England and Wales High Court (Administrative Court) Decisions

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

		The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		16 November 2016

LORD JUSTICE DAVIS:

Introduction

1. This judicial review claim, brought by claim form received on 29th December 2015, raises a point which is not altogether unfamiliar. It relates to circumstances in which a private prosecution may be pursued in the courts after a simple caution for the same offence has been administered by the police.
2. This claim is, however, made in a rather unusual context. For in the present case the District Judge (Magistrates' Court) has refused even to permit a summons to be issued by the prospective prosecutor. It is a challenge to that decision of the District Judge (Magistrates' Court), communicated by letter of 2nd October 2015, which is raised in these proceedings. In addition, however, the claimant also challenges the prior decision of the police to administer the caution. Permission to bring this claim was granted by Langstaff J on 19th February 2016. He also granted the lengthy extension of time needed to challenge the actual decision of the police to administer the caution.
3. The claimant before us was represented by Mr Andrew Bird. The Magistrates' Court has not been represented. The second defendant, the Chief Constable of Northumbria Police, has been represented by Mr Toby Wynn. The proposed defendant to the private prosecution, who may be styled as "DW", has been joined as an interested party. Letters have been sent to him at his last known address informing him of these proceedings. There may be some doubt, it would seem, as to whether those letters have in fact reached him. At all events he has not responded and he has not been represented before us.

Background Facts

4. The background facts, in summary, are these. The incident which gives rise to the proposed private prosecution relates to the night of 7th and 8th March 2015. Mr Albert Lowden is an employee of the Whitbread Group, working as a hotel manager at the Premier Inn in Gateshead. In a detailed witness statement he has set out what happened that night to so far as he can recall events. He arrived at work on Saturday 7th March 2015 with a view to starting his shift at 10 o'clock that evening. He was working with Mr Goldsmith.
5. At around 3 o'clock in the morning he and Mr Goldsmith were sitting in reception when a man, who had booked into the hotel earlier, arrived at the entrance and was buzzed in. The man said that he had lost his key. He was then let in so that he could go to his room. Shortly thereafter two women arrived at the front entrance of the hotel and they were both buzzed in. They were to say that they had a key but then, when challenged on that, said that in fact they had been given the key "by the guy in Room 25". That in fact was the man who had previously been let in and was in fact DW.
6. In accordance with company policy Mr Lowden would not permit the women to go further into the hotel. DW then came down, clearly having been contacted by the women by phone, and queried the position with the management staff. He claimed that he was entitled to bring these two women to the room. He was told firmly that he was not and that in fact the room had been booked for two men, DW and some other person. The debate then went on and in the event DW and the two women set out to leave the hotel, a taxi having been summoned. The taxi turned up with another car and two further women got out and apparently made something of a noise. Mr Lowden then went out to remonstrate with these women. Then, as he says in his statement this occurred:

"That was the last thing I remember as the next thing I remember was being picked up by the two girls I'd previously just asked to keep quiet and seen getting out of the taxi ... I had no idea what had just happened to me. When I came to they were trying to help get me up. The next thing I recall is seeing blood on my hands which had come from my face. I was in a state of shock."

7. Mr Goldsmith, his colleague, had seen what happened. His statement explained that the man, DW, had come running up to Mr Lowden outside the hotel and had punched him hard, once, in the face, causing Mr Lowden to go to the ground and indeed causing him to be unconscious.
8. At all events the police and paramedics were summoned. They arrived. When the paramedics looked at Mr Lowden they indicated that nothing too serious had been occasioned in the way of injuries. Mr Lowden explains it in his witness statement in this way:

"I explained what had happened to the paramedics and I think Nick [Goldsmith] did the same. Nick told them that I had been knocked out. They did some checks and tests on me and I asked them if I needed to go to hospital. I was informed by the paramedics that my injuries looked fine and it was just a superficial cut on my face. They then left."

9. Mr Lowden goes on in his statement to explain that the police then took a statement from him. Mr Lowden say this:

"I was still feeling groggy. I think I recall telling the police officer I did not want to get the lad into any trouble. I think the police officer told me something along the lines that the chances are that he'll get a caution as he hadn't got any previous convictions. I then went home."

10. DW had initially absented himself from the scene. But commendably he returned and went up to the police and identified himself as the person who had assaulted Mr Lowden. He was arrested on suspicion of committing an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861.
11. When being taken to the police station he was noted by the police as also saying this:

"I admit that I hit the guy. I had a bit too much to drink but I can't blame the drink, I just lost it. We brought a few birds back and he wouldn't let them in. He said 'I don't like your kind in here'. It's no excuse. It's what caused me to react."

12. When they arrived at the police station the custody sergeant was Sergeant McClain. Because of the lapse of time he understandably has little direct recollection of the matter now. But he was able to say in his witness statement what his standard practice is and, as it is said, he had no reason to depart from that standard practice in this particular case. Sergeant McClain was made aware of the circumstances of the alleged assault and of DW's frank admission. Sergeant McClain considered the "gravity scores" contained in appendix L of the guidance issued by the Association of Chief Police Officers, itself reflecting Home Office guidance with regard to charging decisions.
13. By reference to an alleged offence under section 47 of the Offences Against the Person Act 1861 the listed aggravating factors set out in the guidance are these:

"Weapon Used

More than one blow

Attacked while

victim vulnerable or

defenceless e.g.

'on floor'

Unprovoked attack

Nature of the injury

(especially where serious /disfiguring

injury)

Premeditation

Domestic violence

Group action."

Mitigating factors are identified as "Impulsive action, Provocation, Minor injury".

14. As Sergeant McClain noted there was therefore a lack of any aggravating factors in this case, save for the assault being unprovoked. There were mitigating factors in the form of impulsive action and, on the basis of what had been reported to him, minor injury.
15. The final score which would be given for such an offence of assault occasioning actual bodily harm would, for the purposes of guidance, be rated as three. In terms of adult offenders what is recommended is "normally charge as a simple caution ... may be appropriate if first offence."
16. This also has to be put in the context of the guidance issue by the Ministry of the Justice in 2013. Among other things that states at paragraph 8:

"Whether an offence or offender is suitable for a simple caution is an operational decision for the police and in some instances, the CPS ... Annex A provides an overview of factors to consider for whether a simple caution may be appropriate."

17. As to Annex A amongst other things it is a suggested that a simple caution may not necessarily be appropriate for first-time offenders for offending of the present type. This is said:

"Where the offence is serious, for example an indictable only offence more serious either way offence where if prosecuted and convicted the likely sentence would be more than a high

level community order or a period of imprisonment."

18. DW has no previous convictions. Further, Sergeant McClain's assessment, as he has explained, was that, on the information then available to him, if the matter proceeded to court the Crown Prosecution Service would have been likely not to pursue a section 47 charge but would instead have pursued a common assault charge. That in fact would yield a gravity score of 2 under the guidance for which a simple caution is recommended as normally appropriate for a first offence.
19. Given all those circumstances and given also DW's frank admissions he decided to administer a simple caution. DW readily assented to that course and that is what happened.
20. The caution actually signed by DW contains, in the relevant respects, these provisions:

"Details of the offence

Known offender punched IP in the face causing a minor injury, fully admitted the offence when questioned."

21. Paragraph 4 of the standard form, as used by this police force, is headed:

"Implications of receiving a Simple Caution"

The relevant bullet points, 3 and 4 read as follows:

"• If new evidence comes to light suggesting that the offence(s) I have committed are more serious, you might still take legal action against me.

• If there are any victims as a result of these offences, they might still take civil action against me and you might give my name and address to the victims so they can do this."

22. It is not necessary for present purposes to refer to any other parts of the form of caution. It may however be noted at this stage that this form of caution is not in fact in the form recommended in the Ministry of Justice Guidance relating to simple cautions or adults as issued in November 2013. Paragraph 88 of the guidance reads as follows:

"Usually, a person will only be prosecuted for an offence they have already been simple cautioned for if there is a substantial change in the material circumstances, or new evidence comes to light which suggests that the original offence is more serious than previously thought or if the decision to administer a simple caution was wrong. Even where a simple caution has been administered this may not preclude a private prosecution. In addition, the decision to administer a simple caution may be judicially reviewed, either because the proper procedures and relevant guidance have not been followed or because it is claimed that the decision is unlawful, irrational or unreasonable on Wednesbury principles the decision to authorise and administer a caution may be quashed and set aside. If this happens the slate is in effect wiped clean and the case must be reviewed again to decide the appropriate disposal. If the subsequent decision is to prosecute it does not follow that a prosecution for the alleged offence would inevitably amount to an abuse of process. This will be made on a case by case basis. It is unlikely that such action would occur, however in order to minimise the risk of an abuse of process argument, local arrangements should be put in place to ensure that when a simple caution is administered, the person being cautioned is informed in writing that the simply caution may not preclude a subsequent prosecution and that it will not preclude a civil action by an aggrieved party."

That paragraph is included in the part of the guidance headed "Post Issue". However in a previous part of the guidance headed "Processes to Follow", the following paragraphs are included:

"63. Accepting a simple caution has potentially significant implications for an offender all of which must be explained to the offender before he or she is invited to accept it and the simple caution is administered. These are set out below...

72. If after the simple caution has been administered, new evidence comes to light suggesting that the offences(s) committed are more serious, a prosecution may still be brought. Additionally, if the offences(s) involve a victim or victims they might still take civil action or bring a private prosecution against the offender. The police may provide the offender's name and address to the victims if this is necessary for legal action to take place. Further details are at paragraphs 77 -78 of the guidance.

73. It is very rare that these situations will occur, however, the possibility should still be explained to the offender."

23. So matters stood at the time. But there were developments. First Mr Lowden experienced problems with his injury. He went to his doctor. As his witness statement describes it, this eventuated:

"I attended on the doctor that same day, explained what had happened and that I had not been to hospital as the paramedics had advised me that I didn't need to. I also informed the doctor that I had been knocked out. I recall my doctor stated that she was shocked I had not been sent to hospital for a scan as I was knocked unconscious. The doctor carried out some checks on me ..."

Then, pursuant to the doctor's advice, Mr Lowden went to the local hospital. It was also arranged that he should go to the Maxillo-Facial Unit at hospital. Mr Lowden describes what then happened as follows in paragraph 37 of his statement:

"I then went to the hospital that same evening ... I subsequently had stitches both on the outside and inside of the right side of my face. I was also given antibiotics, cream for the infection and a mouthwash. I was advised that the impact of the force of the punch to the side of my face had pushed my cheek against the side of my mouth, a tooth had then caught in the side of my cheek and had torn a small hole right through the side of my cheek which was externally visible. I recall the staff also being surprised that the paramedics had missed all of this when I was initially treated for my injuries."

Mr Lowden was to say that that he still had a small scar on the right side of his mouth and a small scar which was visible on his right cheek. Accordingly, his clear evidence was that the injury was more serious than had been appreciated at the time.

24. At all events Whitbread, the ultimate employer of Mr Lowden, were not content with the outcome of a caution. Mr Lowden agreed. Whitbread in fact have a policy that they will pursue prosecution, if necessary by private prosecution, in the event that the police do not prosecute: their concern being to uphold the safety of their staff. That is official company policy. The policy in fact reads as follows:

"Whitbread will, as a matter of principle, do its utmost to protect all employees from assault, abuse and harassment and will always be prepared to use the full force of the law in order to do so, irrespective of cost ...

In the event that a Whitbread employee is assaulted and the police choose not to prosecute the offender, Whitbread will pursue a private prosecution wherever possible, but only if the employee concerned wishes to the Company to do so."

25. Mr Lowden having agreed, Whitbread accordingly decided, in accordance with company policy, that there should be a prosecution of DW. They accordingly, through their solicitors, applied to the Magistrates' Court for an issue of a summons accordingly. By a decision letter dated 2nd October 2015 the District Judge (Magistrates' Court) declined to issue the summons. The solicitor writing on behalf of the District Judge said:

"The District Judge took the view that it would be unreasonable to do so for the following reasons."

There then follow a lengthy list of reasons but the effect of the reasoning is that the District Judge thought that it was not appropriate that a summons had been issued given that DW had been the subject of a previous police caution which was still extant. It appears that the District Judge, as she assumed, considered that there had been no express warning to DW that he might face a subsequent private prosecution.

26. If so, quite, why any assumption to that effect was made by the District Judge is unclear, since it is to be gathered that there was not before the District Judge the form of caution that had in fact been used. But at all events that was the decision that was reached and it was affirmed by a further letter, sent on behalf of the District Judge, dated 10th November 2015.

The Law

27. I turn then to the law and authorities relevant to this case. The starting point, as it seems to me, is what is set out in section 6(1) of the Prosecution of Offences Act 1985. That, in general terms, retains the right of an individual to institute a private prosecution. That is subject to limitations: not least, for example, the Director of Public Prosecution's right in appropriate circumstances to take over such cases, indeed where appropriate, for example in unmeritorious or vexatious cases, to discontinue them. Nevertheless the broad right to pursue a private prosecution is there as confirmed by statute and thus is not to be constrained by the courts without due cause.
28. In the case of Hayter v L [1988] 1 WLR 854, the Divisional Court (Schiemann LJ and Poole J) held that it was not an abuse process for there to be a private prosecution for an offence of threatening unlawful violence when previously the police had administered a simple caution for such offending. The court rejected an argument that the cautioning procedure, designed to be an effective form of disposal diverting offenders away from the criminal courts, would be subverted if private prosecutions were thereafter routinely to be permitted. The court held that the right to pursue private prosecutions should not be curtailed in this way.
29. That decision however, it is to be noted, was reached in a context of a form of caution in which it had been made explicit that the caution did not preclude the subsequent bringing of either criminal or civil proceedings by the aggrieved party. Nevertheless, the decision undoubtedly, in my view, connotes that in principle a subsequent private prosecution is capable of co-existing with a previous and extant police caution.
30. Likewise, in the case of Omar v Chief Constable of Bedfordshire Police [2002] EWHC 3060 (Admin), the Divisional Court stated that the fact of an earlier caution did not of itself act as a prohibition on a future private prosecution - see at paragraphs 42 and 45 of the judgment of Fulford J, with whom Rose LJ agreed.
31. In the case of Jones v Whalley [2005] EWHC 931 (Admin) the same issue arose. In that case however, unlike the case of Hayter, the signed form of caution expressly stated that the caution meant "that you will not have to go before a criminal court in connection with this matter." The Divisional Court (Sedley LJ and Beatson J) held that such wording did not preclude the bringing of a subsequent private prosecution.
32. The House of Lords however, on appeal, disagreed. It held to the contrary - see [2007] 1 AC 63, [2006] UKHL 41. It was held that the express representation contained in the form of caution used in that particular case had been such as to lead the defendant to believe, if he assented to a caution, that he would not thereafter be prosecuted at all for the offence. He thus had a legitimate expectation to that effect. Accordingly, so long as the caution stood it would be an abuse of process for a private prosecution to be brought thereafter.
33. It may be noted that the House of Lords, although briefly discussing the point, expressed no concluded view on the more general proposition as to whether the right to bring a private prosecution could ever survive the administering of a formal caution which had not been quashed or as to whether it would be an abuse of process to bring a private prosecution in such circumstances.
34. At all events the actual decision in Hayter, although distinguished, was not overruled by the House of Lords. However, in the course of his speech Lord Brown said this:

"... it remains unclear whether, when administering a caution, the police should warn the offenders, as in Hayter v L [1998] 1 WLR 854, 855, that the caution 'did not preclude an aggrieved party from bringing criminal proceedings or a civil action' or, as here, should assure them of immunity from criminal process. To say nothing about the consequences would obviously be unhelpful. Perhaps the best and safest course would be to give the Hayter warning but in modified terms, stating that a caution may not preclude a private prosecution and will not preclude a civil action."

35. Lord Mance in his speech made comments to the like effect. He said this at paragraph 44 of his speech:

"As matters stand, I do not consider that police, when cautioning an admitted offender, should give any unqualified assurance that the person being cautioned will not thereafter 'have to go before a criminal court in connection with this matter'. Rather, I agree with Lord Brown that they should give a warning along the lines given in Hayter v L [1998] 1 WLR 854, but that it would be preferable to give it in slightly modified terms, stating that the caution may not preclude a private prosecution (and will not preclude a civil action) by an aggrieved party. A court before which any such private prosecution is brought will retain a power to stay the proceedings in the event that it concludes that, despite the warning, it would be abusive for them to continue."

36. It therefore is evident that the relevant parts of the guidance issued by the Ministry of Justice in 2013 were designed to reflect those observations. Quite why the standard form of caution used by the local police in the present case did not follow that guidance is unexplained: perhaps inexplicable. It has proved most unfortunate. So that is the legal context.

Disposition

37. Set in that context I turn to the outcome for this case. As I see it there are for these purposes normally three broad situations which can arise.
38. The first situation is where the form of caution, as administered, explicitly states that the offender may, notwithstanding the caution, subsequently face a further private prosecution. That was the situation in Hayter. In those circumstances there would ordinarily be no bar to a subsequent private prosecution; indeed, the guidance issued by the Ministry of Justice in 2013 reflects that understanding. Accordingly, that ought to be the usual situation that a rises: just because it ought to be the case that Police Forces follow the guidance as issued.
39. The second situation is where the form of caution as administered explicitly (albeit contrary to what is indicated in the 2013 guidance), represents that the offender will not thereafter face any criminal proceedings. The decision of the House of Lords in Jones v Whalley is to the effect that in such a situation a subsequent private prosecution will be an abuse of process if the caution has not been quashed.
40. The third situation is where there is no explicit representation made either way when the caution is administered about the potential exposure thereafter to private prosecution.
41. If it is clear, in the present case, that the form of caution used falls neither within situation 1 nor within situation 2. What then has the caution, as applied in this case, represented to DW? In my view, the third bullet point, which I have already set out, includes a representation that the police ("you") will only take further legal action in the event of new evidence coming to light. If there is no such new evidence then the police are affixed with the caution, at all events unless it is quashed or set aside. But no representation is there made in that particular bullet point about the victim ceasing to have the right to pursue a private prosecution whether in the light of fresh evidence or not.
42. As to the fourth bullet point, I would reach the same conclusion. It is quite true that the wording of that bullet point refers to the prospect of the victim still taking civil action (it does not say "legal" action as in the preceding bullet point.) However, I do not think that wording should be taken to read as a positive representation that no criminal proceedings may be brought by the victim. The wording is silent on that particular point. In my view, a victim's right as conferred by statute to bring a private prosecution is, generally speaking, not to be curtailed by silence on the point in the form of caution used.
43. In my view in fact the general position is correctly stated by Sedley LJ in the Divisional Court in Jones v Whalley. At paragraph 15 he said this:

"An important difference between Hayter and the present case, however, as Mr Mills rightly points out, is that the form signed by the defendant had included a clear proviso that the caution did not preclude the bringing of proceedings by the aggrieved party. There was no such proviso on the form used here. I say at once that this is, in my view, extremely poor practice and something that requires urgent attention on the part of chief constables whose officers use forms like this; but by itself it cannot make it unlawful or abusive to bring what are otherwise legitimate proceedings. It might well be different if the aggrieved person had been consulted by the police and had agreed that they should administer a caution: to bring or pursue a private prosecution thereafter could much more readily be regarded as an abuse of process. If there is a conviction in a case such as the one before us, I have no doubt that the acceptance by the defendant of a police caution may be pleaded in mitigation of penalty. Manifestly, too, if it is the police themselves or the Crown Prosecution Service, in other words the state in one form or another, which seeks to pursue a prosecution after representing to the accused that they will not, an abuse may well arise: compare R v Croydon Justices ex parte Dean [1994] 98 Cr. App. R. 76. But that is not this case."

44. I consider that that is a correct general statement, subject always of course to the important point established by the House of Lords that where there is a representation that no further prosecution of any kind will be brought then a private prosecution thereafter is precluded.
45. It follows, in my view, that the form of caution administered in this present case does not and did not preclude a subsequent private prosecution. The District Judge (Magistrates' Court) was, in my judgment, wrong to conclude otherwise. As I have said, I would be prepared to accept that the form of this particular caution would have precluded the bringing of a public prosecution in the absence of new evidence. That was the representation made. But even there I observe, looking at the position as a matter of broad merits, that would scarcely have assisted DW: because in the present case there was new evidence that the injury to Mr Lowden was altogether more serious than had been realised at the time of the incident and at the time when the caution was administered.
46. Accordingly the District Judge had no reasonable ground, in my view, for declining to issue the summons. I am, with respect, particularly surprised that she reached the conclusion that she did when at that stage she was not apprised of the full facts and indeed was not even aware of the precise form of caution as administered. At all events it was an error to conclude that a private prosecution was necessarily precluded by the existence of a prior and extant police caution, at all events in the absence of a specific disclaimer of the kind given in Hayter. I would therefore uphold this claim for judicial review on this ground.

Alternative Argument

47. That makes it strictly unnecessary to deal with Mr Bird's other ground, that is to say that the caution was in any event to be quashed as having no reasonable justification. Obviously if the caution were quashed there would then, on any view, be no bar to issuing the summons. Mr Bird had obvious tactical reasons, keeping an eye on the future, for making such a submission.
48. My own clear view however, rejecting Mr Bird's arguments in this respect, is that in the circumstances as made known to Sergeant McClain at the time it was an entirely reasonable decision on his part to administer a caution. DW had readily admitted the offence. He had no previous convictions. He had consented to the administering of a caution. Whilst it appears that Mr Lowden had not been asked whether he agreed to a caution in advance of it being administered he had at least apparently indicated that he had not wanted to see the lad get into trouble. On the facts as known to Sergeant McClain moreover it was, as I see it, an entirely proper view for him to take that the CPS would probably charge this as a common assault. In any event, even if the injuries, as known, amounted to actual bodily harm as defined in law, as no doubt they did, the guidance still permitted the administering of a simple caution.
49. Mr Bird did not seek strongly to argue to the contrary. However he said that even if that were so still the caution should be quashed, by reason he said of the failure on the part of the police to follow the MOJ guidance and in particular that which is set out in paragraphs 63, 72-73 and 88.
50. True there was such a failure. But, in the circumstances of this case, I agree with Mr Wynn. Such a failure to follow the 2013 guidance was not of a significance such as to require that the caution be quashed. There had, on any view, been substantial compliance with the guidance. In any event, as I have said, the form of caution used, albeit by no means satisfactorily worded, did not convey an explicit representation to the effect that DW would not face a private prosecution.
51. Accordingly I would reject this particular line of argument and I would decline, on the application of the claimant, to quash the caution on this particular basis. I might, however, add that if there is to be a subsequent conviction of DW hereafter then the court will of course be entitled to have regard both to the delay which has occurred in the interim and to the fact that a caution was initially administered in deciding on any appropriate sentence.

Conclusion

52. By way of conclusion therefore I would uphold this claim for judicial review and set aside the decision of the District Judge whereby she declined to issue a summons.
53. Finally I would say this. Most of the problems that have arisen in this case derive from the failure of the local Police Force to adopt a standard form of caution which follows what is sensibly recommended in the 2013 guidance; which guidance is itself clearly based in the relevant respects on the observations of Lord Brown and Lord Mance in Jones v Whalley. There is no good reason for such a failure of which I am aware. Forms of caution used by Police Forces should follow the guidance. But I would go further than that. I find it very hard to see why there is not a common standard form of caution faithfully following in plain and simple language, the MOJ Guidance: that form to be applicable to all Police Forces throughout England and Wales. Someone may care not only to think about this but also actually to do something about it. As it seems to me, inconsistency between local Police Forces as to the terms of the written form of simple caution to be administered serves no purpose whatsoever.
54. MR JUSTICE BLAKE: I agree with both the decisions reached by my Lord in the judgment that he has just given and the reasons that he has given for reaching them. In my view this means that the law, at least at this level in judicial hierarchy is as follows:

1. The existence of a simple caution administered by the police or the CPS is not in itself a bar to a private prosecution being brought.

2. It may be an abuse of process for a private prosecution to be brought if either an assurance was given to a defendant in the course of the caution that there will be no prosecution at all or some other good reason exists. Such an assurance would have to be by way of a positive or express representation as identified in the speeches of Lord Brown and Lord Mance in the House of Lords in Jones v Whalley. I further note that in the case of R Guest v DPP [2009] 2 Cr App R(S) 26, on a similar issue Goldring J, referred at paragraph 51 to an "unequivocal assurance".

3. Part of the reasons given by the District Judge in this case for not issuing a summons were:

"A private prosecution commenced after a police decision to caution for the same offence may by stayed as an abuse."

In my view, where all the grounds for issuing the summons alleging the commission of a criminal offence are made out it would be inappropriate to issue such a summons because it may be an abuse of process. Whether it is or not is more appropriately dealt with in the hearing where the evidence will be led and submissions can be made by all the parties as to the relevant test.

4. A police caution ought to reflect the terms of the reasoning of Lords Brown and Mance in Jones and Whalley and now set not paragraphs 72 and 88 of the 2013 Guidance and it is bad practice, liable to give rise to confusion, if he fails to do so. However, a failure to do so will not of itself render either caution unlawful or the subsequent private prosecution an abuse if there is no positive representation that there will be no criminal prosecution by anybody.

5. In addition to the procedural steps needed before a caution can be lawfully administered, the decision to caution depends on the rational exercise of judgment on the facts known to the decision maker at the time. In determining whether that judgment has been lawfully exercised, both experience of how cases would be charged in practice and an assessment of the gravity of the offence applying the matrix referred to in paragraph 19 of the 2013 Home Office Guidance are relevant considerations. The case law further shows that if relevant considerations are taken into account considerable respect is afforded to the judgment of the decision taken and the test of irrationality that must be met in order to quash a decision on such grounds is a high one.

6. A complainant should be consulted on a decision to administer a caution if practicable, and I observe that it is of great importance that any challenge that is subsequently brought by such a complainant to a decision to caution should be brought promptly so that the person cautioned does not labour under a false misapprehension.