Decision-making" in these terms:

"It is apparent that there is some inconsistency between forces about the circumstances in which they consider it appropriate to administer a reprimand or a warning. The guidance states that the final warning scheme aims to divert children and young people from offending behaviour before they enter the court system. This means that where possible they should be warned, as opposed to prosecuted, if it is appropriate to do so within the terms of the Final Warning Scheme Guidance. However, the proper use of discretion requires that the decision must be reasonable, made on the basis of relevant factors and the questions set out below should be asked in each case ..."

The questions are then set out. They include the question, "How serious is the offence according to the ACPO Gravity Factor System?" That is followed by the following words in parentheses:

"(This also caters sufficiently for the public interest consideration from the police perspective, but the CPS will apply their own test when consulted.)"

Annex D to Circular 14/2006 makes detailed provision for the operation of the System. It starts by setting out what are described as the key factors which will be relevant in deciding whether to charge, warn or reprimand a young person, namely his or offending history and the seriousness of the offence. A further factor is said to be whether or not it is in the public interest for the young offender to be prosecuted. Later on the System deals with the manner in which the gravity score can be upgraded or downgraded by one point according to the presence of aggravating or mitigating circumstances. There follow these words:

"As a result it could be the deciding factor for a particular decision or have no bearing on the decision. It is important for decision makers to ensure that both the 'offence specific gravity factors' and the 'general factors for all offences' are considered for each offence for which a decision is made. This will ensure that the seriousness of the offence, the particular circumstances of it, and the offender's current and previous behaviour are all considered. In every case the consideration given to aggravating and mitigating factors must be noted within the decision recorded."

Later on Annex D refers to the subjective nature of estimates of the value of property and of damage and their unreliability. Under the heading "Final Gravity Score" one finds the action to be taken according to the final score for the offence. Offences scoring 1 require:

"Always the minimum response applicable to the individual offender, i.e. reprimand, warning or charge."

Offences scoring 2:

"Normally reprimand for a first offence. If offender does not qualify for a reprimand but qualifies for a warning then give warning. If offender does not qualify for a warning then charge."

Offences scoring 3:

"Normally warn for a first offence. If offender does not qualify for a warning then charge. Only in exceptional circumstances should a reprimand should be given. Decision maker needs to justify reprimand."

Offences scoring 4:

"Normally result in charge."

(We note in passing that prior to Annex D being promulgated, the action to be taken in respect of offences scoring 4 was "Always charge").

There are then set out in Annex D the factors applicable specifically to the various criminal offences listed including criminal damage, for which the base gravity score is 3. That is all that needs to be said of the legal framework relating to decisions to prosecute.

Conflict of evidence

I start with the stark conflict of evidence which exists between on the one hand the parents or carers of the claimants and the arresting officer PC Foster on the other hand as to whether assurances or representations were given or made by her to the claimants or their parents or carers that the claimants would not face criminal charges. As I have said, the officer denies categorically having given any such assurances or made any such representations. Unsatisfactory though it may be, I feel I have no alternative, sitting in this court, but to assume in favour of the first defendant that PC Foster is correct in her denial. It should however be recorded that the parents or carers (as the case may be) of the claimants, all save one, do assert that she did give the representations and assurances to which I have referred.

Such being the approach which I feel constrained to adopt, it seems to me that the claim made by the claimants based on legitimate expectation cannot succeed.

Challenges to decisions concerning prosecutions

The challenge mounted by Mr Cragg for the claimants to the decisions to prosecute his clients is summarised at paragraph 63 of his skeleton argument as follows:

"In short, although Inspector Bowles asserts that he has acted in accordance with the guidance, closer analysis shows that the 1st Defendant has (1) applied the Gravity Score Factors wrongly (now admitted); (2) failed to consult or consider consultation with the Yot or the CPS over the decision to charge (even though the claimants were bailed for a month and there was plenty of time to do so); (3) failed to consider the individual circumstances of each claimant and their involvement in the offence to inform a decision as to whether different disposals were justified; (4) failed to consider the fact that the final warning scheme is seen as a more effective way of preventing youth offending than is prosecution; (5) wrongly 'double counted' the public interest factors in assessing the case."

Mr Perks for the first defendant points out, correctly, that the courts have historically been reluctant to consider challenges to decisions whether or not to prosecute. He relies in particular on R (Mondelly) v Commissioner for the Metropolitan Police [2006] EWHC 2370, a case which was concerned with police policy as to arrests for possession of cannabis. In that case Moses LJ, having reviewed the authorities, said at paragraph 43:

" It is unsurprising that the courts have been so reluctant to intervene in relation to decisions taken concerning prosecutions and particularly in relation to operational decisions of the police."

In the earlier sections of his judgment, Moses LJ (with whom Ouseley J agreed) had considered a number of the authorities dealing with attempted but generally unsuccessful challenges to decisions taken by police forces whether to prosecute.

Mr Wood, appearing for the second defendant, referred in addition, firstly, to R (F) v CPS and Chief Constable of Merseyside [2003] EWHC 3266 (Admin) where Jackson J, at paragraph 77, said:

"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."

Secondly, Mr Wood relies on the decision of this court in R v Director of Public Prosecutions ex parte C, 6th October 2000, unreported, upholding a decision to prosecute a 15-year-old applicant for road traffic offences rather than divert from prosecution and caution. In giving the court's judgment, Penry-Davey J said:

"It is clear from the case of R v Chief Constable of Kent ex parte L [1991] 93 Cr App R 416 that the discretion vested in the Crown Prosecution Service to continue criminal proceedings commenced by the police is subject to judicial review 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 Crown Prosecution Service is bound to apply where appropriate to the exercise of its discretion to continue or discontinue criminal proceedings. However, as Watkins LJ pointed out in that case, it would be only rarely that a defendant could succeed in showing that a decision was fatally flawed in such a manner as that."

That case involves a decision on the part of the CPS but the comments must apply equally to a decision by the police to commence criminal proceedings.

There are, however, two features of the present case which were absent from the decisions to which I have referred. The first is that the present application is founded not on a departure from policy, but rather upon what is said to be a departure from guidelines laid down pursuant to CADA 1998 and contained in the Scheme and in Circular 14/2006. The second factor is that, unlike Mondelly, this case concerns youth offenders, whose offending CADA 1998 was aimed at preventing: see section 37 quoted above.

The approach which I think it right that the court should adopt in the circumstances of the present case is that it should not intervene unless it is clearly established by these claimants that the decision to prosecute them has come about as a result of a departure from the statutory guidance for which departure there is no rational explanation. Even then, any intervention by this court would be of course discretionary.

Was the decision to prosecute the claimants the result of a departure from statutory guidance for which there is no rational explanation?

It is accepted on behalf of the first defendant that, subject to the guidance contained in the Scheme, it would have been open to the police by virtue of section 65 of CADA 1998 to warn the claimants rather than to prosecute them.

That guidance is, however, according to its express terms, no more than guidance. As is emphasised in the Scheme, it is aimed at preventing offending by children and is said by research to have been effective in achieving that aim. As has been seen, paragraph 4.5 obliges the police to consider a range of factors when deciding which disposal is the most appropriate. Step six of the decision-making process, to which I have referred, stipulates that the action which should normally be taken by the police will depend on the different gravity factors set out in paragraph 4.24. A final warning should only be given if the police are satisfied that it would not be in the public interest to prosecute.

One of the questions which, according to Circular 14/2006, should be asked in each case is "How serious is the offence according to the ACPO Gravity Factor System?" As noted above, the System provides that the action to be taken will depend on the final gravity score, although discretion to deviate does exist in "exceptional circumstances".

Although the allocated gravity factor was 4 in the case of each claimant, Inspector Bowles accepted in his witness statement dated 1st May 2007 that the correct score should have been 3. He explains in his witness statement that he came to score the offending too highly because of what he perceived to be the aggravating features of the case.

I have some difficulty with Inspector Bowles' claim that his decision to prosecute would have remained the same if he had scored the offending correctly. I say that because, if at the time when he took the decision to prosecute he thought that the score was 4, that would "normally" result in a charge. Annex D makes clear that the discretion to deviate from the normal response arises only in "exceptional circumstances". It may be that, before deciding to charge the claimants, Inspector Bowles did not address his mind to the question whether exceptional circumstances existed which would justify charging the claimants. I note that he does not say in his witness statement that he at any stage considered whether the warning procedure might be a more effective way of diverting these claimants from the criminal justice system.

It does not, however, appear to me to follow that the decision to charge these claimants marked a departure from the statutory guidance, still less that there is no rational explanation for such a departure. Whether or not Inspector Bowles applied his mind to the question at the time, we have to ask ourselves whether this was a case where, exceptionally, charges were justified for what should have been allocated scores of 3.

It is unfortunate that Inspector Bowles did not see fit to consult or seek guidance from the CPS before charging these claimants. As will appear, if he had done so, it seems that the CPS in the person of Ms Goodwill would have taken the view that laying charges was appropriate.

Mr Cragg was critical of Inspector Bowles for not obtaining risk assessments from the youth offending team before proceeding to charge the claimants. As to that, Mr Wood, who we understand has considerable experience in the criminal field, told us that this rarely, if ever, happens in the case of young offenders prior to charge.

I remind myself that the decision whether or not to charge offenders, including young offenders, is essentially a matter for the prosecuting authority. This court is, as I have said, always reluctant to substitute its own judgment as to the appropriate course. It will interfere only in clear cases.

In my judgment the incident on the bus was by no means trivial. The aggravating factors identified in the forms which we have referred to were undoubtedly present. True it is that the damage may have been overstated, but it was extensive and resulted in the bus being off the road for a substantial period whilst necessary repairs were carried out.

Despite the fact that these offences should have been scored 3 by Inspector Bowles, I am of the opinion that the decision to prosecute, rather than to warn, these claimants was not a departure from the guidelines to which I have referred. It would not in my judgment have been unreasonable for Inspector Bowles (if he had applied his mind to it) to have concluded that there were here exceptional circumstances which justified charging these young offenders with causing criminal damage. I have in mind, for example, the number of the offenders; the fact that knives were handed round; the extent of the damage; and, perhaps most important of all, the great concern which existed at that time, and still exists, about the prevalence and use of knives, especially by young people. In arriving at that view I derive support from the evidence of Ms Goodwill of the CPS, to which I will shortly come.

The legal basis of the claim against the second defendant

CADA 1998, the Scheme and Circular 14/2006, the material provisions of which I have set out above, apply equally to the CPS in its continuing supervisory role in relation to prosecutions.

According to paragraph 2.5 of the Code it is the duty of Crown Prosecutors to:

"... review, advise on and prosecute cases, ensuring that the law is properly applied, that all relevant evidence is put before the court and that obligations of disclosure are complied with, in accordance with the principles set out in this Code."

Later, paragraph 4.1 says that:

"Each case the Crown Prosecution Service receives from the police is reviewed to make sure that it is right to proceed with a prosecution. Unless the Threshold Test applies, the Crown Prosecution Service will only start or continue with a prosecution when the case has passed both stages of the Full Code Test."

Having addressed the evidential and public interest stages, the Code deals at paragraph 8 with "Diversion From Prosecution". The section is headed "Youths" and it reads:

"8.8. Crown Prosecutors must consider the interests of a youth when deciding whether it is in the public interest to prosecute. However Crown Prosecutors should not avoid prosecuting simply because of the defendant's age. The seriousness of the offence or the youth's past behaviour is very important.

8.9. Cases involving youths are usually only referred to the Crown Prosecution Service for prosecution if the youth has already received a reprimand and final warning, unless the offence is so serious that neither of these were appropriate or the youth does not admit committing the offence. Reprimands and final warnings are intended to prevent re-offending and the fact that a further offence has occurred indicates that attempts to divert the youth from the court system have not been effective. So the public interest will usually require a prosecution in such cases, unless there are clear public interest factors against prosecution."

Paragraph 12.2 of Circular 14/2006 indicates how it is intended that the police and the CPS should interact with one another.

The CPS has issued what is described as "Legal Guidance", which includes a section dealing with youth offenders. This includes two passages to which I should refer. The first appears under the heading "Principles Guiding the Decision to Prosecute". It reads:

"Having applied the evidential test and arrived at the appropriate charge(s), Crown prosecutors should consider the public interest criteria. Primarily this is as set out in the Code For Crown Prosecutors. However prosecutors must also consider what course of action will meet the statutory duty to prevent offending. Prosecutors should ensure that a youth is prosecuted through the courts only where there are clear public interest factors in favour of prosecution."

The second says that:

"Crown Prosecutors should bear in mind that although the ACPO Guidelines are of primary relevance, they are not the final arbiter of whether to proceed or indeed to divert."

The CPS evidence

The first that the CPS reviewing lawyer, Ms Goodwill, learned of the proceedings against the claimants was when she received letters from the claimants' solicitors dated 10th August 2006, to which I have already referred. By that time the claimants had already been charged with causing criminal damage.

The evidence of Ms Goodwill is that she reviewed the case at that time and again on 12th and 18th September. Ms Goodwill has exhibited to her witness statement a file note which she made on 12th September 2006. It needs to be quoted:

"Howells has written a letter in respect of each of their defendants asking that consideration be given to giving them a Final Warning.

This I have considered and feel that it is not appropriate in this case. Each of the defendants has admitted their part in this case. I am not prepared to look at each individual's part but look at this case in the round and the total damage to the bus as a whole.

There are a number of aggravating features. There is evidence of pre-meditation when knives were smuggled onto the bus. [The claimant GS] admits that he had taken the knives onto the school bus and started stabbing seats. These knives were 2 chopping knives and a pallet knife. He admitted that he had them to stab the seats on the bus and that was what he wanted them for. All the other defendants confirm this and their part in either bending the seats back, stabbing or slashing them. Others confirm that they stabbed the roof of the bus.

This is a group action and the totality of the damage should be attributable to them all and not on a piecemeal basis of what they actually admit in interview.

The fact that a large amount of damage has been caused to a Public Service bus that has had to be taken out of action to be repaired, the large amount of damage caused and the cost of repair cannot be ignored.