The Seamless Web? Diversion from The Criminal Process and Judicial Review
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00646.x |
| Published date | 01 July 2007 |
| Date | 01 July 2007 |
| Author | L. H. Leigh |
CASES
The SeamlessWeb? Diversion fromThe Criminal Process
and Judicial Review
L. H. Le igh
n
INTRODUCTION
Both cautioning and other, less formal procedures for diverting individuals from
the criminal courts and fromthe criminal process have becomeincreasingly struc-
tured and important in recent years. Reg (Mondelly) vCommissioner of Police for the
Metropolis addresses the question whether a person who has been cautioned in
apparent breach of police policy, itself founded on Home O⁄ce and ACPO gui-
dance, not to bring certain categories of simple o¡ending within the criminal
process, can apply for judicial review to quash the caution.
1
Previous cases have
accepted that judicial review is applicable when the criteria for cautioning have
been absent. Mondelly addresses the question whether judicial review is applicable
where a non-arrest policy would indicate that in the given case no further
action would be appropriate. A majority of the Divisional Court, Moses LJ and
Ouseley J (Walker J dissenting) dismissed the application.
Police o⁄cers investigating a burglary went in error to Mr Mondelly’s address.
Mr. Mondellyinvitedthem in.The o⁄cers, who said that theycouldsmell cannabis,
noticed a cannabis cigarette, a grinder, one small cube of cannabis resin, and what
they believed to be herbal cannabis. The claimant was arrested for allowing his pre-
mises to be used for smoking cannabis contrary to section 8(1) of the
Misuse of Drugs Act 1971. After a period in the cells, during which the claimant
su¡ered panic attacks, he was interviewed.The pol iceco ncludedthat there was insuf-
¢cient evidence to prosecute him on the charge for which he was arrested. However
theyconcludedthatitwouldbeappropriatetocautiontheclaimantand,withMr
Mondelly’s agreement to accept a caution, it was formally administered, the o¡ence
being identi¢ed as possession of a class C drug, it having been recorded that he had
been found in possession of a small quantity of cannabis.
Mr Mondelly’s claim for judicial review was based upon the decision to cau-
tion him allegedly contrary to police policy not to arrest persons whose o¡ence
consisted only of possession of small quantities of class C drugs.
2
He contended
n
Hon. Professor, University of Birmingham, formerly Professor of Criminal Law at the London
School of Economics and Political Science.
1 [2006] EWHC 2370 (Admin); [2006]Al l ER (D) 143 (September).
2 The judgment does not consider the validity of the arrest and detention, an original claim for relief
for those aspects having been transferredto the County Court. Nonetheless, as will be seen, con-
siderations relatingto the arrest were prayed in aid of Mr Mondelly’s application.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(4)MLR 654^679
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