Raised Expectations, Flawed Discretion and Abuse of Process in Diversion and Provision of Accommodation
| Date | 01 April 2009 |
| Author | Nigel Stone |
| Published date | 01 April 2009 |
| DOI | 10.1177/1473225408101433 |
| Subject Matter | Articles |
L E G A L C O M M E N T A R Y
Copyright © 2009 The National Association for Youth Justice
Published by SAGE Publications
(Los Angeles, London, New Delhi, Singapore and Washington DC)
www.sagepublications.com
ISSN 1473–2254, Vol 9(1): 77–86
DOI: 10.1177/1473225408101433
Legal Commentary
Raised Expectations, Flawed Discretion and Abuse of
Process in Diversion and Provision of Accommodation
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychology, Elizabeth Fry
Building, University of East Anglia, Norwich, NR4 7TJ, UK. Email: n.stone@uea.ac.uk
This two-part Commentary revisits issues that have generated further authoritative judicial atten-
tion, each proving a continuing source of confusion, misunderstanding and potential unfairness:
one in the context of whether a young person will be prosecuted or dealt with by diversionary
means; the other concerning the interpretation of a child’s accommodation needs.
Part 1: Legitimate Expectation of Diversion?
An earlier Commentary (Stone, 2007), prompted by the judgement in R (on the application of A.)
v South Yorkshire Police and the Crown Prosecution Service [2007] EWHC 1261 (Admin), (2007)
171 JP 465, addressed the scope to challenge the police and/or the CPS in circumstances where
a young person considers there was a legitimate expectation of incurring a warning rather than
facing prosecution. This aspect of discretionary decision-making in youth justice has been fur-
ther illustrated in two recent judgements dealing with appeals by way of application for judicial
review, extending the ambit of challenge to the decision of the courts before which the boys
concerned were prosecuted. These cases indicate the somewhat convoluted and misleading path-
ways that can be followed in determining how a case will be resolved in the youth justice system
in England and Wales.
The Croydon Damage Case
As was the case in A, R (on the application of D. and B.) v Commissioner of Police for the Metropolis,
Crown Prosecution Service and Croydon Justices [2008] EWHC 442 (Admin) concerned crim-
inal damage by a group, in this instance by jumping on parked cars. Under the terms of the
Final Warning Scheme (Home Offi ce/Youth Justice Board, 2002) criminal damage is assigned
an initial gravity score of ‘two’, for which the Scheme specifi es that the police should ‘normally
reprimand for a fi rst offence’. The initial gravity score can be adjusted upwards or downwards
by (no more than) one point in light of aggravating or mitigating factors. In this instance the
deliberate nature of the damage, combined with the level of fi nancial harm and the number of
offenders acting in concert (four), served to aggravate. For a score of three the normal police
78
Youth Justice 9(1)
action is identifi ed to be: ‘normally warn for a fi rst offence’. D. had a previous reprimand (for
cannabis possession), while B. had no prior record. Like his counterpart in A., the police offi cer
responsible for determining how to proceed in respect of D. and B. erroneously interpreted the
guidance and assigned a fi nal score of four, having regard to the prevalence of criminal damage
in that part of London, the youths’ apparent lack of remorse, and the high cost of repairs. A
score of four attracts the consequence: ‘always charge’. D. and B. (hereafter, ‘the applicants’)
were duly charged.
On their fi rst court appearance the applicants’ case was adjourned for a week to enable the
Crown Prosecution Service (CPS) to consider whether fi nal warnings might be appropriate. On
their second appearance, the case was further adjourned and the applicants later claimed that the
CPS advocate expressed himself to the court in terms that gave rise to a legitimate expectation
on their part that the case would result in fi nal warnings. By the time of their third appearance
the case had been reviewed by a ‘persistent young offender’ specialist CPS lawyer, prompting
determination by the CPS representative in court to proceed with prosecution. The applicants’
advocate unsuccessfully sought to persuade the court that to proceed would be an abuse of
process, in other words that it would be unfair to try them, given the previous indication that a
prosecution would not be brought.
As regards the police decision, the Divisional Court was not persuaded that the error in
scoring the offence should be decisive against the Metropolitan Police. Following the decision
in A., Maurice Kay LJ considered that, notwithstanding that mistake, the offi cer had acted in
accordance with paragraph 4.26 of the Final Warning Scheme policy document, namely that
‘a reprimand or fi nal warning may only be given if the police are satisfi ed that it would not be
in the public interest to prosecute’. The sergeant concerned had been entitled to take the view
that the public interest required prosecution in this instance and there was no valid basis for
interfering with his decision. The Court observed robustly that attempts of this kind ‘to stifl e
the discretion of police offi cers are to be deprecated’. In similar vein the Court considered the
exercise of CPS discretion to proceed with prosecution (in light of the number of cars involved,
the youths’ ‘complete disregard to other people’s property’, their subsequent unsympathetic
attitude and the amount of compensation at stake) to be perfectly permissible.
Turning to the second leg of the claim against the CPS – that the prosecution advocate at the
second court hearing had caused the applicants to have a legitimate expectation of diversion –
the Divisional Court took account of the adjournment note of the court clerk present on that
occasion: ‘for FW to be administered’ (FW clearly being shorthand for ‘fi nal warning’). Fur-
ther, the applicants’ relied on the evidence of the trainee barrister who had represented them
at that hearing. In her statement she recorded that the district judge (DJ) had asked the CPS
representative to clarify ‘who he would be recommending to receive a fi nal warning’, being
informed that this applied to D. and B. The trainee further recorded that the DJ had informed
her clients that ‘their hearing would be adjourned to confi rm that the fi nal warning had indeed
been given or that arrangements had been made for it to be given … and that they need not
attend court on (the next occasion) if the fi nal warning had been given’. She had endorsed her
brief: ‘Prosecution willing to recommend fi nal warning’. The Divisional Court did not agree
that these considerations constituted ‘overwhelming evidence’ of the applicants’ case and so
did not uphold the challenge.1 In light of this interpretation, the Court had little trouble in
rejecting the applicants’ claim that the Croydon Justices should have stayed the prosecution.
The fact that the prosecutor at the second hearing had indicated his intention to make a
Stone – Legal Commentary
79
recommendation favouring fi nal warning did not amount to any ‘promise’ that this would be
the outcome and so a fair trial remained possible and prosecution was a proper way to proceed.
The Guildford Assault Case
R (on the application of H.) v Guildford Youth Court [2008] EWHC 506 (Admin) concerned a
boy aged 15 with no prior record who allegedly kicked a fellow school pupil in the jaw, caus-
ing a fracture. In police interview he claimed that he had acted in this way because he had been
subjected to bullying. Prior to that interview the police had intimated to his solicitors’ represen-
tative that it was...
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