England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 December 2015

Mr Justice Supperstone :

Introduction

1. The Claimant seeks to challenge an Adult Caution administered on her by the Defendant on 15 July 2014 for an alleged offence of assault occasioning actual bodily harm ("ABH").
2. Permission was granted by Mitting J in an order dated 31 March 2015 in the following terms:

"It is ordered that the Claimant do have leave to proceed with her application for judicial review of the caution accepted by her on 15^th July 2014 on the single ground that the Police failed to comply with the last sentence of paragraph 76 of the Ministry of Justice Guidance 'Simple Cautions for Adult Offenders' effective from 14 November 2013 ['the Guidance'] in respect of the level of disclosure of documents and/or statements as to the seriousness of the injury suffered by the victim."

3. The last sentence of paragraph 76 of the Guidance provides:

"Offenders and their legal representatives are entitled to seek and have disclosure of the evidence before the offender agrees to accept a simple caution."

4. The essence of the Claimant's case is that the Defendant's failure to make adequate and accurate disclosure of the medical evidence in relation to the seriousness of the alleged victim's injuries makes the caution unlawful, and one that in all the circumstances should be quashed.

The Legal Framework

5. There is no statutory basis for administering cautions, but the process is governed by the Guidance.
6. The Guidance, at paragraphs 75 and 76, provides as follows:

"Consent to Receiving a Simple Caution

75. A simple caution can only be given when the offender agrees to accept it. He or she should not be induced to accept a simple caution in any way and must not be pressed to make an instant decision on whether to accept a simple caution. They should be allowed to consider the matter and if need be, take independent legal advice.

Legal Advice

76. Before administering the simple caution the police officer should ensure that the offender has had the opportunity to receive free and independent legal advice in relation to the criminal offence. The offender's right to legal advice is set out under PACE and must be adhered to. The police officer must inform the offender of the evidence against them and the decision to offer a simple caution. Offenders and their legal representatives are entitled to seek and have disclosure of the evidence before the offender agrees to accept a simple caution."

7. In R v Commissioner of Police of the Metropolis ex parte Thompson [1997] 1 WLR 1519 Schiemann LJ, giving the judgment of the court, stated at 1521:

"So far as the jurisdiction of this court is concerned, it is common ground that judicial review is available as a remedy in respect of a caution; that this court will not invariably interfere, even in the case of a clear breach of the guidelines relating to the administration of cautions, as the availability of a remedy is a matter for the discretion of the court; that police officers responsible for applying the Home Office Circular which sets out the guidelines 'must enjoy a wide margin of appreciation as to the nature of the case and whether the preconditions for a caution are satisfied'; and that it will be a rare case where a person who has been cautioned will succeed in showing that the decision was fatally flawed by a clear breach of the Guidelines. That much is clear from a decision of this court, Reg. v Commissioner of Police for the Metropolis, Ex Parte P (1995) 160 JP 367."

8. More recently Maddison J, with whom Aikens LJ agreed, in Lee v Chief Constable of Essex Police [2012] EWHC 283 (Admin) summarised the law governing applications for judicial review of this kind (at para 15):

"The law in my view can be shortly stated. The court has jurisdiction to quash a caution but only in an exceptional case where a caution is administered in clear breach of the guidelines set out in the relevant Home Office Circular. However police officers responsible for applying the circular must enjoy a wide margin of appreciation of the nature of the case and whether the pre-conditions for a caution are satisfied. Even if there has been a clear breach of the guidelines, the court retains a discretion not to interfere. In each of these two cases [P and Thompson] the caution concerned was in fact quashed, in the former because the person concerned had been cautioned even though there was no evidence of his guilt and he had not made a clear and reliable confession of the offence concerned; and in the latter because the person concerned had been wrongly induced to accept a caution. Plainly each of these cases fell into the exceptional category to which I have referred."

The Factual Background

9. The Claimant was assaulted by Ms Donnelly and a male in the queue at a McDonald's Restaurant in the Strand in London in the early hours of the morning of 26 May 2014. Security guards broke up the fight.
10. After few minutes later, the Claimant who had walked out of the restaurant, came back in. Ms Donnelly was still being restrained by security guards; she was lying on the floor, face down, with her head raised. The Claimant walked towards her and kicked her in the face.
11. After the incident the Claimant was asked to attend Charing Cross police station to give a statement, which she did voluntarily. Shortly after arrival, at 00:42hrs, she was arrested by PC Raichura for the offence of ABH.
12. At 03:55hrs Pc Raichura further arrested the Claimant for GBH (causing grievous bodily harm with intent). Pc Raichura states in his witness statement that he did this after he was informed that the McDonalds CCTV had been viewed and showed that after Ms Donnelly had been restrained

"… Manser then apparently does go up to her and kicks her in the face. I also learnt that the female she had kicked had one missing tooth, and a suspected broken nose."

13. The Claimant was interviewed by DC Lindsay and DC Farmer, commencing at 13:23 on 26 May. Present was also the Claimant's solicitor, Ms Jefferson. The record of the pre-interview briefing (MG6A) given to Ms Jefferson states:

"Your client was arrested… at the front counter Charing Cross police station at Monday 26^th May 2014 at 00:42hrs for ABH.

It is alleged that your client was involved in a fight at MACDONALDS, THE STRAND, LONDON on Monday 26^th May 2014 at approximately 00:15hrs.

Your client has then kicked the victim in the face causing the victim to lose her front tooth, has a split lip and a broken nose.

The incident has been witnessed by police and security guards all of whom have provided a statement and the incident has been caught on CCTV which will be played for you during the interview."

14. During the interview the CCTV was played, after which DC Lindsay asked the Claimant questions about the assault on her by Ms Donnelly, which she answered (see pages 25-30 of the transcript). After that incident the Claimant is seen on the video going to her boyfriend and DC Lindsay asked her further questions as to what happened thereafter. The relevant part of the transcript is at pages 30-32:

"Lindsay: Did you leave McDonald's?

Manser: Maybe for a split second, I think I walked out for a split second and I felt as if I couldn't just walk away from the situation cos of what had just happened. I felt as if it's quite a serious thing so I felt as if I had to stay around and I called the police so…

Lindsay: OK. What made you come back in?

Manser: I just, I don't know, I didn't think. I just walked in.

Lindsay: And what did you do next?

Manser: I remember seeing her on the floor with people trying to hold her down and I remember feeling a lot of pain in my head and seeing a massive clump of my hair on the floor, and feeling battered, that I think out of stupidity and probably anger, I just felt, you know, I kicked her.

Lindsay: OK. So you know you've been very honest and thank you for being honest. So you've admitted that you've gone in there and you've gone in there and…

Manser: Yeah.

Lindsay: …you've just seen her on the floor, after what she did to you earlier…

Manser: Yeah.

Lindsay: …you've seen red and just kicked her.

Manser: Yep. That's exactly what happened.

Lindsay: OK. So you weren't really felt threatened at the time, you were just angry?

Manser: I remember feel, I do remember feeling, I still was feeling threatened cos I've never been in a fight before in my life and I still felt shaky and I still felt threatened by her cos she was still there. And obviously she was being held down cos I did feel like it was all over but it was just a split moment thing that I did. I just felt as if 'how dare you do that to me when I was just standing there?'

Lindsay: How do you feel about it all now?

Manser: I didn't mean to do that to her. I didn't know that I had broken her nose and cut her lip. I did not, I didn't mean to do that. That was not my intention."

15. On 10 June 2014 the CPS decided to offer the Claimant a caution for ABH.
16. On 30 June 2014 the Claimant's solicitors wrote to the Claimant:

"In relation to the medical evidence, DC Farmer has made a point of saying that he is unable to disclose to me whether any medical evidence was ever obtained and that the CPS made a decision for a caution to be administered, he 'cannot go into it any further'. ..."

17. On 8 July 2014 the Claimant went to the police station and looked again at the CCTV footage of the incident. Ms Holmes, her solicitor, attended with her. In her witness statement Ms Holmes wrote:

"My notes show that Ms Manser asked DC Farmer in relation to the other party, 'Do you have medical evidence of her injuries?' My notes show that DC Farmer responded, 'I can't say'. Ms Manser then explained that if she were to admit guilt to an assault occasioning actual bodily harm, then she would want to know what injuries she was alleged to have caused. DC Farmer responded by stating that the police were under no duty to disclosure [sic] this, and they had already provided everything they intend to disclose. My notes do not record the exact words he used."

18. Not disclosed to the Claimant was a "Detained Persons Medical Form" completed by Dr Keane after his examination of Ms Donnelly between 05:10 and 05:20hrs on 26 May 2014. In the box headed "Visual Assessment" Dr Keane wrote "Cut/Abrasion" to the face, and "Bruising" to the mouth. In the box headed "Opinion" he wrote, so far as is material:

"… nose swollen tender but not deviated biklat [bilateral] bloody nostril both lips swollen bruises R upp inner lip abraded … 2x50 p abrasions back R elbow"

19. On 15 July 2014 the Claimant attended Charing Cross police station and accepted a simple caution for the offence of assault on Ms Donnelly on 26 May 2014, thereby occasioning her actual bodily harm.
20. The Detention Log in relation to the Claimant records that a risk assessment was completed (after her arrival at the police station) at 08:44 on 15 July 2014; the booking in procedure was completed at 08:46; at 08:47 it was noted that no further action would be taken in relation to the s.18 offence of grievous bodily harm with intent, the alternative offence (of ABH) being preferred; and the Simple Caution Procedure was administered at 08:55.

The Parties' Submissions and Discussion

21. In her witness statement dated 23 March 2015 the Claimant states:

"11. Following a night in the cells, I was interviewed in the Police Station under caution. Immediately before that interview, I was given a 'record of pre-interview briefing' in Form MG6A. At the time, I reposed complete trust in the Police and I accepted what it said in the 'briefing' as fact, but I now realise that this document contained inaccurate information, which was both highly significant and on which I placed great weight at the time.

(a) At that point I believed, because this is what I had been told by the Police, that I had caused really serious injury to this woman…

…

13. I was later offered a caution, but before I accepted it, I went to the Police Station to look at the CCTV again. The Police told me that my assailant had lost two front teeth. I was concerned enough about that to ask the Police for medical records in respect of her supposed injuries. That request was point-blank refused, which I could not understand if as the Officer was telling me she really had been seriously injured.

14. I still thought that the woman had, as the Police had told me, been really seriously injured by my kick. The Police who had arrested me for grievous bodily harm were saying that it was me that had inflicted these injuries upon her, and they had clearly dismissed any question of self-defence. These were important reasons behind my agreeing to accept a caution; if the injury was serious enough to send me to prison, anything was better than that. This was reinforced in my mind by the Police pre-briefing note that 'the incident had been witnessed by police and security guards all of whom had provided a statement'."

22. Mr Stephen Field, for the Claimant, submits that the Defendant breached and failed to follow the Guidance in a material and significant regard, which has a fatal effect on the lawfulness of the caution administered to the Claimant. The Claimant relied on the disclosure which was made and accepted a caution, not because she admitted guilt, but because she had been led to believe that there was reliable evidence that she had caused injuries of such seriousness that she would go to prison if convicted, an outcome she sought to avoid (not least, having experienced a night in the cells) at all costs. The Claimant, who is now 28 years of age, is a person of previous good character.
23. The Claimant's case, Mr Field submits, falls into the category of exceptional cases (see para 8 above) for three reasons: first, there was no evidence of the Claimant's guilt at the level of ABH attributed to her and in respect of which she accepted the caution; second, she had not made a clear and reliable confession of the offence concerned; and third, she had been wrongly induced to accept a caution by the originally exaggerated and inaccurate disclosure account in the Form MG6A and/or the later information that the alleged victim had lost two front teeth.
24. Mr Robert Talalay, for the Defendant, makes the point, with which I agree, that the last sentence of paragraph 76 of the Guidance (see para 6 above) does not require the disclosure of documents, only "disclosure of the evidence". There was therefore no obligation on the police to disclose the Medical Form completed by Dr Keane.
25. However Mr Talalay accepts that paragraph 76 requires the disclosure of material evidence, which in the present case entitled the Claimant to disclosure of evidence of the injuries sustained by Ms Donnelly. Mr Talalay further accepts that that evidence must be accurate.
26. Mr Talalay acknowledged, in his words, that the description of the injuries in Form MG6A was different from that in the report of Dr Keane in every particular. Nevertheless there were, Mr Talalay submits, no material inaccuracies in the evidence of Ms Donnelly's injuries that was disclosed. Further, even if the court was to find that there has been a clear breach of the guidelines, Mr Talalay submits this is not an exceptional case which would warrant the quashing of the caution.
27. The Claimant was informed in the Form MG6A that she had caused Ms Donnelly (1) to lose her front tooth, (2) a split lip, and (3) a broken nose.
28. Dr Keane does not record that Ms Donnelly had lost her front tooth. However I accept Mr Talalay's submission that there was evidence to indicate that she did. PC Athawes in his witness statement said:

"I saw out of the corner of my eye someone kick the female in the face. I saw blood around the female's mouth and a tooth on the floor. …"

The Branch Shift Manager in his statement said that he saw that Ms Donnelly "had her two front teeth kicked out". PS Golding recorded on the detention log that Ms Donnelly "had lost a tooth". PS Smith recorded on the detention log that Ms Donnelly "claims to have lost a tooth" and "tooth is missing". In a Risk Assessment form completed at 04:00hrs on 26 May 2014 it is recorded that Ms Donnelly said that she had "teeth missing". Finally, although Dr Keane made no note in the Medical Form (see para 18 above) that Ms Donnelly had lost a tooth, PC Raichura, the arresting officer, noted in the "Details of Investigation" at 06:51 on 26 May 2014 that Dr Keane "has stated that she has a suspected broken nose, and one tooth has been knocked out and one false tooth has been knocked out".

29. There are discrepancies in the evidence, but in my view it cannot be said that the reference to Ms Donnelly losing her front tooth in Form MG6A is an inaccurate statement of the evidence.
30. Turning next, to the statement in Form MG6A that Ms Donnelly sustained a "split lip". Dr Keane in the Medical Form refers to abrasions to her right upper lip (see para 18 above). Mr Talalay suggests that the difference between what Dr Keane describes and a split lip in layman's terms is a distinction without a difference. The Branch Shift Manager refers to blood forming around Ms Donnelly's mouth, and PC Athawes refers to Ms Donnelly having "swollen lip and blood all around her mouth". I am not satisfied that there was an inaccuracy in the MG6A in describing Ms Donnelly as having "a split lip"; if there was, in my view it is not significant.
31. The real issue, I think, in relation to the description of injuries sustained by Ms Donnelly is whether the statement in the MG6A that she had sustained a broken nose is accurate. If she had a broken nose, Mr Field observes, one would have expected Dr Keane to have noted that fact in the Medical Form. He did not. Instead he recorded "nose swollen, tender but not deviated, biklat [bilateral] [bloody] nostril" (see para 18 above). However PC Raichura wrote in the "Details of Investigation" record at 06:51 on 26 May 2014 that "He [Dr Keane] has stated that she has a suspected broken nose…". That is consistent with PC Raichura's evidence that part of his reasons for re-arresting the Claimant for the offence of GBH was that he had "learnt that [Ms Donnelly] had … a suspected broken nose" (see para 14 above). On that evidence there was, in my view, a proper basis for re-charging the Claimant with the offence of GBH (see PACE, s.24(2)).
32. Mr Talalay submits that the difference between a swollen, bruised nose with blood running down and a broken nose is minimal. I do not agree. In my view the statement in MG6A that the Claimant caused Ms Donnelly "a broken nose" is inaccurate. The evidence does however support the description of the injury to the nose as amounting to a suspected broken nose, but no more.
33. In summary, I am not satisfied that the Claimant has established that the statements in MG6A that she caused Ms Donnelly (1) to lose a front tooth, and (2) a split lip are inaccurate. I do however consider that the statement that the Claimant caused Ms Donnelly a broken nose to be inaccurate. If the statement had been that the Claimant had caused a suspected broken nose I would not have considered that to be inaccurate on the evidence.
34. The next question is whether the single inaccuracy in the description of Ms Donnelly's injuries as including a broken nose, rather than a suspected broken nose amounts to a "clear breach of the guidelines" (see para 8 above). I am not satisfied that when the evidence of the injuries caused to Ms Donnelly by the Claimant's kick in the face are considered as a whole that there was any "clear breach of the guidelines" (see para 8 above). The Claimant asked for "medical evidence of [Ms Donnelly's] injuries" (see para 17 above). The police considered that there was no obligation to make any further disclosure. They would have been correct in thinking that they did not have to disclose the Medical Form completed by Dr Keane (see para 24 above). They had disclosed MG6A which contained a description of the injuries sustained by Ms Donnelly. Unless they appreciated that the evidence only justified a statement that she sustained a 'suspected broken nose' and not ' a broken nose' (and there is no evidence that they were aware of this inaccuracy) they would legitimately have considered that they had fulfilled their obligations under paragraph 76 of the Guidance.
35. Even I be wrong about that, I do not consider that in circumstances where the Claimant made the admissions that she did and the admitted facts constitute the offence of ABH, and for the reasons set out in paragraphs 36-38 below, that this is an exceptional case where the court should exercise its jurisdiction to quash the caution.
36. The last sentence of paragraph 76 of the Guidance must be read in the context of paragraphs 75 and 76 (see para 6 above) as a whole. The Claimant admitted to returning to the scene where people were trying to hold Ms Donnelly down and kicking her in the face (see para 13 above). Mr Field accepts that the injuries sustained by Ms Donnelly amount to actual bodily harm. The Claimant says that she was acting in self defence, and Mr Field suggests that that is a defence that she could have put forward at trial if she had not accepted, for the reasons she has given, a caution. However Mitting J did not grant permission to argue this ground (see para 2 above, and Ground 2 in Section 5 (Detailed Statement of Grounds) of the Claim Form). I am satisfied that on the facts admitted by the Claimant any potential defence of self defence cannot arise. Further she had ample time to consider whether to accept the offer of a caution for the offence of ABH or not. Before accepting the caution she had the benefit of legal advice.
37. I accept Mr Talalay's submission that the fact that she thought that if she did not accept the caution she might be charged with an offence of GBH cannot amount to an inducement to accept the caution. A caution can properly be offered for a lesser offence even if the police are considering prosecuting for a more serious offence.
38. Further, the fact that the Claimant thought that she might be at risk of more serious punishment if she contested a charge of ABH and was convicted is not to the point. She accepted a caution for the offence of ABH which is the least penalty that she could have received for that offence.
39. Accordingly, for the reasons I have given, this claim fails.