R Owusu-Yianoma v Chief Constable of Leicestershire

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.

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.

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.

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.

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.

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.

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.

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".

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."

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."

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.

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.

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.

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...