England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		29th July 2016

LORD JUSTICE SIMON:

1. This is the judgment of the court.

Introduction

2. The claimant seeks judicial review of the decision of the Crown Prosecution Service ("CPS") to prosecute her for criminal damage rather than to offer her a conditional caution as an alternative disposal.
3. The material facts relate to an incident which occurred on 5^th May 2015, when the claimant damaged the offside panel and bonnet of a silver Vauxhall Sportive van, and the offside panel of a Smart car, belonging to Daniel Alder, her former domestic partner. The damage was caused by etching the letters "CUNT" into the paintwork of both vehicles. There was also criminal damage to Mr Alder's coat. The total damage was quantified at £3,406.99. The claimant and Mr Alder were no longer living together and there were no children from the relationship.
4. The CPS decided that the claimant should be prosecuted for an offence of criminal damage, contrary to section 1(1) of the Criminal Damage Act 1971.
5. The claimant does not deny the charge. She has admitted it and has paid the sum of the quantified damage.
6. Her case is that, in the circumstances of the case, she should have been offered the opportunity to accept a conditional caution, as defined in Part 3 of the Criminal Justice Act 2003.
7. But for the fact that CPS regarded the offence as falling within a definition of domestic violence (or "DV"), the claimant might otherwise have been conditionally cautioned. Four of the five requirements of section 23 of the Criminal Justice Act 2003 either were or would have been satisfied. The final statutory requirement is that the relevant prosecutor decides that a conditional caution should be given: see section 23(2)(b).

The history and the impugned decision

8. For reasons which remain unclear neither side put in a witness statement explaining the forensic history or how the decision to prosecute rather than to offer a caution came to be made. Nevertheless, most of the decision-making process is either clear or can be deduced from the documents.
9. Mr Alder reported the incident to the police, naming the claimant as the person who had caused the damage, and making wider allegations about her behaviour. On 18^th May 2015 she was interviewed, made full admissions in relation to the criminal damage; and a decision was made by the police to charge the offending as criminal damage. It was noted that the claimant had no previous convictions. On 11^th June her solicitors asked the CPS to review the charging decision on public interest grounds. On 29^th June the solicitors were told that a decision had been made to proceed with the prosecution. On 30^th June Mr Alder appears to have written to complain about the case proceeding, considering that it was a "waste of public funds, etc." We would note that he had already sent a letter to the police saying that he did not wish the case to proceed, having been contacted by mutual friends of his and the claimant.
10. On 7^th July the police wrote to Mr Alder:

"She admitted to what … alleged

In fact she admits it to the point that if it were not DV we would have been able to caution, i.e. she admits it without ambiguity or any defences to why and she showed remorse."

11. On 8^th July Mr Alder made a statement in the form prescribed by section 9 of the Criminal Justice Act 1967, saying that he did not want the prosecution to proceed, but not retracting his account that the claimant had caused the damage.
12. Following this, a number of further letters were written on the claimant's behalf asking for the CPS to review its decision to prosecute.
13. On 11^th August the magistrates adjourned the hearing in the absence of the claimant. The note on the CPS file reads:

"CPS have still not provided written reasons. Prosecutor in court … sends email to CPS as she believes suitable for simple caution now that [compensation] paid, but cannot override decision of grade D. Direction of [Magistrates] that CPS must confirm on next occasion whether they intend to prosecute."

14. In an email dated 19^th August 2015, the District Crown Prosecutor explained the CPS's decision to the claimant's solicitors:

"This matter has been referred to me in the absence of my colleague who determined that this case should go forward. I see the record from the last hearing which required we explain why the case was not dealt with by way of caution/conditional caution.

The police ruled out the former on the grounds that such [a] disposal was disproportionate to [the] circumstances of the offence given its extent/value. The police passed the matter to the CPSD given its domestic character. The reviewing prosecutor did not disagree with that police decision and given that a conditional caution cannot be applied in DV matters authorised the charge.

I see from the papers that Mr Alder has given conflicting views as to the merit of proceeding with the prosecution. I have tasked the witness care officer with speaking to Mr Alder this morning to determine his position in this matter. I am told that he is fully supportive of the case going ahead. I further enquired as to whether any compensation had been paid and if so how much. I am advised that £4,000 has been paid."

15. It is this decision which is challenged. Three points may be noted. First, the crucial words in the present context are "a conditional caution cannot be applied in DV matters". Secondly, there is an issue as to whether Mr Alder was "fully supportive of the case going ahead". Although it is not central to the argument, his statement of 8^th July 2015 said that he was not supportive of the prosecution, although this preceded the information which was said to have come from the witness care officer. Thirdly, the responsibility, or at least the prime responsibility for the decision not to deal with the offending by a simple caution was taken by the police. That decision has not been challenged; the police have not been made a defendant to the claim and the victim has not been made an interested party. This case concerned only the decision on a conditional caution taken by the CPS.

The Regulatory Framework

16. Parliament did not restrict the use of conditional cautions to particular cases, nor did it create any category of offence or offending to which conditional cautions were not to be applied.
17. There are, however, a number of documents which are relevant to the domestic violence constraint which are said to apply to the impugned decision; and it is convenient to identify them at this point.
18. First, there is a document with the title "Conditional Cautioning: Code of Practice and associated annexes" ("the Code of Practice"). The Code of Practice was approved by Parliament as envisaged by section 25 of the Criminal Justice Act 2003; and there was a statutory basis for the Code to include provisions as to "the circumstances in which conditional cautions may be given": see section 25(2)(a). The Code does not exclude offences involving domestic violence from those for which a conditional caution may be administered. Paragraph 3.1 provides:

"Guidance about existing cautions advises the police that, in considering whether an offender should be charged or cautioned, they should have regard to the seriousness of the offence and to the offender's criminal record. The same considerations will apply to Conditional Cautions, and authorised persons as well as relevant prosecutors should apply the principles of the Code for Crown Prosecutors and take into consideration the latest Home Office Circular in relation to cautions, when deciding whether an offence may be suitable for a Conditional Caution. Careful account should be taken of any current guidance in relation to domestic violence and hate crime including homophobic crime and crime involving a racist element."

19. Secondly, there is "The Director's Guidance on Adult Conditional Cautions" ("the Guidance"). The current version of the Guidance (7^th edition, April 2013) is the guidance given to the police and Crown prosecutors by the Director of Public Prosecutions ("the DPP") pursuant to the terms of section 37A of the Police and Criminal Evidence Act 1984. Section 37A(6) permits guidance to "make different provisions for different cases, circumstances or areas".
20. At paragraph 3 there is a heading "Excluded Offences – for which a Conditional Caution may not be offered". Paragraph 3.1 is in the following mandatory terms:

"A Conditional Caution may not be offered for any offence classified as Hate Crime or Domestic Violence, otherwise it may be considered in any case in the circumstances set out below." (emphasis added)

21. The particular circumstances are set out in paragraph 7, but it is unnecessary to describe these further since it is common ground that, were it not that the CPS treated the offence as a crime of domestic violence, a conditional caution would have been considered. Paragraph 15.1.1 sets out the criteria to be applied when deciding whether a conditional caution may be appropriate:

"A Conditional Caution may be appropriate where the decision maker believes that while the public interest requires a prosecution in the first instance the interests of the victim, community or offender are better served by the offender complying with suitable conditions aimed at reparation, rehabilitation, punishment or in the case of a foreign national removal from the jurisdiction."

22. There is no offence of "domestic violence" as such; and the reference to an offence "classified" as "domestic violence" is agreed to be a reference to the last of the three documents.
23. The third document is an 89 page publication with the title "Domestic Abuse Guidelines to Prosecutors" ("the Guidelines").
24. The Guidelines include an introduction:

"Domestic abuse offences are regarded as particularly serious by the CPS.

There is no specific offence of 'domestic violence or domestic abuse'; however, the term can be applied to a number of offences committed in a domestic environment. The domestic nature of the offending behaviour is an aggravating factor because of the abuse of trust involved. Complainants will know and often live with, or have lived with, the offender. There may therefore be a continuing threat to the complainant's safety, and in the worst cases a threat to their life or the lives of others around them."

25. "Domestic violence" is defined under the heading "The Government definition of domestic violence and/or domestic abuse", as follows:

"There is no specific statutory offence of domestic violence and/or domestic abuse – it is a general term describing a range of controlling and coercive behaviours, used by one person to maintain control over another with whom they have, or have had, an intimate or family relationship. Domestic abuse is rarely a one-off incident and is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damage effect on the victim. … The CPS recognises domestic abuse differs in severity between incidents, and more often than not, will increase in frequency and seriousness, having a cumulative impact on the victim/complainant.

…

The Government revised its definition of domestic violence and abuse in March 2013 as:

'Any incident or pattern of incidents of controlling coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality.'

This can encompass, but is not limited to, the following types of abuse:

1. psychological

2. physical

3. sexual

4. financial

5. emotional"

26. There is also a heading "The impact and dynamics of domestic abuse". It reads:

"The broad definition of domestic abuse means that the dynamics and forms of how abuse takes place will also be broad; and as such, prosecutors should focus on the specific facts of each case when reviewing the case and their charging decision."

27. Later, the Guidelines address the question of cautions and conditional cautions. In relation to cautions (sometimes referred to as "simple cautions"), the police are advised to consider carefully whether these should be offered in domestic abuse cases. It is said that the separate Guidance on Simple Cautions for Adult Offenders should be considered:

"This is because such cases involve a breach of trust and are unlikely to be the first offence … If the evidential state of the Full Code Test is satisfied, it will rarely be appropriate to deal with a domestic abuse case by way of simple caution … where a positive action policy has been adhered to, the complainant does not support a prosecution, and the available evidence … would only disclose a very minor offence, the police will consider a simple caution in preference to a decision to take no further action."

28. However, as far as conditional cautions are concerned, the Guidelines remind the reader of the clear terms of the Guidance:

"As stated in the DPP's Guidance on Adult Conditional Cautions, domestic abuse cases must not be considered for conditional cautioning."

29. The Guidance notwithstanding, domestic abuse cases are being considered by the CPS and the relevant Police Services for a form of conditional caution in some areas, as part of a wider pilot study of conditional cautions to see if they could be applied in such cases. The study aims to test the sort of conditions that can be imposed effectively, the measures that need to be in place to show that the disposal is appropriate, the skills that the police need to develop in order to assess the true attitude of the offender and victim, and the extra resource implications of such disposals.

The Parties' Submissions

30. For the claimant, Mr Caldwell submitted that the widely embracing definitions of domestic violence contained in the Guidelines, coupled with a prescriptive injunction in the Guidance against offering conditional cautions in all such cases, amounted to an unlawful fetter on the power to offer conditional cautions contained in Part 3 of the Criminal Justice Act 2003 and the Code. He argued that a policy that a particular class of case should be excluded from the exercise of a decision maker's discretion was unlawful, since it did not allow for any consideration of individual circumstances. In the present case, the circumstances of the claimant and the offence were such that it was an unreasonable exercise of the prosecutor's discretion not to offer a conditional caution.
31. Mr Barry, for the CPS, accepted that the Guidance and Guidelines were "not very flexible", but argued that there were good policy reasons for that. Although the scheme of conditional cautions envisages a commendable form of restorative justice, in cases involving domestic violence other policy issues are engaged. The nature of such cases makes restorative justice, a crucial element in a conditional caution disposal, unsuitable. The pilots have not yet led to a decision as to the resources, skills and procedures which might be required for conditional cautions to be available as an out-of-court disposal in domestic violence cases. Where Parliament has left it to the Director of Public Prosecutions to decide prosecutorial policy, it is not for the courts to decide what the policy should be or how, and at what level of detail, it should be expressed: see R(E), R(S and R) v DPP [2012] 1 Cr App R 6. He also reminded the court of the often repeated statements of principle, that it is for the DPP and not for the courts to decide who should be prosecuted or not prosecuted.

Consideration and Conclusion

32. Section 25 in Part 3 of the Criminal Justice Act 2003 provides for a code of practice concerning conditional cautions to be laid before Parliament. Section 25(2)(a) provides that the code of practice may include provision as to the circumstances in which conditional cautions may be given.
33. There is nothing in the Act or in the Code which precludes the availability of conditional cautions in cases of domestic violence or abuse. That prohibition comes only from the passages in the Guidance and the Guidelines set out above, in which the language is emphatic, prescriptive and clear: where an offence is "classified" as domestic violence a conditional caution may not be offered.
34. There are plainly good reasons for defining domestic violence broadly for the purpose of identifying the underlying harm, culpability, and risk to actual and potential victims, from the commission of particular offences. The Guidelines contain a comprehensive analysis of these factors, and how and why a crime may be viewed as domestic violence and what the implications of this may be. However, the breadth of the definition of domestic violence gives rise to a different problem: all such offences will be regarded as falling outside the conditional caution regime. There is nothing in Part 3 of the Act or the Code which justifies this exclusion. The Code refers to "careful account" being taken of current guidance, but that is not sufficient to justify the application of a mandatory rule. Nor does the language of the Code support a mandatory exclusion of conditional caution from domestic abuse cases: a mandatory rule requires obedient application, not "careful account" of it being taken.
35. Prosecutorial judgement is clearly a matter for the DPP: see R(E), R(S and R) v DPP, referred to above; and the courts are unwilling to interfere with individual decisions either to prosecute or not to prosecute. The grounds on which such a challenge can be successfully advanced are narrow, not least because the courts recognise the constitutional significance of the independent role of the CPS in deciding these matters: see, for example, L v DPP and Commissioner of Police for the Metropolis [2013] EWHC 1752 (Admin); 177 JP 501. It is for the prosecutor to decide if the evidential and public interest tests are met. If dissatisfied by the decision, a defendant's remedy is to seek to persuade the trial court that the prosecution is an abuse of process. Otherwise, the defendant must stand trial, and win or lose on the evidence. A challenge to the decision to prosecute by way of judicial review is only permissible in this case, as both sides accepted, because the underlying nature of the challenge was to the lawfulness of the DPP's Guidance, particularly as set out in paragraph 3.1 (referred to above) and as reflected in the Guidelines. The decision as to whether the Guidance and Guidelines are lawful in that respect obviously leads to an issue as to their interpretation, and whether they have been correctly interpreted by the CPS in the present case. However, this case is not about the lawfulness of their application; that would be for an abuse argument.
36. As Mr Barry rightly accepted, the Guidance and Guidelines have created what is treated by the CPS as an inflexible rule; and he submitted that it was justified by the resource implications, the skills required and the development of skills to be adopted, with the flexibility existing in those areas where the pilots were being tested.
37. It is a well-established principle of public law, not in issue before us, that a policy should not be so rigid as to amount to a fetter on the discretion of the decision maker: see, for example, R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 1 AC 245, Lord Dyson at [21]. The policy-maker otherwise exceeds the discretionary powers accorded to him by statute.
38. This principle ensures that decision makers do not exceed their statutory powers; and it enables two legitimate concerns of public law to be kept in balance: the first, the importance of certainty and consistency; and the second, the importance of responsiveness to particular circumstances.
39. In R v Home Secretary, ex parte Venables [1998] AC 407, at pages 496H-497C, Lord Browne-Wilkinson described how these principles are kept in balance:

"When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v Port of London Authority, ex parte Kynoch Ltd [1919] 1 KB 176; British Oxygen Co Ltd v Board of Trade [1971] AC 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5^th ed. (1995), pages 506 et seq, paras 11-004 et seq."

40. It follows that were the Guidance and Guidelines interpreted as precluding a conditional caution in each and every case which falls into the largely self-determined category of domestic violence cases, it would constitute an unlawful fetter on the prosecutorial judgement of the DPP and the CPS.
41. We have already referred to the less prescriptive language of the 2003 Act and the Code. The language of section 37A(6) in relation to the DPP's Guidance is apt to confer a general discretionary power which applies in certain cases, circumstances and areas, but it does not permit the exclusion of all discretion. Far clearer language would be required to achieve that end.
42. Nor does the justification for such an approach stand up to much scrutiny. The pilot schemes which have been in existence since 2012 in which a form of conditional caution (described as conditional caution plus) has been an available form of disposal in some police areas for domestic violence cases shows that the Guidance and Guidelines are not in fact interpreted by the CPS as inflexible.
43. It is not necessary to interpret the Guidance and Guidelines in so inflexible a way as to make them unlawful, particularly as the DPP does not herself interpret them in that way, as the pilot schemes show. They must be interpreted as including, by necessary implication, words which permit of exceptions. Outside the wider exceptions represented by the pilot schemes, there is every reason to interpret them, reflecting the limited scope for exceptions, as containing at least the same language as is found in the guidance for simple cautions in domestic violence cases: namely, as rarely appropriate where the evidential test is satisfied. The offering of conditional cautions of itself will bring into play additional factors, such as the effect of a condition on contact between the victim and the defendant.
44. For this reason it seems to us that there is no question of declaring the policy unlawful, and nothing in this judgment should be taken as undermining the general approach to cases of domestic violence set out in the Guidance and the Guidelines. It is plain that those who have drafted these documents have thought very carefully about how to address a serious social problem. In most cases the application of the policy in the Guidance that a conditional caution may not be offered in cases of domestic violence will be entirely appropriate. However, there may be exceptional cases where a different outcome should be considered and where the exercise of the discretion may result in the offer of a conditional caution.
45. It is clear, however, that the decision maker in the present case has interpreted the Guidance as possessing no flexibility at all, and as permitting no exceptions. It follows that no consideration was given to whether a conditional caution might as a rare exception be offered. That decision was based on what we have concluded is a misinterpretation of policy. The decision to prosecute, therefore, falls to be quashed, and a further decision must be taken, recognising that the Guidance does permit of exception.
46. It is of course impossible for us to say what the outcome of that further consideration should or will be. That will be for the decision maker in the exercise of a discretion in what are likely to be a very small number of cases. What we can say is that Mr Caldwell has persuaded us that it is possible that the decision maker, aware of the existence of a discretion, could decide that this case was one of the rare exceptions where a conditional caution should be offered. There are many circumstances to be considered, not least the true attitude of the victim, the effect of the payment of compensation, which would have been the obvious primary restorative requirement, resource costs, and the desirability of an out-of-court disposal to avoid any unnecessary criminalising of a defendant. There are also other factors in this case to which it is unnecessary to refer.
47. Although the types of cases in which the discretion might be exercised was canvassed during the argument, it is not for this court to articulate general principles, beyond observing that the Guidelines themselves identify the type of case which may properly be regarded as at the margins in terms of the harm and culpability identified in the Guidelines. It will be for the DPP to decide whether the expression of the discretion requires further elaboration and, if so, in what terms.
48. Although the decision not to offer a simple caution is one, at least primarily, for the police and has not been challenged here, this judgment does not mean that it is not open to the police or the prosecutor, as appropriate, to reconsider that decision as well.

Conclusion

49. Accordingly, we quash the decision contained in the email of 19^th August 2015, and require the CPS to reconsider its decision on the prosecution decision in the light of this judgment. We invite the parties to agree on the form of order which should be made in the light of this judgment.