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Judgments - Jones (Respondent) v. Whalley (Appellant) (Criminal Appeal from her Majesty's High Court of Justice)


SESSION 2005-06

[2006] UKHL 41

on appeal [2005] EWHC 931 Admin




for judgment IN THE CAUSE


Jones (Respondent)


Whalley (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)



Appellate Committee


Lord Bingham of Cornhill

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Mance




Timothy King QC

Stuart Mills

(Instructed by KSB Law, agents for Iain MacDonald Solicitors, St Helens)


Malcolm Swift QC

Simon Reevell

(Instructed by Northern Railways Limited)


Hearing date:

29 June 2006



wednesday 26 July 2006





Jones (Respondent) v. Whalley (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)

[2006] UKHL 41


My Lords,

    1.  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.

    2.  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).

    3.  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.


    4.  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).

    5.  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".

    6.  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

    7.  On behalf of Mr Whalley, Mr Timothy King QC relied on his client's agreement to be cautioned on an express assurance by the police officer that he would not have to go before a criminal court in connection with the matter. He relied by analogy on R v Croydon Justices, Ex p Dean [1993] QB 769. In that case the applicant assisted the police in a murder investigation on the understanding, induced by the police, that he would not himself be prosecuted. Some weeks later, at the instance of the CPS, the applicant was charged with a lesser offence connected with the same crime. In committal proceedings before justices it was submitted that the prosecution was an abuse of the process of the court. This contention was rejected by the justices, but accepted by the Divisional Court (Staughton LJ and Buckley J). Mr King pointed out that in that case the police had no authority to bind the CPS just as, in this, the police had no authority to bind Mr Jones. But the court did not regard that point as decisive. At pp 776-777 Staughton LJ said, with the agreement of Buckley J:

    "It is submitted on behalf of the Crown Prosecution Service that they alone are entitled, and bound, to decide who shall be prosecuted, at any rate in this category of case; and that the police had no authority and no right to tell the applicant that he would not be prosecuted for any offence in connection with the murder: see section 3(2) of the Prosecution of Offences Act 1985. I can readily accept that. I also accept that the point is one of constitutional importance. But I cannot accept the submission of [counsel for the prosecution] that, in consequence, no such conduct by the police can ever give rise to an abuse of process. The effect on the applicant or for that matter on his father, of an undertaking or promise or representation by the police was likely to have been the same in this case whether it was or was not authorised by the Crown Prosecution Service. It is true that they might have asked their solicitor whether an undertaking, promise or representation by the police was binding and he might have asked the Crown Prosecution Service whether it was made with their authority. But it seems unreasonable to expect that in this case. If the Crown Prosecution Service find that their powers are being usurped by the police, the remedy must surely be a greater degree of liaison at an early stage."

At p 778 he concluded:

    "In my judgment the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process. [Prosecuting counsel] was eventually disposed to concede as much, provided (i) that the promisor had power to decide, and (ii) that the case was one of bad faith or something akin to that. I do not accept either of those requirements as essential."

Here, Mr King argued, it was necessary to consider the effect on Mr Whalley of the categorical statement the officer made. Mr King distinguished Hayter v L [1998] 1 WLR 854, where two defendants who had been cautioned were thereafter privately prosecuted, and the prosecution was held by a Divisional Court (Schiemann LJ and Poole J) not to be an abuse. The point of distinction in that case was that the forms signed by the defendants indicated in terms that such cautions did not preclude the bringing of proceedings by an aggrieved party.

    8.  To this argument, Mr Malcolm Swift QC (who, like Mr King, did not appear below) advanced a series of answers on behalf of Mr Jones. First, he submitted, the right of private prosecution is expressly preserved by section 6 of the Prosecution of Offences Act 1985. That section provides:

    "(1)  Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.

    (2)  Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage."

This provision means exactly what it says. Save where the Director of Public Prosecutions is under a duty to take over the conduct of proceedings or, not being under a duty, chooses to do so, Part I of the Act, establishing the CPS, does not preclude the bringing of a private prosecution. To that extent the right of private prosecution survives. But Mr Whalley does not rely on any provision of Part I as defeating the private prosecution brought by Mr Jones.

    9.  Secondly, Mr Swift relied on Lord Wilberforce's recognition of the right to bring a private prosecution as "a valuable constitutional safeguard against inertia or partiality on the part of authority" in Gouriet v Union of Post Office Workers [1978] AC 435, 477. In the same case (p 498) Lord Diplock described private prosecutions as "a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law". Strong statements to the same effect have been made extra-judicially by, among others, Lord Simon of Glaisdale: see the Law Commission's Report on Consents to Prosecution (LC 255) of 20 October 1998, para 4.4. There are, however, respected commentators who are of opinion that with the establishment of an independent, professional prosecuting service, with consent required to prosecute in some more serious classes of case, with the prosecution of some cases reserved to the Director, and with power in the Director to take over and discontinue private prosecutions, the surviving right is one of little, or even no, value: op. cit., paras 4.5-4.8, 5.7, 5.10-5.24. The Law Commission concluded (para 5.24)

    "that the harm which might result from an unfettered right of prosecution would be either or both of the following:

    . . .

    (2)  the harm (whether to the individual involved in the criminal process or to the public interest in the strict sense) that results from any prosecution successful or not which is not in the public interest."

Mr Swift is entitled to insist that the right of private prosecution continues to exist in England and Wales, and may have a continuing role. But it is hard to regard it as an important constitutional safeguard when, as I understand, private prosecutions are all but unknown in Scotland.

    10.  Thirdly, Mr Swift distinguished R v Croydon Justices, Ex p Dean [1993] QB 769 by pointing out that the two bodies involved in that case, the police and the CPS, were both arms of the executive, whereas, in the present case, one (the police) is an arm of the executive and the other is a private individual. This is certainly a distinction, and I would agree that Dean is a stronger case, and concerned a young person. But what the court relied on in the passage quoted in para 7 above was the effect of the representation on the applicant, and the state has an interest in the integrity of court proceedings. In the present case Mr Whalley was led to believe that if he agreed to be cautioned he would not be prosecuted for this offence. He was probably misled into believing, wrongly, that the caution was a criminal conviction, because that is what the form said, an error into which the Justices also were misled, as the Divisional Court pointed out (para 8) (although the Divisional Court was wrong to suggest that a warning or reprimand given to a young offender under section 65 of the 1998 Act has the status of a conviction: the warning or reprimand may, like a caution, be cited in later proceedings but is not, again like a caution, a conviction). It is not known whether, in the present case, Mr Whalley was alive to the risk of a civil claim against him by Mr Jones, but he doubtless believed that his acceptance of a caution rendered him immune from the risk of prosecution.

    11.  Mr Swift submitted, fourthly, that the forms considered in Hayter v L [1998] 1 WLR 854 stated the true legal position accurately and the form in the present case did not. But Mr Jones was not to be deprived of his rights by a mis-statement in a police form. If the police chose to caution Mr Whalley and not to instigate a prosecution, that was their decision and could not deny to Mr Jones the exercise of a right he enjoyed at law. This is in my opinion correct. But it does not answer the question whether the proceedings brought by Mr Jones were fairly to be regarded by the Justices, in the circumstances, as an abuse of the court's process.

    12.  Mr Swift relied, fifthly, on the safeguards which exist to prevent or curb misuse of the right of private prosecution. These safeguards, listed in Hayter at p 858, include the power of justices to refuse to issue a summons and the Director's power to take over private prosecutions and bring them to an end. The House should not, it was argued, invent any further safeguard. I would accept the value of these safeguards in some cases. Authority shows that the issue of a summons is a judicial act (R v West London Metropolitan Stipendiary Magistrate, Ex p Klahn [1979] 1 WLR 933), but in practice summonses are routinely issued without detailed scrutiny, and there is nothing to suggest that the police caution of Mr Whalley was disclosed when application was made for the summons in the present case. The CPS was, as the Justices record, offered the opportunity to take over Mr Jones' prosecution, but declined to do so for reasons which are not in evidence: the CPS may have disagreed with the police action and favoured prosecution; or it may have agreed with the police decision but preferred to leave the matter to the Justices. It is not clear that either of these safeguards operated effectively in the present case.