D v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,MR JUSTICE WALKER |
| Judgment Date | 14 February 2008 |
| Neutral Citation | [2008] EWHC 442 (Admin) |
| Date | 14 February 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6184/2007 |
[2008] EWHC 442 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Maurice Kay
Mr Justice Walker
CO/6184/2007
Ms C Callinan and Mr Neville Rudston (instructed by Messrs Ascot & Chase) appeared on behalf of the Claimants
Mr Paul Stagg (instructed by Metropolitan Police, Legal Services Department) appeared on behalf of the First Defendant
Mr John Hardy (instructed by Crown Prosecution Service) appeared on behalf of the Second Defendant
The Third Defendant did not appear and was not represented
This case is concerned with whether the two claimants should have been dealt with by way of final warnings for offences of criminal damage or whether they should continue to face prosecution.
D was born on 4 July 1990, B on 5 January 1992. Late in the evening of 27 April 2007 they, with two others of similar age, committed acts of criminal damage in relation to four cars parked in a street in Croydon. The substantial damage was caused by jumping on the cars. The four offenders were traced and arrested. They were the worse for drink.
At the police station during the night, D and B were arrogant and abusive. However, by the early afternoon of the following day, they had been interviewed and had admitted the offences, albeit after some prevarication in B's case.
They were charged and released on bail. The initial estimate of the investigating officer was that the damage to the vehicles was to the value of about £4,000 and that the two older vehicles might have to be written off. The eventual charges valued the total damage at £2,300.
Before charging the claimants, the officer in charge, Sergeant Page, had decided that this was not a suitable case for reprimand or final warning.
The first listing of the case in the Croydon Youth Court was on 11 May. On that occasion it was adjourned to 18 May for the Crown Prosecution Service to consider whether final warnings might be appropriate. On 18 May it was adjourned again. The case for the claimants is that on that occasion the Crown Prosecution Service advocate, Michael Phillips, expressed himself to the court in terms that have given rise to a legitimate expectation on the part of the claimants that the case would be disposed of by way of final warnings.
By the time of the next hearing, on 25 May, the present battle lines were drawn. The Crown Prosecution Service wished to proceed with the prosecution. The claimants said that that would be an abuse of process.
There were further procedural hearings before the final hearing on 16 July, at which the claimants applied to stay the proceedings as an abuse of process. That application was rejected.
In these judicial review proceedings, for which permission has been granted, the claimants seek to challenge: (1) the decision of Sergeant Page to charge rather than to proceed by way of final warning; (2) the decision of the Crown Prosecution Service to continue to prosecute, notwithstanding the alleged legitimate expectation; and (3) the decision of Croydon Youth Court refusing to stay the further prosecution as an abuse of process.
The statutory framework
The Crime and Disorder Act 1998, section 65, introduced a scheme of reprimands and final warnings, replacing the previous practice whereby the police administered cautions in certain circumstances. The purpose is to allow children and young persons who commit offences to be dealt with otherwise than through the court system. The scheme is aimed at those who are first or second offenders, and whose offences are such that it can be said that prosecution is not in the public interest. The hope is that they will mend their ways before criminality has become too embedded.
The pre-conditions for resort to reprimands and final warnings are set out in section 65(1) in the following terms:
“(1) Subsections (2) to (5) below apply where —
(a) a constable has evidence that a child or young person ('the offender') has committed an offence;
(b) the constable considers that the evidence is such that, if the offender were prosecuted for the offence, there would be a realistic prospect of his being convicted;
(c) the offender admits to the constable that he committed the offence;
(d) the offender has not previously been convicted of an offence; and
(e) the constable is satisfied that it would not be in the public interest for the offender to be prosecuted.”
The procedure is then detailed in subsections (2) to (5):
“(2) Subject to subsection (4) below, the constable may reprimand the offender if the offender has not previously been reprimanded or warned.
(3) The constable may warn the offender if —
(a) the offender has not previously been warned; or
(b) where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought;
but no person may be warned under paragraph (b) above more than once.
(4) Where the offender has not been previously reprimanded, the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning.
(5) The constable shall —
(a) give any reprimand or warning at a police station and, where the offender is under the age of 17, in the presence of an appropriate adult; and
(b) explain to the offender and, where he is under that age, the appropriate adult in ordinary language —
(i) in the case of a reprimand, the effect of subsection (5)(a) of section 66 below;
(ii) in the case of a warning, the effect of subsections (1), (2), (4) and (5)(b) and (c) of that section, and any guidance issued under subsection (3) of that section.”
By section 65(6) the Secretary of State was required to publish guidance as to the circumstances in which it is appropriate to give reprimands or warnings, including the establishment of criteria. Under section 66 a person who has been warned is to be referred to a Youth Offending Team for the arrangement of a rehabilitation programme in accordance with the guidance.
The Secretary of State has issued guidance under the title “Final Warning Scheme”. It states that the scheme aims to divert children and young people from their offending behaviour before they enter the court system. The following provisions in the guidance are material to these proceedings:
“ 1.6 The final warning scheme introduced a system of reprimands and final warnings for 10-17 year old offenders. Depending on the seriousness of the offence, a reprimand is normally given for a first offence and a final warning for a second offence. If a young person who has been given a final warning commits a further offence he or she must be charged. The only exception is where it is at least two years since the previous warning and the offence is not so serious as to require a charge to be brought, in which case a second warning may be given.
…
4.2 In dealing with any offence committed by under 18s, the police have three options:
• reprimand;
• final warning; or
• charge.
4.3 The 1998 Act requires that a final warning should normally be supported by an intervention programme delivered by the local Yot.
4.4 The final warning scheme is structured and progressive. Depending on the seriousness of the offence, the response will normally be:
First OffenceReprimand
Second OffenceFinal Warning
Third OffenceCharge
4.5 But the police must consider a range of factors when deciding which disposal is the most appropriate.”
Paragraphs 4.21 describes the Gravity Factor Scheme under which all offences can be given a gravity score of between 1 for the most minor offences and 4 for the most serious. Other factors can aggravate or mitigate the score for a particular offence.
Paragraph 4.24 provides:
“ 4.24 The different gravity scores, and the police action that should normally be taken in response to them are:
Gravity score Police Action
1Always the minimum response applicable to the individual offender, ie reprimand, warning or charge.
2Normally reprimand for a first offence. If offender does not qualify for a reprimand but qualifies for a warning then give warning. If offender does not qualify for a warning then charge.
3Normally warn for a first offence. If offender does not qualify for a warning then charge. Only in exceptional circumstances should a reprimand be given. Decision maker needs to justify reprimand.
4Always charge.”
Paragraph 4.26 then provides:
“ 4.26 A reprimand or final warning may be given only if the police are satisfied that it would not be in the public interest to prosecute.”
In addition to the Guidance, there is a Home Office Circular, 14/2006. Paragraph 12.2 of the Circular explains the role of the Crown Prosecution Service in these terms:
“12.2 … where the police have charged a youth and the Crown Prosecution Service decided that it is more appropriate for the youth to be given a reprimand or final warning, then the youth shall be given a reprimand or final warning if the young offender qualifies for a reprimand or warning under the CDA 1998.”
There is an Annex D inserted by the Circular into the gravity score scheme. It states:
“Having decided the appropriate offence, the gravity score can only be up-graded or down-graded by one point irrespective of the number of factors present. However, the mere presence of a (+) or (-) factor does...
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