Guest v Director of Public Prosecutions

LORD JUSTICE GOLDRING: In this application for judicial review, the Director of Public Prosecutions concedes that by his caseworker in the Crown Prosecution Service office in Bournemouth, he acted unlawfully in deciding not to prosecute the interested party, Mr Watts. He also accepts that the conditional caution given to Mr Watts by the police on the authority of the Crown Prosecution Service was accordingly inappropriate, although not, as it was originally argued, unlawful. Mr Watts should have been prosecuted for assault occasioning actual bodily harm on the claimant Mr Guest.

The issue as posed in the pleadings is whether the decision not to prosecute should be quashed, whether the conditional caution should be quashed, and whether the court should direct the Director of Public Prosecutions to reconsider the matter.

In deciding whether a case should be prosecuted, it must first pass the "evidential test". Paragraphs 5.2 and 5.3 provide as follows:

Second, the case must pass the public interest stage. Paragraph 5.7 of the Code states:

Paragraph 5.9 sets out those offences in which "a prosecution is likely to be needed". It is likely to be needed if:

Sections 22 to 27 of the Criminal Justice Act 2003 deal with conditional cautions. Section 22 provides:

By section 25, the Secretary of State is required to prepare a Code of Practice in relation to conditional cautions. As Annex B of the Code of Practice makes plain, conditional cautions are part of what is described as "restorative justice processes": see paragraph 1.1 of Annex B. The "Core Principles and their Implications for Practice" are set out in paragraph 5. Paragraph 5 is headed "Involvement of Victims". Paragraph 5.1 provides:

As I have said, section 8 of the Code for Crown Prosecutors is concerned with "diversion from prosecution". Paragraph 8.4, under the broad heading "Conditional Caution", states:

The introduction states:

The guidance, by paragraph 3, applies only to offences specified in Annex A. Annex A states:

Under the broad heading "Key provisions and principles", the guidance says this:

Another key provision and principle:

Paragraph 3, under the broad heading, "Deciding whether a Conditional Caution is a suitable response", states:

Under the heading, "Sufficient evidence to charge the offender with the offence", it states:

As to the offences in respect of which conditional cautions are permitted, it states in Annex A, under the heading, "Public interest factors to determine whether a Conditional Caution should be offered;"

It refers to "Any aggravating circumstances", which "may all increase the seriousness of the offence to the point where the case should proceed to court". There is a reference to "The likely outcome at court", in which it is stated:

There is a heading, "The effect on the victim". It states:

There is another broad heading, "Considering Individual Victims - Reparative Conditions". It states:

It deals with the absence of agreement with the victim. It states:

The table at Annex B, under the heading "Compensation for personal injuries", refers to "Minor cut - no permanent scar. Depending on size and whether stitched £100 to £250".

There is a heading, "Crown Prosecutor's decision". It states:

It further states at paragraph 3:

Paragraph 8 deals with the "Administration of the Conditional Caution". It states:

On Friday, 4 April 2008, following some abusive texts from Mr Guest to Mr Watts, Mr Watts came round to Mr Guest's home. Mr Guest and his partner were asleep in bed. According to Mr Guest's witness statement, which has corroboration from the photographs taken shortly after these events, he was punched several times to the right eye and fell to the floor. When on the floor and crawling towards his bedroom, Mr Watts, it is alleged, continually kicked him in the legs and head. According to Mr Guest, his partner pleaded with Mr Watts to stop kicking and punching. He continued. Mr Guest estimated the length of the incident at about five to ten minutes. He was taken by ambulance to Poole General Hospital. Mr Guest says that he sustained severe bruising to the right eye. He was given some four stitches and butterfly clips by the hospital staff. His nose bled internally. There was bruising to his left outer and inner thigh. Not surprisingly, if the allegations are true, he states he was shocked at what happened.

There are, as I have indicated, some photographs which the court has seen. They reveal, among other things, the extent of the bleeding suffered by Mr Guest.

On 10 April 2008, Mr Watts wrote to Mr Guest. The letter is headed "Without prejudice". He admitted the attack. He offered what he described as a "sincere apology for the unfortunate escalation of events last Friday evening. My actions were unforgivable and in hindsight most regrettable". In the next three paragraphs, he sets out what I think is intended to be mitigation. In the final sentence he wishes a speedy recovery to Mr Guest.

On 2 May 2008, the police provided the case papers to Mr Clark of the relevant Crown Prosecution Service office to seek pre-charge advice. Mr Clark's view was that Mr Watts not be prosecuted and be given a conditional caution. The condition set was that Mr Watts pay £200 to Mr Guest in compensation by 4 June 2008. The Dorset Police were accordingly authorised to administer the conditional caution, which they did. Mr Watts paid the £200. We were told today that it was forwarded to Mr Guest, who did not accept it.

In a letter of 28 May 2008, in response to complaint by Mr Guest, who, as I understand it, from beginning to end was against the administration of a conditional caution, Mr Hall, the Deputy District Crown Prosecutor, said this:

The convictions to which reference was made were in about 1988 and were quite plainly wholly irrelevant. Not surprisingly, the Crown Prosecution Service did not maintain the stance of Mr Clark and Mr Hall. In response to a pre-action letter from Mr Guest's solicitor, Miss Brown, the Chief Crown Prosecutor, wrote:

Mr Moores, counsel on behalf of the Director of Public Prosecutions, accepts that the decision not to prosecute was flawed in public law terms. As he puts it in his skeleton argument-

Mr Tomlinson, on behalf of the claimant, effectively submits that that is an end of the defendant's case. Once it is conceded that the decision to prosecute is both susceptible to quashing and that it should be quashed, it must inevitably follow, he submits, that the conditional caution too falls to be quashed. In his skeleton argument, Mr Moores disagreed, although in argument before us today he rather changed his view. Reflecting the way in which it was put in the claim form, he had sought to divide the flawed decision not to prosecute from the administration of the caution. He made submissions to the effect that the administration of the caution was not motivated by bad faith or in itself perverse. He emphasised that the condition was complied with and the compensation paid; that, in doing so, Mr Watts had the genuine expectation that he (Mr Watts) would no longer face prosecution.

However, Mr Moores in argument accepted that the decision not to prosecute and conditionally to caution was one decision; if the failure to prosecute falls to be quashed so too does the conditional discharge. The issue therefore is whether a quashing order should be made in relation to that decision.

The submissions Mr Moores makes are these. To quash the conditional caution would be counter-productive. Any subsequent prosecution, at least by the Crown Prosecution Service, would have no reasonable prospect of success because the court hearing it would regard it as abusive. In other words, it would amount to an abuse of process.

In support of the suggestion that any subsequent prosecution would be an abuse of the court's process, Mr Moores relies upon a series of authorities, effectively summarised by the then Lord Chief Justice, Lord Phillips, in the case of R v Abu Hamza [2007] 1 Cr App R 27 at paragraphs 50 to 54:

Mr Moores draws a distinction between this case and the case of Jones v Whalley [2006] 1 WLR 179, a case heavily relied upon by Mr Tomlinson. In that case, a private prosecution was brought by the victim against the perpetrator of an assault occasioning actually bodily harm. The officer in the case had decided upon a formal caution. The offender was not prosecuted. He was cautioned in accordance with the then procedure which was governed by a series of Home Office Circulars. The Criminal Justice Act 2003 had not then been enacted. Mr Jones brought a private prosecution. At the time he did so, the caution had not been quashed. The justices decided that the private prosecution was in the circumstances an abuse of the process of the Magistrates' Court and stayed the proceedings. The Divisional Court disagreed. The justice's decision was upheld by the House of Lords. At paragraph 34 of his speech, Lord Bingham of Cornhill said this:

At paragraph 4 of his speech, in which he agreed with the reasons for allowing the appeal given by Lord Bingham, Lord Brown of Eaton-under-Heywood said:

Before setting aside the decision of Jones v Whalley, I should refer to the speech of Lord Mance, in which at paragraph 38 he indicated that different considerations might apply in the context of abuse of process to private prosecutions from those brought by the state.

Mr Moores submits that this case is different from Jones v Whalley. The procedure here was statutory. Detriment was suffered by Mr Watts, namely the payment of the £200. In argument, it became clear that it was essentially that payment of £200 that founded the distinction between Jones v Whalley and the present case. He submits too that the observations in Jones v Whalley were unnecessary for the decision. Mr Watts was entitled to take the police at their word, and that any prosecution would therefore amount to an abuse of process, at least if brought by the Crown.

Before coming to my conclusions, I should refer to the acknowledgment of service put in by Mr Watts. He is present, although not represented. He refers, among other things, to what he describes as the mitigating circumstances. He says that it was not a premeditated attack as has been suggested, although accepts that his actions were completely unacceptable. He suggests that a further prosecution would be an abuse of process. The matter was well and truly behind him and his wife. He says it was difficult enough to find the £200 to pay Mr Guest. It is unnecessary, although I have read it as a whole, further to refer to the detail.

It seems to me, on proper analysis, the following is the position:

1. As Mr Moores ultimately accepted, it is wholly artificial to distinguish between the decision not to prosecute and the decision to administer a conditional caution. The decision not to prosecute and the authority given to the police to administer the caution were part and parcel of the same decision. If the decision, as Mr Moores concedes, not to prosecute was flawed, so too was the decision conditionally to caution. If one falls to be quashed, so too does the other.

2. I have no doubt that the decision not to prosecute and to administer a conditional caution was fundamentally flawed.

First, it is clear that the assault occasioning actual bodily harm passed both the evidential and public interest limbs of the Code for Crown Prosecutors. The evidence on its face, and I emphasise the words "on its face" for these are allegations, was strong. Mr Watts made admissions. The photographs speak for themselves. Serious violence was not simply threatened; it was used. On the face of it, moreover, although Mr Watts disputes it, there was evidence it was premeditated.

Second, the precise terms of the Code for Crown Prosecutors apart, this was a very serious assault. It took place at night, at someone's home, in the presence of that person's partner. It involved, if Mr Guest is right, kicking when someone was on the ground.

Third, Annex A of the Director's guidance to conditional cautioning did not permit the administration of a conditional caution in such circumstances. It did not permit conditional cautioning for an offence of assault occasioning actual bodily harm.

Fourth, conditional cautioning was not an appropriate and proportionate response to the offending behaviour as required by the Director's guidance.

Fifth, Mr Guest was not involved in the decision. Indeed, it was clear that he did not agree with it (although that is not necessarily decisive). Paragraph 5 of Annex B of the Secretary of State's Code contemplates the victim's involvement. Paragraph 11 of the Director's guidance requires it wherever possible. It also requires consultation where possible on the condition to be imposed as part of the caution.

Sixth, in the light of the photographs and the injuries suffered by Mr Guest, there appears to have been only limited consideration of the appropriateness of £200 as compensation.

Seventh, the factors taken into account by Mr Clark in arriving at his decision cannot be supported.

3. Judicial review is a discretionary remedy. The court has a discretion as to whether or not it makes a quashing order. It will not if to do so would merely be academic. In the context of this case, that means that if an order quashing the decision not to prosecute and to administer the conditional caution were to be academic, because any subsequent decision would be not to prosecute on the basis that there would no reasonable prospect of success on the grounds of abuse of process, no quashing order should be made.

4. Speaking for myself, I am far from convinced that such would be the case. Criminal litigation is not a game. Whether in any given situation it can be proved by a defendant that the court's process has been abused is a matter for that court in the light of the facts of that case. All the authorities have to be considered in that light. Mr Watts accepted he was guilty. The caution could not otherwise have been administered. He was given the chance to pay a negligible sum to reflect the offence he admitted he had committed. If the conditional caution were quashed, the sum would be repaid. His admission in the context of the procedure would not stand. He would be in no worse position than had the decision not to prosecute never been taken.

It does not seem to me that, in those circumstances, a further prosecution would necessarily amount to an affront to public justice as referred to in some of the authorities. Indeed, many might think that what so far has happened deserves that description.

5. Moreover, as Mr Moores has conceded, different considerations could well apply were any private prosecution to be brought by Mr Guest. It was put in argument by Mr Moores in this way: that, as for a private prosecution, the point (ie the abuse of process point) is moot. Mr Guest was not part of the flawed decision which was taken by the Crown Prosecution Service.

6. Further, while it does not seem to me that in Jones v Whalley the House of Lords was indicating that invariably an abuse of process argument would not succeed in circumstances such as the present, it is undoubtedly very persuasive authority for the proposition that, given the quashing of a caution, abuse of process would not run. I say that bearing in mind the differences between that case and the present. One thing is clear: in that case, as in the present, a formal, albeit not statutory, caution was administered with the representation to the cautioned person that he would not be prosecuted. The speeches of their Lordships clearly indicate that given a quashing of the caution, a prosecution would lie.

7. In short, I have concluded that to quash the decision not to prosecute and administer the conditional caution would not be academic, and the court should order accordingly. If my Lord agrees, we will hear submissions as to the precise form of any order.

By Part 3 of the Criminal Justice Act 2003, Parliament has decided to place very considerable responsibility on the Crown Prosecution Service. By a decision to offer a conditional caution to an offender, the court is effectively bypassed. It means that someone who is guilty of committing a criminal offence is not prosecuted, does not appear before the court and is not sentenced by the court. The importance of taking such a decision conscientiously and in accordance with the law can hardly be overstated. The effect on the victim and the damage to the criminal justice system is self-evident if such a decision is taken without proper regard to the relevant guidance.

In this case, decisions were taken without regard to the Code for Crown Prosecutors, the Director's guidance on Conditional Cautioning and the Secretary of State's Code of Practice. It seems to me astonishing, as it would no doubt to many members of the public, that the Crown Prosecution Service could seriously contemplate not prosecuting someone who, it was alleged, deliberately went to a person's house at night, attacked him inside that house with some ferocity (including kicking him) in the presence of his (obviously very frightened) partner. I very much hope that this was a one-off aberration and not typical of the manner in which the Crown Prosecution Service discharges its heavy responsibilities in respect of conditional cautioning.

MR JUSTICE SWEENEY: The Director of Public Prosecutions rightly concedes that the decision of the Crown Prosecutor is, in law, indefensible. However, the stance of the Director as to the consequences which should flow is, in my judgment, surprising. Abuse of process involves a judgment by a court, based on well-defined principles, on the particular facts of a case. A decision to stay proceedings is a rare outcome. In a case in which, in accordance with the Code for Crown Prosecutors, the evidential and public interest tests are otherwise met, it will thus be in only the most exceptional case, where the Prosecutor can say with a high degree of certainty that a court will rule that a prosecution is proved to be an abuse of its process, that a decision not to prosecute is likely to be valid.

On the material before this court, it seems to me that, if the decision to prosecute and the conditional caution are quashed and the £200 returned, this case falls far short of a high degree of certainty that any resultant prosecution would be ruled to be an abuse of process. Rather the reverse. The affront to justice, thus far, of the decision not to prosecute would be put right. It is troubling, to say the least, that the Director, apparently by two senior local lawyers, does not appear to be able to see that.

I wholeheartedly agree with the reasoning and observations of my Lord, Goldring LJ, and with his conclusion that both the decision not to prosecute and the conditional caution must be quashed, meaning that the £200 must be returned.

For my part, and subject to the further submissions which my Lord has mentioned, I would be minded to order that the case be reconsidered, hopefully at a level at which the abuse of process jurisprudence is properly understood. Subject to that, I would order accordingly.

LORD JUSTICE GOLDRING: Yes, Mr Tomlinson?

MR TOMLINSON: My Lord, at page 116 of the bundle is a draft of the order sought on behalf of the claimant. My Lord, I understand it is paragraph 3 that is the one that is most in issue at present.

LORD JUSTICE GOLDRING: Speaking for myself, and I think my Lord, having heard my Lord's observations, I would be minded to order the quashing of the decision not to prosecute and the conditional caution. It seems to me that it is one quashing order, not two, and I would be minded to direct -- I will hear what Mr Moores says but I suspect he will not dissent from this for it merely requires reconsideration -- that it be reconsidered by the Director.

MR TOMLINSON: My Lord, so be it, and that indeed is the exact order that was made in the case of ex parte Manning.

LORD JUSTICE GOLDRING: Mr Moores, do you have any observations?

MR MOORES: My Lord, no. I do not seek to push against a closing door in terms of my submissions.

LORD JUSTICE GOLDRING: The reality, Mr Moores, is that it will have to be reconsidered, and the Director will have to decide what to do. It is really quite simple.

MR MOORES: My Lord, yes, and given the position I am in, I cannot argue further than that. It may, as my Lord also suggests, have to go to another level. We took a view based on --

LORD JUSTICE GOLDRING: Mr Moores, we understand that completely and we are saying no more than it be reconsidered. Would you be kind enough to draft an order, Mr Tomlinson, and agree it with Mr Moores, and it then can be lodged with the court in which the decision not to prosecute and administer a conditional caution be quashed, and that the Director be ordered to reconsider the decision not to prosecute.

MR TOMLINSON: My Lord, yes.

LORD JUSTICE GOLDRING: Anything else?

MR TOMLINSON: There is one final matter in relation to costs. The claimant claims the costs --

LORD JUSTICE GOLDRING: Just so that it is quite clear, Mr Tomlinson, the order does not include the words "and to reach a decision in accordance with the judgment of the court".

MR TOMLINSON: My Lord, I hear that, and indeed I have put square brackets around those words.

LORD JUSTICE GOLDRING: Yes. I am so sorry, costs.

MR TOMLINSON: Costs, my Lord, yes. The claimant has been successful in this action, and seeks its costs of the case.

LORD JUSTICE GOLDRING: Is there a schedule of costs?

MR TOMLINSON: I trust a schedule has made its way to the Bench.

LORD JUSTICE GOLDRING: It has not got to me. Have you got a copy, Mr Moores?

MR MOORES: My Lord, I have.

LORD JUSTICE GOLDRING: What do you say, Mr Moores?

MR MOORES: My Lord, I do not argue with the principle, but I do submit -- I do not know whether your Lordships have been provided with the schedule of costs prepared on behalf of the Crown Prosecution Service.

LORD JUSTICE GOLDRING: I think if we can deal with it, I think we would wish to. So what do you have to say about it?

MR MOORES: My Lord, the only observation is that the respective schedules perhaps point up --

LORD JUSTICE GOLDRING: I do not have yours.

MR MOORES: My Lord, can I hand up the one that has been prepared, as it were, under the statutory scheme so far as the Crown's costs is concerned.

LORD JUSTICE GOLDRING: Thank you.

MR MOORES: I make no more than the observation that it perhaps points to the stark difference between those who are dependent on the public purse and those who have the luxury of --

LORD JUSTICE GOLDRING: I think both my Lord and myself are reasonably familiar with that.

MR MOORES: My Lords, I only ask that, bearing that observation in mind, and bearing in mind the pressures upon those who instruct me, which the court is all too familiar with, the consideration is given as to whether or not the figures sought are appropriate.

LORD JUSTICE GOLDRING: I do not think the hourly rate can be quarreled with. I have a slight reservation about 15 hours attendance on client. It seems to me, speaking for myself, rather a lot. I do not know if it was ten hours attendance at hearing or not in the event. It is an estimated figure -- better find out. It did not take quite as long as you had anticipated.

MR TOMLINSON: No, it did not. It was listed for half a day. In terms of the first item that your Lordship queried, it does include telephone calls and letters as well. My learned friend has pointed to the disparity between the two schedules. It is clear that in cases such as these the claimant does much if not most of the legwork.

LORD JUSTICE GOLDRING: Yes, I think you may have your costs in the sum set out in the document.

MR TOMLINSON: My Lord, I am very grateful.

LORD JUSTICE GOLDRING: Thank you both very much.