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
		14th February 2008

1. LORD JUSTICE MAURICE KAY: This case is concerned with whether the two claimants should have been dealt with by way of final warnings for offences of criminal damage or whether they should continue to face prosecution.
2. D was born on 4 July 1990, B on 5 January 1992. Late in the evening of 27 April 2007 they, with two others of similar age, committed acts of criminal damage in relation to four cars parked in a street in Croydon. The substantial damage was caused by jumping on the cars. The four offenders were traced and arrested. They were the worse for drink.
3. At the police station during the night, D and B were arrogant and abusive. However, by the early afternoon of the following day, they had been interviewed and had admitted the offences, albeit after some prevarication in B's case.
4. They were charged and released on bail. The initial estimate of the investigating officer was that the damage to the vehicles was to the value of about £4,000 and that the two older vehicles might have to be written off. The eventual charges valued the total damage at £2,300.
5. Before charging the claimants, the officer in charge, Sergeant Page, had decided that this was not a suitable case for reprimand or final warning.
6. The first listing of the case in the Croydon Youth Court was on 11 May. On that occasion it was adjourned to 18 May for the Crown Prosecution Service to consider whether final warnings might be appropriate. On 18 May it was adjourned again. The case for the claimants is that on that occasion the Crown Prosecution Service advocate, Michael Phillips, expressed himself to the court in terms that have given rise to a legitimate expectation on the part of the claimants that the case would be disposed of by way of final warnings.
7. By the time of the next hearing, on 25 May, the present battle lines were drawn. The Crown Prosecution Service wished to proceed with the prosecution. The claimants said that that would be an abuse of process.
8. There were further procedural hearings before the final hearing on 16 July, at which the claimants applied to stay the proceedings as an abuse of process. That application was rejected.
9. In these judicial review proceedings, for which permission has been granted, the claimants seek to challenge: (1) the decision of Sergeant Page to charge rather than to proceed by way of final warning; (2) the decision of the Crown Prosecution Service to continue to prosecute, notwithstanding the alleged legitimate expectation; and (3) the decision of Croydon Youth Court refusing to stay the further prosecution as an abuse of process.

The statutory framework

10. The Crime and Disorder Act 1998, section 65, introduced a scheme of reprimands and final warnings, replacing the previous practice whereby the police administered cautions in certain circumstances. The purpose is to allow children and young persons who commit offences to be dealt with otherwise than through the court system. The scheme is aimed at those who are first or second offenders, and whose offences are such that it can be said that prosecution is not in the public interest. The hope is that they will mend their ways before criminality has become too embedded.
11. The pre-conditions for resort to reprimands and final warnings are set out in section 65(1) in the following terms:

"(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."

12. The procedure is then detailed in subsections (2) to (5):

"(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) give any reprimand or warning at a police station and, where the offender is under the age of 17, 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."

13. By section 65(6) the Secretary of State was required to publish guidance as to the circumstances in which it is appropriate to give reprimands or warnings, including the establishment of criteria. Under section 66 a person who has been warned is to be referred to a Youth Offending Team for the arrangement of a rehabilitation programme in accordance with the guidance.
14. The Secretary of State has issued guidance under the title "Final Warning Scheme". It states that the scheme aims to divert children and young people from their offending behaviour before they enter the court system. The following provisions in the guidance are material to these proceedings:

"1.6 The final warning scheme introduced a system of reprimands and final warnings for 10-17 year old offenders. Depending on the seriousness of the offence, a reprimand is normally given for a first offence and a final warning for a second offence. If a young person who has been given a final warning commits a further offence he or she must be charged. The only exception is where it is at least two years since the previous warning and the offence is not so serious as to require a charge to be brought, in which case a second warning may be given.

...

4.2 In dealing with any offence committed by under 18s, the police have three options:

• reprimand;

• final warning; or

• charge.

4.3 The 1998 Act requires that a final warning should normally be supported by an intervention programme delivered by the local Yot.

4.4 The final warning scheme is structured and progressive. Depending on the seriousness of the offence, the response will normally be:

First Offence Reprimand

Second Offence Final Warning

Third Offence Charge

4.5 But the police must consider a range of factors when deciding which disposal is the most appropriate."

15. Paragraphs 4.21 describes the Gravity Factor 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.
16. Paragraph 4.24 provides:

"4.24 The different gravity scores, and the police action that should normally be taken in response to them are:

Gravity score Police Action

1 Always the minimum response applicable to the individual offender, ie reprimand, warning or charge.

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.

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

4 Always charge."

17. Paragraph 4.26 then provides:

"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."

18. In addition to the Guidance, there is a Home Office Circular, 14/2006. Paragraph 12.2 of the Circular explains the role of the Crown Prosecution Service in these terms:

"12.2 ... where the police have charged a youth and the Crown Prosecution Service decided that it is more appropriate for the youth to be given a reprimand or final warning, then the youth shall be given a reprimand or final warning if the young offender qualifies for a reprimand or warning under the CDA 1998."

19. There is an Annex D inserted by the Circular into the gravity score scheme. It states:

"Having decided the appropriate offence, the gravity score can only be up-graded or down-graded by one point irrespective of the number of factors present. However, the mere presence of a (+) or (-) factor does not always mean an offence gravity score will be changed. It signifies a specific issue that must be considered by a decision maker, together with all the other matters and, if significant, can change the decision that would otherwise have been made. 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."

20. The Circular then provides:

"Discretion does exist to deviate from the normal response, as indicated above, but only in exceptional circumstances, and such action would need to be justified by the decision maker."

21. The gravity score in relation to offences of criminal damage simpliciter is 2. There is a list of aggravating factors which refers to:

"• Damage deliberate rather than reckless

• Potential of greater danger

• Group offence

• Damage £500+ approx."

In the column for mitigating factors, there is a single reference to damage of £100 or less.

22. At a later stage reference is made to the public interest test for prosecution, and under the heading "diversion from prosecution" it is stated:

"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."

23. To complete the essential picture of statutory and related provisions, I should refer to section 44 of the Children and Young Persons Act 1933 which provides:

"Every court in dealing with a child or young person who is brought before it, either as ... an offender or otherwise, shall have regard to the welfare of the child or young person ..."

24. Of these two claimants, it ought to be recorded that D had a previous reprimand for an offence of possessing cannabis, but B was without previous record, either by way of reprimand or conviction.

1. The case against the police

25. The police decision not to deal with the claimants by way of final warning was taken by Sergeant Page. He has explained his approach in a witness statement. He describes how all four suspects were interviewed by Police Constable Haslett, after which the constable told Sergeant Page that they had all admitted damaging vehicles by jumping on them. He also told the sergeant that none of the four had exhibited any remorse for their actions, either in interview or at any other time in his dealing with them. He told the sergeant of D's previous reprimand. The sergeant in his witness statement says that the normal case disposal would have been to bail both pending final warning, but that in his opinion:

"... this case was exceptional and for that reason I decided that all four ... should be charged with the offence of criminal damage."

26. Sergeant Page then refers to the gravity factor score and the starting point of 2 for offences of criminal damage. He came to the conclusion that the aggravating features in this case were such that the score should properly be 4, even for a first offence. A score of 4 would normally result in prosecution. He gives as his reasons for that view the following:

(1) The fact that incidents of criminal damage are prevalent in Croydon and that as a result offences should be dealt with in a robust manner.

(2) The offenders had acted as a group.

(3) Although he did not have access to photographs of the damage to the vehicles, he relied upon the description given by Police Constable Haslett of the damage, which he had characterised as "serious, thousands rather than hundreds of pounds." The constable had also expressed the opinion that one or two of the vehicles might have to be written off.

(4) It seemed from PC Haslett's description of the behaviour of the offenders, both in interview and their general demeanour in the police station, that they were not in the slightest remorseful regarding their actions.

(5) The damage had been caused deliberately rather than recklessly.

27. In his witness statement Sergeant Page accepts that he was in error in elevating the score from 2 to 4. The reason for that is that the guidance makes clear that even multiple aggravating features should not increase the score by more than one. Accordingly, he states as his current view that the final score ought to have been 3, thereby making the matter one of final warning in a "normal" case.
28. Finally, Sergeant Page states:

"I have reconsidered my decision to charge in view of the above error and accept that the 'starting point' for my decision should have been that of a final warning. With the benefit of hindsight I would accept that whilst there was no requirement to refer the case to the CPS, it would have been a sensible course of action. However this would have been done with my strong recommendation that this was an exceptional case and all four defendants should ultimately have been charged. Three out of four aggravating features from the gravity matrix were present. In addition, this offence is one that is prevalent in the local area and the prisoners demonstrated by their behaviour a complete disregard for the victim's property and showed no remorse for their actions."

29. It is implicit in that that the sergeant was and remains of the view that the public interest required prosecution in this case, as per paragraph 4.26 of the Guidance.
30. On behalf of the claimants, Ms Callinan submits that the sergeant's approach was flawed because he misconstrued or misapplied the guidance and because he did not have a rational basis for departing from it. She criticises him for relying on a subjective and unsubstantiated valuation of the damage to the vehicles and for his reliance on a lack of remorse, an intention to cause damage and the prevalence of similar offences in Croydon. She also complains that he did not consider the interests of the claimants as young persons.
31. I am unpersuaded by these submissions. It is true that the sergeant was in error when he moved the offences up from gravity score 2 to gravity score 4. The Guidance, as supplemented by the Circular, states that the gravity score "can only be up-graded or down-graded by one point irrespective of the number of factors present." Criminal damage simpliciter has a gravity score of 2 and therefore, even with multiple aggravating features, a particular case cannot rise above point 3. However, this by itself does not lead inexorably to the conclusion that the decision of Sergeant Page cannot survive scrutiny in this court.
32. In R (A) v South Yorkshire Police [2007] EWHC 1261 (Admin), (2007) 171 JP 465, the decision of the Crown Prosecution Service was found to be a sustainable one. As May LJ said at paragraph 103:

"Apart from the Crown Prosecution Service, the claim against the South Yorkshire Police would have been stronger. Inspector Bowles made a mistake, which he now accepts, with the gravity score, and his contemporary written record of his thought processes is less extensive than that of Ms Diane Goodwill [the CPS witness]. However, since the eventual decision by the CPS was ... sustainable, Inspector Bowles' decision to the same effect is now shown to have been justified in its result. Even if there were a successful attack on his process rather than his result, there would be no point in quashing his decisions, only to require reconsideration, which would now have to be taken in the light of the Crown Prosecution Service's sustainable decision to continue the prosecutions."

33. That was a specific application of the general approach which had been propounded by Gray J giving the first judgment. He said, at paragraph 65:

"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."

34. And at paragraph 74:

"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."

35. As I shall explain later, I find no flaw in the approach of the Crown Prosecution Service in the present case. In my judgment, that has the same effect on Sergeant Page's scoring error as the sustainable decision of the Crown Prosecution Service in A had on the error of the inspector.
36. The passages from the judgment of Gray J also provide the context in which the other matters raised against the decision of Sergeant Page fall to be considered. I am singularly unimpressed by the criticisms. It was entirely reasonable for the sergeant to act on the information received from PC Haslett, including his estimate of damage to a total value of about £4,000. The fact that the eventual charges put the total damage at a total of £2,300 is nothing to the point. I reject the submission that Sergeant Page was under a duty to defer a decision until he had seen photographs or valuation evidence. That submission is symptomatic of submissions often advanced in cases such as this, whereby it is contended that there was only one way for the police to deal with the matter, namely that postulated on behalf of the claimant. There are often other ways of approaching a matter and such attempts to stifle the discretion of police officers are to be deprecated. The passages I have cited from the judgments in A bear this out.
37. I reach the same conclusion about the criticisms relating to the perceived lack of remorse, and the view that the damage was caused intentionally and not just recklessly. These are matters which were for consideration by an experienced police officer, and I am wholly unable to conclude that Sergeant Page was not entitled to form and maintain the view that he took of them. By the same token, I do not consider that his decision was flawed by his taking into account his experience and knowledge of the prevalence of such offences in the Croydon area.
38. Sergeant Page clearly considered that, notwithstanding that the starting point in the guidance, even with the aggravating features, supported "diversion rather than prosecution", the public interest made final warnings inappropriate in this case. The Crown Prosecution Service came to the same conclusion. I do not consider that there is a basis for this court to interfere with the decision of Sergeant Page.

2. The case against the Crown Prosecution Service

39. Ms Callinan puts the claimants' case against the Crown Prosecution Service in two ways. The first is analogous to the challenge to the police decision, and in principle it runs into the same difficulties. The relevant evidence is provided by Olivia Kong, a Senior Crown Prosecutor. She is the lead persistent young offender specialist in Croydon and the allocated reviewing lawyer in this case. On 24 May 2007 she reviewed the case and endorsed the file in these terms:

"I have reviewed the case in relation to the representation, the value of the damage is lower than £5,000, therefore the gravity score is only 2, however, there [were] multiple cars and complete disregard to other people's property, therefore in view of the seriousness of the offence, the [offenders] should be prosecuted. + no remorse. Discussed the same with RB (Worth)."

40. She then refers to the following day, 25 May, saying:

"I reviewed the case in relation to the amount of the compensation to be applied at court, the file endorsement on the file is as follows: 'compensation calculations: ...

Then four sums are set out, allocated to the four offenders, totalling £625. The reason why that is a much lower figure than the estimated value of the damage is that compensation was calculated simply on the basis of the excesses on the insurance policies of the victims.

41. Miss Kong then states that on 11 June she further reviewed the case and discussed it with a colleague. They both agreed that the case:

"... is too serious to divert even for [B] (no [reprimand] nor final warning). Case to proceed."

It simply cannot be said that that approach was impermissible.

42. The second and main submission is that the claimants had a legitimate expectation that they would not be prosecuted based on what the Crown Prosecution Service advocate, Michael Phillips, had said in court on 18 May.
43. It is axiomatic that to establish a legitimate expectation of this kind a claimant has first to establish a clear representation from which it would be unfair to resile. What is the evidence upon which Ms Callinan seeks to prove such a representation? She relies, first, on the note of the court clerk present in court on 18 May. Under the column "adjournment note" the clerk wrote "for FW to be administered". "FW" is, of course, shorthand for "final warning".
44. Secondly, Ms Callinan claims to derive support from the evidence of Winsome Levy, an inexperienced barrister in her third six-month pupillage, who represented the claimants at court on 18 May. In my judgment, however, Miss Levy's evidence is of no assistance to the claimants. Her witness statement includes these passages:

"The hearing was before D J Calloway and the prosecutor was Mr Phillips. There were two other defendants in this matter. The discussion centred on who was eligible for a final warning and who was not. D J Calloway spoke directly to Mr Phillips and asked him to clarify exactly who he would be recommending to receive a final warning. Mr Phillips stated it would only be [D] and [B]." (My emphasis)

45. Then later:

"D J Calloway then informed my clients that the hearing would be adjourned until 25 May 2007 to confirm that the final warning had indeed been given or that arrangements had been made for it to be given. D J Calloway informed the defendants that they need not attend Court on 25 May 2007 if the final warning had been given."

46. Miss Levy then endorsed her brief with this entry:

"Pros willing to recommend final warning for [D] and [B]." (My emphasis)

47. That in itself falls a long way short of evidencing a clear representation that final warnings were there for the taking. It is, of course, inconsistent with the note of the court clerk. Ms Callinan goes so far as to say that the note and Miss Levy's evidence provide "overwhelming evidence" of a representation leading to a legitimate expectation. They provide nothing of the kind. In view of Miss Levy's account, that is not so much "overwhelming evidence" as an attempt to make bricks without straw. I reject it, even before looking at the evidence of Mr Phillips which has been produced for this hearing. However, when one does look at his evidence it is a trenchant denial of the representation that Ms Callinan seeks to establish.
48. All in all, I find nothing in this ground of challenge.

3. The case against the Croydon Justices

49. On 16 July 2007 the justices rejected an application on behalf of the claimants to stay the prosecution as an abuse of process. The basis of the application was legitimate expectation. Ms Callinan appeared for the claimants. The only account of the proceedings of 16 July in evidential form is that of Ruth Parton, the Crown Prosecution Service advocate. She describes how Ms Callinan opened her application by reference to a skeleton argument, referred to relevant authorities and produced the clerk's note from the hearing of 18 May. She then called Miss Levy, who gave evidence in chief essentially in accordance with the witness statement to which I have referred. According to Miss Parton's uncontradicted evidence:

"Ms Levy was then cross examined emphasising her relative inexperience and her recollection being that [Mr Phillips] 'would be recommending' a final warning for [D] and [B] not that he said that a Final Warning would be administered."

50. One of Miss Parton's submissions to the justices was that at its highest the evidence only established that Mr Phillips would make a favourable recommendation; it did not establish a representation that could give rise to a legitimate expectation. When the justices announced their decision, it was to the effect that "there had been no promise" and that a fair trial remained possible.
51. Pausing there, it must be obvious that Ms Callinan's submission to this court that no reasonable bench of magistrates could have reached such a decision is utterly unsustainable. It seems to me to have been the only decision they could have reached on the evidence. Essentially, that disposes of the challenge to the decision of the justices. However, several subplots have emerged and I should mention some of them.
52. Prior to the abuse of process hearing, the claimants' solicitors wrote to Mr Phillips asking him to give evidence at the hearing as to what had transpired in court on 18 May. Mr Phillips declined. We are told by counsel that there are no means of compelling the attendance of a witness for an abuse of process hearing held in advance of a trial. Miss Parton also spoke to Mr Phillips in advance of the hearing on 16 July. He told her substantially what he has now told this court in his witness statement: that he did not think that there was any purpose to be served by his giving evidence on 18 May. In the event he was not called, although it seems that in her skeleton argument and orally Miss Parton referred to his file note for 18 May. That included the words:

"Crown will consider final warnings. No undertaking or promise by Crown."

However, that file note was not and still has not been formally produced.

53. As Ms Callinan has made clear, she is not alleging bad faith on the part of Mr Phillips or anyone else. In those circumstances, I cannot see what further relevance the absence of Mr Phillips as a witness on 18 May or the informal reference to his file note can have. As I have said, the legitimate expectation claim failed, and was bound to fail, on the material produced on behalf of the claimants.
54. Secondly, the claim form also seeks to challenge the decision of Croydon Youth Court on 16 July not to adjourn the proceedings for such time as would be necessary for their refusal of a stay to be challenged by way of judicial review. In the event, this part of the claim became academic when Butterfield J made an order on an urgent application staying the proceedings in Croydon Youth Court pending completion of the judicial review proceedings. I propose to say no more about this aspect of the case.
55. Finally, in the course of the hearing before us, Ms Callinan latched on to some material in the acknowledgement of service filed on behalf of Croydon Youth Court. She submits that it supports an allegation that the decision of the justices on the abuse of process application cannot stand because of an opinion about the abuse application expressed by the Bench Legal Manager, who was brought into court by the legal adviser to consider a jurisdictional point which has long since been abandoned.
56. Ms Callinan's interpretation of the acknowledgement of service is that, inappropriately, the Bench Legal Manager expressed his opinion to the justices. However, that is not what the acknowledgement of service says. It is clear that he was speaking in the absence of the justices, the persons present being the legal adviser with responsibility for the case and the advocates. There is nothing whatsoever in this last-ditch point. There is nothing to suggest that the proceedings in the Croydon Youth Court were otherwise than fair and proper. There is no reason to suppose that any undue influence or other impropriety was exercised upon the justices.
57. It follows from the earlier and more relevant part of this judgment that I would dismiss the application for judicial review, thereby lifting the stay on the proceedings in Croydon Youth Court, which should now continue as expeditiously as possible.
58. Lest anyone reading this judgment should be wondering what happened to the other two offenders, I can record that, following their pleas of guilty, they were dealt with by way of community sentences.
59. MR JUSTICE WALKER: I agree.
60. LORD JUSTICE MAURICE KAY: Yes.
61. MR HARDY: My Lord, as your Lordships know, I appear for both defendants this morning. I am instructed on behalf of the first defendant, the Metropolitan Police, to make an application for costs. I make that application notwithstanding the fact that the claimants benefited from a representation order, and I acknowledge that the process of detailed assessment and the division of costs is an exercise of some considerable difficulty for the court staff. That may of itself be sufficient to dispose of the application and makes me make the application somewhat hesitantly. It would be inconsistent not to make a similar application on behalf of the second defendant, so I do.
62. LORD JUSTICE MAURICE KAY: Thank you Mr Hardy. (The Bench conferred)
63. Your hesitation was correct. We will not order any costs against the claimants, in view of their age and supposed means. It would be pointless.
64. MR HARDY: I am grateful.
65. LORD JUSTICE MAURICE KAY: They have funding presumably, public funding?
66. MS CALLINAN: Yes.
67. LORD JUSTICE MAURICE KAY: So you want an order for an assessment of your costs.
68. MS CALLINAN: I would be grateful.
69. LORD JUSTICE MAURICE KAY: Thank you all very much.
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