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 WC2A 2LL
		1 February 2017

LORD JUSTICE TREACY:

1. In this case the claimant seeks permission to challenge the defendant's decision of 3 May 2015 to impose a conditional caution upon him for an offence contrary to section 4A of the Public Order Act 1986. At the heart of the claim is an assertion that the caution was not made in compliance with the terms of section 23 of the Criminal Justice Act 2003 and the Ministry of Justice's Code of Practice for Adult Conditional Cautions effective from January 2013.
2. The claimant has lodged witness statements describing what happened on the night in question. The defendant has served evidence comprising witness statements from police officers. The contemporaneous documentation relating to the claimant's detention at the police station and the administration of the caution are also in evidence before the court.
3. The claimant's statement puts in issue a very large number of matters. He claims not to have been told why he was being arrested either at the time or on arrival at the police station. He denies the commission of any alleged offence and asserts that his arrest was unlawful. As to the administration of the caution, the claimant denies having had a chance to read the contents of the electronic pad bearing the terms of the caution and denies making any admission of having committed the offence. Further, he claims he had not been advised at the police station of his rights to obtain independent legal advice or of the terms and implications of accepting a conditional caution.

4 All of those matters are in stark contrast to the evidence put forward by the defendants who contend that there was a lawful arrest followed by a lawful detention and then by a properly and lawfully administered conditional caution. The caution had properly been accepted by the claimant and matters had been dealt with in accordance with the statute and the Code of Practice.

4. A judicial review application or hearing is not normally the appropriate forum for deciding disputed issues of fact. If either party, unusually, wishes to cross-examine the other party's witnesses on the written evidence put forward an application must be made to the court. The single judge in adjourning the matter for listing before us as a rolled-up hearing at the end of 2015 noted that there were clear factual disputes and that there had been no application for cross-examination. There has been no subsequent application for cross-examination. Accordingly, where there are factual disputes I consider that the appropriate course is to resolve them in the defendant's favour: see R (on the application of Al-Sweady and Others) v Secretary of State for Defence [2009] EWHC 2387.
5. Mr Ollennu, who represents the claimant, made submissions this morning that the court should go behind that approach based on certain anomalies in the documentation. Having considered those submissions, they do not displace the conclusion to which I have come, namely that any factual dispute should be resolved in the defendant's favour.
6. Approaching the matter on that basis, the primary facts, therefore, for the purposes of this hearing are as follows: at about 02.20 hours on 3 May 2015 police officers attended a bar in the centre of Loughborough after reports by door staff of problems with a male. The claimant was agitated and appeared to be under the influence of alcohol. The officers saw the claimant shouting, "Fuck you" at door staff. He was advised not to swear. In addition to door staff outside the premises, the town was busy and other members of the public were present and able to see and hear what was happening. Officers took the claimant to one side near a bus shelter. He would not listen to the police, who wanted to know what had happened. It was established that the door staff did not wish to make a complaint and the claimant was told that he could leave. Instead of walking away, the claimant began do swear and shout, "Fuck you. Fuck off, prick." The claimant was warned about his language but continued to swear very loudly. There were still many members of the public around. In the light of this a PC Gray told the claimant that he was under arrest on suspicion of an offence contrary to section 5 of the Public Order Act. A difficult arrest then took place with resistance from the claimant.
7. On arrival at the police station the appellant behaved unco-operatively and was taken to a cell without full completion of formalities. Visits during the night showed the claimant asleep in his cell. At 09.05 the following morning the claimant was co-operative and answered medical and risk assessment questions. The custody record shows that he confirmed that he did not require anyone to be informed of his arrest and that he declined the offer of legal advice. At 09.12 the claimant was provided with a copy of codes of practice which he had requested at 09.05. At 09.39 Inspector Edwards visited the claimant and reminded him of his right to free and independent legal advice. According to the Occurrence Summary Review at about this time the claimant was completely remorseful and admitted "the offence".
8. Police Sergeant Des-Chanelle decided that a conditional caution was appropriate for this claimant who was aged 23 and had no previous convictions or cautions. A Supervisor Finalisation Report records the following rationale for disposal:

"Evidential test:

I have reviewed all available evidence relating to this matter

- Officer statements

- Record of interview with D/P."

"Circumstances:

Defendant shouts and swears in a public place - witnessed by officers and arrested after failing to cease behaviour/conduct.

Defendant is interviewed and admits offence.

Based on the above there is sufficient evidence to anticipate a realistic prospect of conviction, should a charge to court be considered."

Then: "Public Interest Test". I can summarise this section of the report by saying that the officer recorded that he had considered the nature of the offence and the previous good character of the claimant so that an out of court disposal was appropriate.

This section records the following:

"The defendant has fully admitted the offence and officers' evidence corroborates allegation."

9. A conditional caution was administered. It included a condition not to be drunk in a public place in the following two months. Sergeant Des-Chanelle noted that the claimant had accepted the caution and, "...is aware of what the implications are."
10. The custody record shows that the caution was administered for an offence contrary to section 4A of the Public Order Act 1986, rather than for the section 5 offence for which the claimant had been arrested. The claimant signed on the electronic pad under the wording, "I admit the offence(s) for which I have received a conditional caution." That was followed by a recording of the fact that a caution had been agreed and the claimant signed a second time underneath a caption saying, "I have read and understood all of this information and agreed to accept a conditional caution for the offence(s)." The information referred to related to the condition attached to the caution.
11. We have also seen a Conditional Caution document in which the terms of section 4A are fully set out. The claimant has signed beneath that statement admitting the offence. He records an understanding of the right to free, independent legal advice. He has also separately signed beneath a declaration recording a number of matters, including the fact that a record of the caution would be kept and that in future the caution might be disclosed to certain potential employers or in connection with any future criminal proceedings. Within a short time the claimant's parents and then a solicitor wrote to the police disputing the validity of the conditional caution.
12. Section 23 of the 2003 Act sets out five requirements that must all be met before a conditional caution may be given. These are: (1) The authorised person (in this case the police) must have evidence that the offender has committed an offence. (2) The authorised person must determine that there is sufficient evidence to charge the offender with the offence. I interpolate that it is of course the officer's decision but there must be a sound basis for it. The authorised person must also determine that a conditional caution should be given to the offender in respect of the offence. (3) The offender must admit to the authorised person that he has committed the offence. (4) The authorised person must also explain the effect of the conditional caution and warn the offender that failure to comply with any of the conditions may result in prosecution for the offence. (5) The offender must sign the document containing details of the offence and admission that he committed the offence, his consent to a conditional caution and any conditions attached to the conditional caution.
13. As already explained, I consider that the decision in this case must be on the basis of the defendant's written evidence as to the factual circumstances. On the basis of all this material many of the claimant's factual assertions in conflict with the evidence put forward on behalf of the defendant cannot be accepted. In particular, I would hold that there is no sound basis for challenging the lawfulness of the claimant's arrest and detention as a result of an arrest under section 5 of the Public Order Act 1986. Prior to the caution the claimant was undoubtedly offered the opportunity to seek legal advice, and declined to do so. He clearly signed electronically a consent to the caution in terms which involve an admission to the section 4A offence. I would hold that the evidence shows that he was given an opportunity to read the electronic pad before he signed and that the effect and implications of the conditional caution had been explained to him prior to signature. I would also hold that in the circumstances the giving of the caution was in the public interest. That, of course, was a matter for the officer to assess and determine.
14. However, it seems to me that there is one matter which admits of further consideration. The arrest was for a section 5 offence, which is committed if a person uses threatening or abusive words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. The evidence of the claimant's words and conduct was in the circumstances in my view clearly capable of amounting to abusive words. It is to be noted that under this section there is no requirement to prove that any person was harassed, alarmed or distressed. It is sufficient if the abusive words were uttered within the hearing or sight of a person likely to be caused harassment, alarm or distress. There is no requirement for any evidence from bystanders who saw or heard what was being said or that they were alarmed or harassed: see Holloway v DPP [2004] EWHC 2621 (Admin).
15. Whilst I am satisfied that a police officer could properly have determined that there was sufficient evidence to charge the claimant with a section 5 offence, and thus, that the condition in section 23(2) of the 2003 Act was met for that offence, that is not enough, since for some reason the officer elected to administer a caution for a different offence. It is clear from section 23 that the necessary conditions bear upon the offence which is ultimately the subject matter of the caution.
16. The section 4A offence, unlike the section 5 offence, carries with it the sanction of imprisonment. This is understandable when its elements are considered. They include requirements that when a person uses threatening or abusive words a) he intends to cause a person harassment, alarm or distress, and b) that thereby another person was in fact caused harassment, alarm or distress.
17. It may well be that the evidence given by the officers of the language used by the claimant, coupled with his general demeanour at the time would suffice to enable an inference of the necessary intent to be drawn. However, as to the element of causing a person harassment, alarm or distress, I think the position is different. Examination of the police witness statements does not show any evidence that any of those reactions was suffered by the police officers as a result of what was said. The abuse was undoubtedly directed at them or capable of being interpreted in that way but the absence of any evidence from them as to feeling harassed, alarmed or distressed is significant. It no doubt reflects the fact that unhappily police officers are used to be being on the receiving end of invective of this sort in similar situations. That, no doubt, is why the arrest was made under section 5 for which proof of the element of harassment, alarm or distress caused is not a requirement.
18. I therefore find it hard to see how the police sergeant who made the decision to administer the conditional caution could properly have concluded that section 23(2) was satisfied in that there was sufficient evidence to charge the offender with the offence under section 4A. As paragraph 2.3 of the Code states:

"The decision-maker must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction in respect of each offence."

19. If a prosecution had been brought against this offender for the section 4A offence a submission of no case to answer at the close of the prosecution case would, to my mind, inevitably have succeeded based on the absence of evidence that by reason of the claimant's language another person was caused harassment, alarm or distress. Although the police officers' statements record that there were many members of the public in the vicinity at the time there is no such evidence from any source that any person was affected in the way described by section 4A. In particular, there is no evidence from any doorman or member of the public, nor do the police officers' statements describe any reactions by members of the public displaying the necessary elements of this part of the section 4A charge.
20. Whilst it is clear that the custody record and the conditional caution document have both been signed by the claimant in the place which shows an admission in circumstances where those documents set out the full terms of section 4A, I do not consider that they can be relied on by the defendant to show that the claimant's admission of guilt in that respect should be regarded as reliable or that it can cure the officers' failure to comply with section 23(2) or the Code.
21. It is of note that Sergeant Des-Chanelle, in completing the documentation showing why he had decided to administer a conditional caution in the Occurrence Summary Review, had identified the offence as falling within section 5, not section 4A.

The summary of the offence showed:

"Male commits public order offence by shouting and swearing in street."

There was no reference to anyone suffering harassment, alarm or distress.

22. He stated that he had reviewed all available evidence relating to the matter and identified, in particular, officers' statements, upon which I have already commented. He also referred to "Record of interview with the claimant." There had in fact been no formal interview before the caution and so no pre-caution admission had been made in any interview. I take this at its most favourable to the defendant to be a reference to the claimant's admission in the signing of the document and perhaps in a discussion with the police officer in the cells prior to the conditional caution process to events described as "Shouts and swears in a public place".
23. It is perfectly clear to me that in addressing the question of a caution, the officer was considering the section 5 offence. Although the document subsequently put before the claimant contained the terms of the section 4A offence, I can see nothing in the contemporaneous documents to show that the officer had considered that offence. Moreover, as we have seen, a caution must be accompanied by an admission of the offence. However, the officer's decision that there is sufficient evidence that the offence was committed must be made before such an admission, otherwise the requirements in section 23(1) and section 23(2)(a) would be otiose. I also record that Mr Morley fairly acknowledged in argument this morning that he was not seeking to rely upon the admission contained in the caution document.
24. For these reasons I would hold that section 23(2) is not satisfied. In my judgment that failure is an important one. It appears to demonstrate a lack of clarity unexplained by any subsequent evidence in the officer's thought processes.
25. In those circumstances there also arises, although it is not necessary for determination of this appeal, considerable doubt as to whether the elements of the offence put before the claimant for admission had ever been explained to him in a way that led him to appreciate that he was admitting something more than simply shouting and swearing at the police in the street. The evidence simply does not establish that. Indeed, the references in the documents to the claimant's expressions of remorse are clearly ambiguous as to what it was he was remorseful about. This cannot make good the flaws in the officer's decision.
26. I am, therefore, not satisfied that a necessary pre-condition for a conditional caution was in fact established. In so holding I am conscious that this court will rarely intervene to quash a caution and that this court retains a discretion not to interfere, even if there has been a breach of the guidelines. This case, of course, does not merely involve a breach of the Code. It also involves a breach of one of the pre-conditions set out in the statute.
27. I have considered in this context the decision in Lee v Chief Constable of Essex Police [2012] EWHC 283 (Admin) and in particular paragraphs 14 to 16 and 31. It seems to me that in the present case we are not involved with some relatively insignificant or insubstantial failure to comply with the Code. Rather, we are concerned with an important statutory pre-condition to the making of a conditional caution.
28. Whilst the claimant would have had no grounds for complaint had the caution related to a section 5 offence, I find myself unable to hold that the caution for a section 4A offence involving important added ingredients in the offending is justified. Since it is that offence which potentially remains part of the claimant's record for future reference with possible adverse consequences for him, it should not remain there if the caution was never properly administered in the first place. It is beyond the power of this court to substitute a caution for a section 5 offence for one relating to the section 4A offence.
29. I would therefore give leave and grant this application for judicial review, the consequence of which is the quashing of the conditional caution made on 3 May 2015.
30. MR JUSTICE NICOL: I agree.
31. LORD JUSTICE TREACY: Are there any other applications?

MR OLLENNU: I am grateful, my Lords. Yes. We apply for costs. My learned friend and I have discussed the matter about costs and we would ask your Lordships to say that the costs should be assessed if not agreed.

32. LORD JUSTICE TREACY: The successful claimant has made an application to the court for costs. The schedule of costs provided to us shows a figure of no less than £64,993.58. Mr Morley, who represents the defendant and whose advocacy has been restrained through the course of the morning, describes that level of costs sought as being "outrageous". We have some sympathy with that observation.
33. We consider, first of all, that this is a matter appropriate to summary assessment, rather than putting the matter off for a full determination. We see no reason why the resources of this court should be further expended in investigation of the matter and we are satisfied that we can deal with the matter appropriately.
34. Secondly, on enquiry about one or two of the elements of the document, which on its face is a very surprising one in terms of the costs sought, it became plain that there were matters which appeared to overstate the time expended. We therefore have little confidence in the document as put forward before us.
35. The essential question for us is what is a fair, just and proportionate assessment of costs in this case. We have come to the conclusion that it is nowhere near the sum that is being sought and that an appropriate sum is the sum of £10,000, to include VAT. That is the court's order.

MR MORLEY: I am grateful, my Lord.