Warn or Prosecute? Policy, the Exercise of Discretion and Judicial Review

AuthorNigel Stone
DOI10.1177/1473225407082512
Published date01 December 2007
Date01 December 2007
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j:stone 17-10-2007 p:53 c:0
L E G A L C O M M E N T A R Y
Copyright 2007 The National Association for Youth Justice
Published by SAGE Publications (Los Angeles, London, New Delhi and Singapore)
www.sagepublications.com
ISSN 1473-2254, Vol 7(3): 229–235
DOI: 10.1177/1473225407082512
Legal Commentary
Warn or Prosecute? Policy, the Exercise of Discretion
and Judicial Review

Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies, Elizabeth
Fry Building, University of East Anglia, Norwich NR4 7TJ, UK.
Email: n.stoneVuea.ac.uk
The decision-making entailed in determining whether to prosecute or to deal with a
young person in some alternative, diversionary way has not attracted frequent judicial
scrutiny.1 However, the exercise of that discretion is of obvious importance to juveniles
and their families and it is thus instructive to heed the judgment in R (on the application
of A.) v South Yorkshire Police and the Crown Prosecution Service
[2007] EWHC 1261 (Admin),
decided in May 2007. In what circumstances can the police and Crown Prosecution
Service (CPS) be challenged where a young person is charged and prosecuted, rather
than dealt with by use of power to administer a warning under the Crime and Disorder
Act (CDA) 1998 s.65?
The Crime Episode
While travelling home from their Rotherham school a number of youths had caused
damage to the roof and seating of a school bus, using three knives (‘two small chopping
knives and a pallet knife’) that one boy had taken from the school kitchen. CCTV
footage showed what had ensued on the top deck of the bus, the resulting damage
being valued at over £5570, including the cost of the bus being withdrawn from service
for an extended period for repair. In addition to seats being slashed or ripped and the
inside of the roof stabbed, the knives were wielded to threaten other passengers and a
knife had been thrown across the bus.
Eight pupils had been suspended from school. Following police investigation, six
were charged with criminal damage. Each had been co-operative when questioned and
all were apparently without any formal criminal history. Each had admitted some level
of involvement, ranging from the most active role in seat slashing and roof stabbing to
jumping on seats and trying to bend the top of a seat, in one instance, and in another

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230
Youth Justice 7(3)
to placing a knife in a cut already made in a seat. The solicitor who ultimately
represented all six (five boys and one girl, aged 14 to 16, hereinafter the claimants),
sought unsuccessfully to persuade the CPS that they should be warned instead.
The Statutory Guidance
CDA 1998 s.65 does not articulate any criteria by which to determine whether a
reprimand or warning is appropriate, save that the officer concerned must be satisfied
that ‘it would not be in the public interest for the offender to be prosecuted’ (s.65(1)(e)).
It is clear that a warning is normally given only if the young person has not previously
been warned (s.65(3)(a)). Where the young person has previously been warned, a further
warning may be appropriate provided that more than two years has elapsed since the
earlier warning and the officer ‘considers the offence to be not so serious’ as to require
a charge to be brought (s.65(3)(b)). Further, where the young person has not previously
been reprimanded a warning should be given if the officer ‘considers the offence to be
so serious as to require a warning’ (s.65(4)).
Scope is given for the Secretary of State to issue guidance as to the circumstances
in which it is appropriate to give reprimands and warnings (s65(6)(a)). The statutory
guidance that applied in respect of warnings at the time of the South Yorkshire
(Rotherham) decision-making (and continues to apply at time of writing) is given in
Final Warning Scheme (Home Office/Youth Justice Board, 2002), emphasizing the central
importance of the seriousness of the offence. To assist in achieving a consistent,
rational approach to assessment, the Scheme specifies use of the ACPO (Association
of Chief Police Officers) Gravity Factor System, under which all offences can be scored
between ‘one’ (for the most minor offences, for which the minimum applicable
response should always be used) and ‘four’ (the most serious, where the young person
should always be charged). The Scheme specifies that where an offence has a gravity
score of ‘three’ the police should ‘normally warn...

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