Jones v Whalley
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD RODGER OF EARLSFERRY,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD MANCE |
| Judgment Date | 26 July 2006 |
| Neutral Citation | [2006] UKHL 41 |
| Court | House of Lords |
| Date | 26 July 2006 |
[2006] UKHL 41
Appellate Committee
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Carswell
Lord Brown of Eaton-under-Heywood
Lord Mance
HOUSE OF LORDS
Appellant:
Timothy King QC
Stuart Mills
(Instructed by KSB Law, agents for Iain MacDonald Solicitors, St Helens)
Respondents:
Malcolm Swift QC
Simon Reevell
(Instructed by Northern Railways Limited)
My Lords,
On 17 May 2003 the appellant, Mr Whalley, who is an adult, assaulted and injured the respondent, Mr Jones, at Newton-le-Willows. The matter was reported to the Greater Manchester Police, and an officer of that force interviewed Mr Whalley concerning an offence of assault occasioning actual bodily harm. Mr Whalley admitted commission of that offence. The officer decided that Mr Whalley should not be prosecuted but should instead be cautioned. He was notified of this decision in a standard form bearing the imprint of the Greater Manchester Police. This form explained the effect of the caution:
"This means that you will not have to go before a criminal court in connection with this matter but that a RECORD will be kept of this warning."
In a section directed to adults, the form stated:
"WHAT A CAUTION MEANS TO YOU:— The record of caution is a criminal conviction which is citable in a court should you re-offend. Should you re-offend you will almost certainly be charged and placed before a Criminal court."
The form repeated that if Mr Whalley appeared before a Court and was found guilty of another offence then details of this caution might be given to the Court. It is not found as a fact, but it seems safe to infer, that the effect of the form was explained orally to Mr Whalley by the officer, and that Mr Whalley agreed to be cautioned on these terms.
On 22 December 2003 Mr Jones, acting as a private prosecutor, laid an information against Mr Whalley, charging him with assault occasioning actually bodily harm contrary to section 47 of the Offences against the Person Act 1861. The matter came before Justices sitting at St Helens, and Mr Whalley submitted that his acceptance of a police caution on the indication that, if he accepted it, he would not face any further criminal proceedings, should preclude a private prosecution. The Justices heard argument on this issue on 25 October 2004, when authority was cited. The Justices were satisfied that to allow the prosecution to proceed would be an abuse of the process of the magistrates' court, and stayed the proceedings. On Mr Jones' appeal to the Queen's Bench Divisional Court by case stated, the court (Sedley LJ and Beatson J) held that the administration and acceptance of a caution were not sufficient to render the exercise of the right of private prosecution an abuse of process: [2005] EWHC 931 (Admin).
Mr Whalley now challenges the conclusion of the Divisional Court, contending that the Justices were right, on the facts of this case, to reach the conclusion they did. But he also raises a broader question, not deployed in argument below, whether the right of private prosecution can, or should, survive the implementation of a formal cautioning procedure which has not been quashed and set aside on an application for judicial review.
Cautions
In R(R) v Durham Constabulary [2005] UKHL 21, [2005] 1 WLR 1184, the House had occasion to consider the practice of formal reprimands and warnings established by the Crime and Disorder Act 1998 to replace the practice of cautioning young offenders committing less serious offences. The practice had become discredited, first, because cautions had in some areas been given so repeatedly and predictably that they lacked the desirable effect of deterring young offenders, and, secondly, because they did nothing constructively to address the roots of offending behaviour. Under the new regime, young offenders were no longer to be cautioned, but the new reprimands and warnings were intended to have teeth, and those warned were to be referred to youth offending teams. By section 65(1) of the 1998 Act, a constable may reprimand or warn a young offender only if he has evidence of the commission of an offence such as to give a realistic prospect of conviction; if the offender admits the offence; if the offender has not previously been convicted of an offence; and if the constable is satisfied that it would not be in the public interest for the offender to be prosecuted. In the Home Office/Youth Justice Board Guidance for the Police and Youth Offending Teams on the Final Warning Scheme (November 2002) it is made clear (paras 1.2 – 1.3) that the object of the new scheme is to prevent offending by young people and divert them from their offending behaviour before they enter the court system. Prominence is given to the requirement that prosecution must be judged to be not in the public interest (paras 4.7(e), 4.26), and by section 56 of the Criminal Justice and Court Services Act 2000 the Police and Criminal Evidence Act 1984 was amended to grant power to bail a young offender pending possible reprimand or warning, thus enabling the public interest to be more fully considered and the views of victims ascertained (paras 4.28, 6.15, chapters 7, 8). But the views of victims, although an important factor in determining the seriousness of an offence, are not conclusive, and victims should not be involved in decisions on disposals for young offenders, which are the responsibility of the police alone (para 8.11).
Sections 22 and 23 of the Criminal Justice Act 2003 introduced a new regime, applicable only to adult offenders. It provided for the giving of cautions subject to conditions. Non-compliance with the conditions exposes the offender to prosecution for the original offence. The conditions imposed (s. 22(3)) must be directed to one or both of two objects, facilitating the rehabilitation of the offender and ensuring that he makes reparation for the offence. A conditional caution may only be given by an authorised person and where each of five requirements is satisfied. An authorised person is defined (s. 22(4)) to mean a constable, an investigating officer or a person authorised by a relevant prosecutor (defined in s. 27) for purposes of section 22. The first requirement is that the authorised person has evidence that the offender has committed the offence. The second is that a relevant prosecutor decides (a) that there is sufficient evidence to charge the offender with the offence, and (b) that a conditional caution should be given to the offender in respect of the offence. The third requirement is that the offender admit guilt to the authorised person. The fourth requirement is that the authorised person explains the effect of the conditional caution, warning him that failure to comply with the conditions may result in prosecution for the offence. The last requirement is that the offender signs a document admitting the detailed offence and consenting to the caution on the specified conditions. By section 24, failure to comply with the conditions without reasonable excuse may lead to the institution of criminal proceedings against the offender for the offence in question. Pursuant to his duty under section 25 of the Act, the Secretary of State has issued a Code of Practice on Conditional Cautioning. This points out (in para 2.2) that "The simple caution will remain available as a disposal, and may be appropriate in cases where no suitable conditions readily suggest themselves, or where prosecution would not be in the public interest". Provision is made for involving victims, but (para 7.1) "it is vital not to give the impression that the victim's views (if any) will be conclusive as to the outcome, which (it should be explained) is at the discretion of the CPS".
Neither the reprimand and warning regime established by the 1998 Act nor the conditional cautioning regime introduced by the 2003 Act applies to this case. Mr Whalley is an adult. His caution contained no conditions, and the 2003 Act was not in force when he was cautioned. The procedure adopted when cautioning him was not governed by statute, but was the subject of a series of Home Office circulars, most recently Circular 18/1994 on the Cautioning of Offenders. This set out revised National Standards for Cautioning Offenders. In these the purposes of a formal caution were defined (para 1): to deal quickly and simply with less serious offenders; to divert them from unnecessary appearance in the criminal courts; and to reduce the chances of their re-offending. It is made clear (para 2) that before a caution may be given there must be sufficient evidence, an admission of guilt and informed consent by the offender to the giving of a caution. A note to para 2 provides:
"In practice consent to the caution should not be sought until it has been decided that cautioning is the correct course. The significance of the caution must be explained: that is, that a record will be kept of the caution, that the fact of a previous caution may influence the decision whether or not to prosecute if the person should offend again, and that it may be cited if the person should subsequently be found guilty of an offence by a court."
Para 3 provides that where the requirements are met, consideration should be given to whether a caution is in the public interest. The police should take into account the public interest principles described in the Code for Crown Prosecutors. These provide that a potential defendant should not be prosecuted, despite the existence of evidence providing a realistic prospect of conviction, where it is judged that prosecution would not be in the public interest.
The narrower issue
On behalf of Mr Whalley, Mr...
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