[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Guest v Director of Public Prosecutions [2009] EWHC 594 (Admin) (05 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/594.html Cite as: 173 JP 51, [2009] EWHC 594 (Admin), [2009] 2 Cr App R 26, (2009) 173 JP 511, [2009] Crim LR 730

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5 March 2009

1. LORD JUSTICE GOLDRING: In this application for judicial review, the Director of Public Prosecutions concedes that by his caseworker in the Crown Prosecution Service office in Bournemouth, he acted unlawfully in deciding not to prosecute the interested party, Mr Watts. He also accepts that the conditional caution given to Mr Watts by the police on the authority of the Crown Prosecution Service was accordingly inappropriate, although not, as it was originally argued, unlawful. Mr Watts should have been prosecuted for assault occasioning actual bodily harm on the claimant Mr Guest.
2. The issue as posed in the pleadings is whether the decision not to prosecute should be quashed, whether the conditional caution should be quashed, and whether the court should direct the Director of Public Prosecutions to reconsider the matter.

The relevant statutory and other provisions

The Code for Crown Prosecutors

3. In deciding whether a case should be prosecuted, it must first pass the "evidential test". Paragraphs 5.2 and 5.3 provide as follows:

"5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a 'realistic prospect of conviction' against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case.

5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more

likely than not to convict the defendant of the charge alleged ..."

4. Second, the case must pass the public interest stage. Paragraph 5.7 of the Code states:

"... A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution (see section 8 below)."

I shall come shortly to diversion from prosecution and section 8.

5. Paragraph 5.9 sets out those offences in which "a prosecution is likely to be needed". It is likely to be needed if:

"...

c. violence was threatened during the

commission of the offence ...

g. there is evidence that the offence was premeditated."

The Criminal Justice Act 2003

6. Sections 22 to 27 of the Criminal Justice Act 2003 deal with conditional cautions. Section 22 provides:

"(1) An authorised person may give a conditional caution to a person aged 18 or over ("the offender") if each of the five requirements in section 23 is satisfied.

(2) In this Part "conditional caution" means a caution which is given in respect of an offence committed by the offender and which has conditions attached to it with which the offender must comply.

(3) The conditions which may be attached to such a caution are those which have either or both of the following objects—

(a) facilitating the rehabilitation of the offender,

(b) ensuring that he makes reparation for the offence.

(4) In this Part "authorised person" means—

(a) a constable,

(b) an investigating officer, or

(c) a person authorised by a relevant prosecutor for the purposes of this section.

23. The five requirements

(1) The first requirement is that the authorised person has evidence that the offender has committed an offence.

(2) The second requirement 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.

(3) The third requirement is that the offender admits to the authorised person that he committed the offence.

(4) The fourth requirement is that the authorised person explains the effect of the conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution may result in his being prosecuted for the offence.

(5) The fifth requirement is that the offender signs a document which contains—

(a) details of the offence,

(b) an admission by him that he committed the offence,

(c) his consent to being given the conditional caution, and

(d) the conditions attached to the caution.

24. Failure to comply with conditions

(1) If the offender fails, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, criminal proceedings may be instituted against the person for the offence in question ..."

7. By section 25, the Secretary of State is required to prepare a Code of Practice in relation to conditional cautions. As Annex B of the Code of Practice makes plain, conditional cautions are part of what is described as "restorative justice processes": see paragraph 1.1 of Annex B. The "Core Principles and their Implications for Practice" are set out in paragraph 5. Paragraph 5 is headed "Involvement of Victims". Paragraph 5.1 provides:

"1. Restorative processes are about victims, offenders and community members finding ways to repair the harm caused by crime. As such, restorative processes are innately victim focused, and should not be used solely to benefit or impact upon the offender. Forces must ensure that where restorative Conditional Cautioning is available it is offered systematically and impartially to all victims where offenders are eligible, not on an ad-hoc basis.

2. It is vital that victims understand that it is not they who will decide whether or not the offender is to be prosecuted. If the victim is not interested in participating in restorative Conditional Cautioning, Crown Prosecutors must consider whether the offender should be given other conditions."

8. As I have said, section 8 of the Code for Crown Prosecutors is concerned with "diversion from prosecution". Paragraph 8.4, under the broad heading "Conditional Caution", states:

"8.4 A conditional caution may be appropriate where a Crown Prosecutor considers that while the public interest justifies a prosecution, the interests of the suspect, victim and community may be better served by the suspect complying with suitable conditions aimed at rehabilitation or reparation.

These may include restorative processes.

8.5 Crown Prosecutors must be satisfied that there is sufficient evidence for a realistic prospect of conviction and that the public interest would justify a prosecution should the offer of

a conditional caution be refused or the offender fail to comply with the agreed conditions of the caution.

8.6 In reaching their decision, Crown Prosecutors should follow the Conditional Cautions Code of Practice and any guidance on conditional cautioning issued or approved by the Director of Public Prosecutions."

The Director's guidance on Conditional Cautions

9. The introduction states:

"This Guidance is to enable Custody Officers and Crown Prosecutors to decide how a person should be dealt with when:

• A Custody Officer determines that there is sufficient evidence to charge an offender with an offence, and

• A Custody Officer or an officer involved in the investigation considers that a Conditional Caution may be appropriate in the case, and

• A Crown Prosecutor considers that a Conditional Caution may be appropriate in the case and the offender may be suitable for a Conditional Caution."

10. The guidance, by paragraph 3, applies only to offences specified in Annex A. Annex A states:

"The following specific offences may be considered for diversion by way of a Conditional Caution:

Summary only offences

Any summary only offence, including (as examples)

• Common assault ..."

Assault occasioning actual bodily harm is not one such offence.

11. Under the broad heading "Key provisions and principles", the guidance says this:

"... Conditional Cautions are intended to be a swift and effective means of dealing with straightforward cases where the offender is willing to admit the offence and to agree to comply with specified conditions. The disposal should only be used where it provides an appropriate and proportionate response to the offending behaviour ..."

12. Another key provision and principle:

"The decision to administer a Conditional Caution will bring about the suspension of the prosecution while the offender is given an opportunity to comply with the conditions. Where the conditions are complied with, the prosecution will not proceed. However, where there is no reasonable excuse for any non-compliance, the prosecution for the original charge(s) should go ahead as if the caution had not been administered."

13. Paragraph 3, under the broad heading, "Deciding whether a Conditional Caution is a suitable response", states:

"The decision to offer a Conditional Caution and the conditions to be attached can only be made by a Crown prosecutor."

14. Under the heading, "Sufficient evidence to charge the offender with the offence", it states:

"Before a Conditional Caution can be given, a Crown Prosecutor must be satisfied that there is sufficient evidence available to meet the evidential requirements of the Full Code Test set out in the Code for Crown prosecutors."

15. As to the offences in respect of which conditional cautions are permitted, it states in Annex A, under the heading, "Public interest factors to determine whether a Conditional Caution should be offered;"

"A Crown Prosecutor must be satisfied that while the public interest justifies a prosecution, in the first instance, the interests of the victim, community or offender may be better served by the offender complying with suitable conditions aimed at reparation or rehabilitation. The Crown Prosecutor must also be satisfied that a prosecution will continue to be necessary should the offer of a Conditional Caution be declined or the offender fail to comply with the conditions.

6. Crown Prosecutors must consider the Code of Practice for Conditional Cautions, this Guidance and the Code for Crown Prosecutors, and have regard to the following public interest considerations.

Seriousness of the offence

7. The Crown Prosecutor must carefully consider the seriousness of the offence(s). The more serious the circumstances of the offence(s), the less likely it will be that the case is suitable for out of court disposal ..."

16. It refers to "Any aggravating circumstances", which "may all increase the seriousness of the offence to the point where the case should proceed to court". There is a reference to "The likely outcome at court", in which it is stated:

"The Crown Prosecutor should consider the range of penalties likely to be considered if the case were to proceed to the magistrates' court."

17. There is a heading, "The effect on the victim". It states:

"The views of individual victims should be considered wherever possible when deciding whether a Conditional Caution is appropriate. The Investigating Officer should seek the views of the individual victim and ensure that these are included in the prosecution papers."

18. There is another broad heading, "Considering Individual Victims - Reparative Conditions". It states:

"Priority consideration should be given to reparation or compensation for the victim of the crime in a manner that is acceptable to the victim. Individual victims should, where possible, be consulted and suitable conditions canvassed ... Payment of financial reparation should only be included where the victim has requested this."

19. It deals with the absence of agreement with the victim. It states:

"In the absence of agreement with the victim, which itself will be a factor to take into account when deciding how to proceed, the Crown Prosecutor must decide on the payment of compensation and make a decision that is fair and reasonable in all the circumstances taking into account the likely outcome had the case proceeded to court. For a guide to the amount of compensation that should be considered for personal injury, see the table at Annex B."

20. The table at Annex B, under the heading "Compensation for personal injuries", refers to "Minor cut - no permanent scar. Depending on size and whether stitched £100 to £250".
21. There is a heading, "Crown Prosecutor's decision". It states:

"A Conditional Caution may be appropriate where a Crown Prosecutor believes that while the public interest justifies a prosecution in the first instance, the interests of the victim, community or offender outweigh the seriousness of the offence and may be better served by the offender complying with suitable conditions aimed at reparation or rehabilitation."

22. It further states at paragraph 3:

"Where a Conditional Caution is appropriate, the Crown Prosecutor will notify the Custody Officer or officer involved in the investigation who will make arrangements for the offer of a Conditional Caution to be made. Where the offender indicates a willingness to be cautioned and comply with the conditions, an authorised person will administer the caution ..."

23. Paragraph 8 deals with the "Administration of the Conditional Caution". It states:

"0. Once the Crown Prosecutor has confirmed the use of a Conditional Caution, an Authorised Person, as permitted under section 22(4) of the Act to administer the Conditional Caution, usually a constable, will proceed to administer the caution and will:

a. Inform the offender of the evidence against him and the decision made by the Crown Prosecutor and remind the offender that he may decide to have the case heard at court.

b. Explain the Conditional Caution and the implications of accepting this and when details may be disclosed to others, including to the victim who may choose to bring civil proceedings for any loss suffered.

c. Explain the requirements for and consequences of making a further admission to the offence at that stage, and the fact that the admission, which must be evidenced by the offender's signature, may be used in evidence should the case result in prosecution."

The allegation in this case

24. On Friday, 4 April 2008, following some abusive texts from Mr Guest to Mr Watts, Mr Watts came round to Mr Guest's home. Mr Guest and his partner were asleep in bed. According to Mr Guest's witness statement, which has corroboration from the photographs taken shortly after these events, he was punched several times to the right eye and fell to the floor. When on the floor and crawling towards his bedroom, Mr Watts, it is alleged, continually kicked him in the legs and head. According to Mr Guest, his partner pleaded with Mr Watts to stop kicking and punching. He continued. Mr Guest estimated the length of the incident at about five to ten minutes. He was taken by ambulance to Poole General Hospital. Mr Guest says that he sustained severe bruising to the right eye. He was given some four stitches and butterfly clips by the hospital staff. His nose bled internally. There was bruising to his left outer and inner thigh. Not surprisingly, if the allegations are true, he states he was shocked at what happened.
25. There are, as I have indicated, some photographs which the court has seen. They reveal, among other things, the extent of the bleeding suffered by Mr Guest.

Mr Watts' letter of 10 April 2008

26. On 10 April 2008, Mr Watts wrote to Mr Guest. The letter is headed "Without prejudice". He admitted the attack. He offered what he described as a "sincere apology for the unfortunate escalation of events last Friday evening. My actions were unforgivable and in hindsight most regrettable". In the next three paragraphs, he sets out what I think is intended to be mitigation. In the final sentence he wishes a speedy recovery to Mr Guest.

The decision not to prosecute

27. On 2 May 2008, the police provided the case papers to Mr Clark of the relevant Crown Prosecution Service office to seek pre-charge advice. Mr Clark's view was that Mr Watts not be prosecuted and be given a conditional caution. The condition set was that Mr Watts pay £200 to Mr Guest in compensation by 4 June 2008. The Dorset Police were accordingly authorised to administer the conditional caution, which they did. Mr Watts paid the £200. We were told today that it was forwarded to Mr Guest, who did not accept it.

The correspondence following the decision

28. In a letter of 28 May 2008, in response to complaint by Mr Guest, who, as I understand it, from beginning to end was against the administration of a conditional caution, Mr Hall, the Deputy District Crown Prosecutor, said this:

"I have spoken to Mr Clark concerning his pre-charge decision and he has informed me of the following:-

Circumstances of the assault

Mr Watts and your client are both 50 years of age. Mr Watts was a man of previous good character. Your client had old offences of dishonesty recorded against him. There was an exchange of offensive text messages between the two parties. Your client then accused Mr Watts of committing mortgage fraud which resulted in Mr Watts' later attendance at your client's property. Mr Watts was allowed access to the property by your client's wife as she believed that the caller was another person called 'Chris'. There was an exchange of words and Mr Watts then assaulted your client to the face causing injury. No weapons were used in the attack.

Mr Watts was arrested and made admissions to assaulting your client in interview, and has also written a letter of apology to your client. However, it is fair to say that the admissions made in interview did not accord fully with your client's account of the assault.

The injury detailed to your client consisted of a small haematoma in the eye that had healed, a cut above the eye and bruising.

Decision made

Mr Clark considered this to be a serious matter and that the nature of the injuries properly fell within the category of assault by beating after giving due consideration to the Charging Standards.

Mr Clark felt that this was an offence for which Mr Watts had some, not insubstantial, mitigation were the matter to be charged. He felt that the account given in interview was credible and not so substantially different from your client's account that it affected disposal. In coming to a view on credibility Mr Clark considered the relative accounts, the good character or otherwise of Mr Watts and your client and also comments attributed to your client when the police officer dealing with the case tried to explain all possible outcomes to him prior to advice being sought.

Taking all of these factors into account it was felt that a Conditional Caution was appropriate.

Having considered all of those issues I am also satisfied that it was not inappropriate to deal with this matter by way of Conditional Caution ..."

29. The convictions to which reference was made were in about 1988 and were quite plainly wholly irrelevant. Not surprisingly, the Crown Prosecution Service did not maintain the stance of Mr Clark and Mr Hall. In response to a pre-action letter from Mr Guest's solicitor, Miss Brown, the Chief Crown Prosecutor, wrote:

"... I have reviewed the file carefully and I have come to the decision that the original decision to authorise this Conditional Caution was wrong and that Mr Watts should have been prosecuted for an offence of assault occasioning actual bodily harm.

Unfortunately I have no power to rescind or quash the original caution. I would have been able to prosecute Mr Watts for the offence if he had failed to comply with the conditions of the Conditional Caution but I have been informed by Dorset Police that Mr Watts has already admitted his guilt, accepted the Caution and complied with the conditions.

I have therefore considered whether it would be appropriate for me to institute proceedings notwithstanding the fact that Mr Watts has already received a Conditional Caution for this offence. I have concluded that it would not be appropriate for the Crown Prosecution Service to institute proceedings in these circumstances. My reasons are that it would be an abuse of the process of the court. An offender should be able to be confident that the formal procedure to which he is party represents a final disposal of this matter. A Conditional Caution is a statutory disposal for the offence that he committed and he has been led to believe that if he admits his guilt, accepts the caution and complies with any conditions, he will not be prosecuted for this matter.

I know that this decision will come as a great disappointment to you. I apologise unreservedly on behalf of the Crown Prosecution Service for the error that was made in relation to this case, and can assure you that this matter has been dealt with internally and appropriate advice given to the prosecutor concerned.

I can confirm that I have sent a copy of this letter to your solicitors so they are fully aware of my decisions in this case. I appreciate that this decision was a poor one and I apologise again for the fact that this mistake has been made."

The argument

30. Mr Moores, counsel on behalf of the Director of Public Prosecutions, accepts that the decision not to prosecute was flawed in public law terms. As he puts it in his skeleton argument-

"It is conceded that the decision not to prosecute was wrong on proper application of the Charging Standard. Having regard to both limbs of the test to be applied by the Crown Prosecutor, there was sufficient evidence to prosecute for ABH and it would at that time have been in the public interest to do so.

Accordingly that decision not to prosecute is susceptible to quashing and it is accepted that it should be quashed in terms of the categories identified by Kennedy LJ in R v Director of Public Prosecutions ex parte C [1995] 1 Crim App R 136 ... It is submitted that the flawed decision is best characterised as falling under number 2, namely 'a failure of the prosecutor to act in accordance with settled policy as set out in the Code.'"

31. Mr Tomlinson, on behalf of the claimant, effectively submits that that is an end of the defendant's case. Once it is conceded that the decision to prosecute is both susceptible to quashing and that it should be quashed, it must inevitably follow, he submits, that the conditional caution too falls to be quashed. In his skeleton argument, Mr Moores disagreed, although in argument before us today he rather changed his view. Reflecting the way in which it was put in the claim form, he had sought to divide the flawed decision not to prosecute from the administration of the caution. He made submissions to the effect that the administration of the caution was not motivated by bad faith or in itself perverse. He emphasised that the condition was complied with and the compensation paid; that, in doing so, Mr Watts had the genuine expectation that he (Mr Watts) would no longer face prosecution.
32. However, Mr Moores in argument accepted that the decision not to prosecute and conditionally to caution was one decision; if the failure to prosecute falls to be quashed so too does the conditional discharge. The issue therefore is whether a quashing order should be made in relation to that decision.
33. The submissions Mr Moores makes are these. To quash the conditional caution would be counter-productive. Any subsequent prosecution, at least by the Crown Prosecution Service, would have no reasonable prospect of success because the court hearing it would regard it as abusive. In other words, it would amount to an abuse of process.
34. In support of the suggestion that any subsequent prosecution would be an abuse of the court's process, Mr Moores relies upon a series of authorities, effectively summarised by the then Lord Chief Justice, Lord Phillips, in the case of R v Abu Hamza [2007] 1 Cr App R 27 at paragraphs 50 to 54:

"50. As the judge held, circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances, other than to say that they must be such as to render the proposed prosecution an affront to justice. The judge expressed reservations as to the extent to which one can apply the common law principle of 'legitimate expectation' in this field, and we share those reservations. That principle usually applies to the expectation generated in respect of the exercise of an administrative discretion by or on behalf of the person whose duty it is to exercise that discretion. The duty to prosecute offenders cannot be treated as an administrative discretion, for it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial. Only in rare circumstances will it be offensive to justice to give effect to this public interest.

51. Such circumstances can arise if police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance upon that undertaking, acts to his detriment. Thus in R v Croydon Justices, ex parte Dean (1994) 98 Cr. App. R. 76, a 17 year old youth, who had assisted in destroying evidence after a murder had taken place, was invited by the police to provide evidence for the prosecution and assured that, if he did so, he would not himself be prosecuted. He thereupon provided evidence against those who had committed the murder and admitted the part that he had played. In these circumstances, which Staughton LJ presiding in this court described as 'quite exceptional', it was held to be an abuse of process subsequently to prosecute him.

52. In R v Townsend, Dearsley and Bretscher [1997] 2 Cr App R 540 the Vice-President, Rose LJ, giving the judgment of this court approved the propositions: where a defendant has been induced to believe that he will not be prosecuted this is capable of founding a stay for abuse; where he then co-operates with the prosecution in a manner which results in manifest prejudice to him, it will become inherently unfair to proceed against him. He added that a breach of a promise not to prosecute does not inevitably give rise to abuse but may do so if it has led to a change of circumstances (pp 549, 551). These propositions echo the observation of Lord Lowry in R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] AC 42 at p. 74:-

'It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed court of trial, although the trial itself could be fairly conducted.'

53. R v Bloomfield [1997] 1 Cr App R 135 was a case where it was held to be an abuse of process to proceed with a prosecution in the face of an unequivocal statement by counsel for the Crown to the Court that the prosecution would tender no evidence. In that case there was no change of circumstances which might have justified departing from that statement.

54. These authorities suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment. Even then, if facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation."

35. Mr Moores draws a distinction between this case and the case of Jones v Whalley [2006] 1 WLR 179, a case heavily relied upon by Mr Tomlinson. In that case, a private prosecution was brought by the victim against the perpetrator of an assault occasioning actually bodily harm. The officer in the case had decided upon a formal caution. The offender was not prosecuted. He was cautioned in accordance with the then procedure which was governed by a series of Home Office Circulars. The Criminal Justice Act 2003 had not then been enacted. Mr Jones brought a private prosecution. At the time he did so, the caution had not been quashed. The justices decided that the private prosecution was in the circumstances an abuse of the process of the Magistrates' Court and stayed the proceedings. The Divisional Court disagreed. The justice's decision was upheld by the House of Lords. At paragraph 34 of his speech, Lord Bingham of Cornhill said this:

"If Mr Jones had legal grounds for attacking the police decision to caution Mr Whalley, he could apply for judicial review to quash that decision. If successful, the slate would be clean. There would be no citable caution on Mr Whalley's record and Mr Jones would be free to prosecute. But so long as that formal caution stood, induced by a representation that he would not be prosecuted, the private prosecution of Mr Whalley did in my opinion amount to an abuse, as the Justices held."

36. At paragraph 4 of his speech, in which he agreed with the reasons for allowing the appeal given by Lord Bingham, Lord Brown of Eaton-under-Heywood said:

"34. Like Lord Bingham, and, I apprehend, in common also with my noble and learned friend Lord Rodger of Earlsferry, whose opinion in draft I have also had the advantage of reading, I too see considerable force in the wider argument advanced by the appellant, namely that once an offender has been formally cautioned (unless that caution is quashed in judicial review proceedings), he cannot be prosecuted, whether publicly or privately, for the same offence."

37. Before setting aside the decision of Jones v Whalley, I should refer to the speech of Lord Mance, in which at paragraph 38 he indicated that different considerations might apply in the context of abuse of process to private prosecutions from those brought by the state.
38. Mr Moores submits that this case is different from Jones v Whalley. The procedure here was statutory. Detriment was suffered by Mr Watts, namely the payment of the £200. In argument, it became clear that it was essentially that payment of £200 that founded the distinction between Jones v Whalley and the present case. He submits too that the observations in Jones v Whalley were unnecessary for the decision. Mr Watts was entitled to take the police at their word, and that any prosecution would therefore amount to an abuse of process, at least if brought by the Crown.
39. Before coming to my conclusions, I should refer to the acknowledgment of service put in by Mr Watts. He is present, although not represented. He refers, among other things, to what he describes as the mitigating circumstances. He says that it was not a premeditated attack as has been suggested, although accepts that his actions were completely unacceptable. He suggests that a further prosecution would be an abuse of process. The matter was well and truly behind him and his wife. He says it was difficult enough to find the £200 to pay Mr Guest. It is unnecessary, although I have read it as a whole, further to refer to the detail.

My conclusion

40. It seems to me, on proper analysis, the following is the position:
41. 1. As Mr Moores ultimately accepted, it is wholly artificial to distinguish between the decision not to prosecute and the decision to administer a conditional caution. The decision not to prosecute and the authority given to the police to administer the caution were part and parcel of the same decision. If the decision, as Mr Moores concedes, not to prosecute was flawed, so too was the decision conditionally to caution. If one falls to be quashed, so too does the other.
42. 2. I have no doubt that the decision not to prosecute and to administer a conditional caution was fundamentally flawed.
43. First, it is clear that the assault occasioning actual bodily harm passed both the evidential and public interest limbs of the Code for Crown Prosecutors. The evidence on its face, and I emphasise the words "on its face" for these are allegations, was strong. Mr Watts made admissions. The photographs speak for themselves. Serious violence was not simply threatened; it was used. On the face of it, moreover, although Mr Watts disputes it, there was evidence it was premeditated.
44. Second, the precise terms of the Code for Crown Prosecutors apart, this was a very serious assault. It took place at night, at someone's home, in the presence of that person's partner. It involved, if Mr Guest is right, kicking when someone was on the ground.
45. Third, Annex A of the Director's guidance to conditional cautioning did not permit the administration of a conditional caution in such circumstances. It did not permit conditional cautioning for an offence of assault occasioning actual bodily harm.
46. Fourth, conditional cautioning was not an appropriate and proportionate response to the offending behaviour as required by the Director's guidance.
47. Fifth, Mr Guest was not involved in the decision. Indeed, it was clear that he did not agree with it (although that is not necessarily decisive). Paragraph 5 of Annex B of the Secretary of State's Code contemplates the victim's involvement. Paragraph 11 of the Director's guidance requires it wherever possible. It also requires consultation where possible on the condition to be imposed as part of the caution.
48. Sixth, in the light of the photographs and the injuries suffered by Mr Guest, there appears to have been only limited consideration of the appropriateness of £200 as compensation.
49. Seventh, the factors taken into account by Mr Clark in arriving at his decision cannot be supported.
50. 3. Judicial review is a discretionary remedy. The court has a discretion as to whether or not it makes a quashing order. It will not if to do so would merely be academic. In the context of this case, that means that if an order quashing the decision not to prosecute and to administer the conditional caution were to be academic, because any subsequent decision would be not to prosecute on the basis that there would no reasonable prospect of success on the grounds of abuse of process, no quashing order should be made.
51. 4. Speaking for myself, I am far from convinced that such would be the case. Criminal litigation is not a game. Whether in any given situation it can be proved by a defendant that the court's process has been abused is a matter for that court in the light of the facts of that case. All the authorities have to be considered in that light. Mr Watts accepted he was guilty. The caution could not otherwise have been administered. He was given the chance to pay a negligible sum to reflect the offence he admitted he had committed. If the conditional caution were quashed, the sum would be repaid. His admission in the context of the procedure would not stand. He would be in no worse position than had the decision not to prosecute never been taken.
52. It does not seem to me that, in those circumstances, a further prosecution would necessarily amount to an affront to public justice as referred to in some of the authorities. Indeed, many might think that what so far has happened deserves that description.
53. 5. Moreover, as Mr Moores has conceded, different considerations could well apply were any private prosecution to be brought by Mr Guest. It was put in argument by Mr Moores in this way: that, as for a private prosecution, the point (ie the abuse of process point) is moot. Mr Guest was not part of the flawed decision which was taken by the Crown Prosecution Service.
54. 6. Further, while it does not seem to me that in Jones v Whalley the House of Lords was indicating that invariably an abuse of process argument would not succeed in circumstances such as the present, it is undoubtedly very persuasive authority for the proposition that, given the quashing of a caution, abuse of process would not run. I say that bearing in mind the differences between that case and the present. One thing is clear: in that case, as in the present, a formal, albeit not statutory, caution was administered with the representation to the cautioned person that he would not be prosecuted. The speeches of their Lordships clearly indicate that given a quashing of the caution, a prosecution would lie.
55. 7. In short, I have concluded that to quash the decision not to prosecute and administer the conditional caution would not be academic, and the court should order accordingly. If my Lord agrees, we will hear submissions as to the precise form of any order.

A final observation

56. By Part 3 of the Criminal Justice Act 2003, Parliament has decided to place very considerable responsibility on the Crown Prosecution Service. By a decision to offer a conditional caution to an offender, the court is effectively bypassed. It means that someone who is guilty of committing a criminal offence is not prosecuted, does not appear before the court and is not sentenced by the court. The importance of taking such a decision conscientiously and in accordance with the law can hardly be overstated. The effect on the victim and the damage to the criminal justice system is self-evident if such a decision is taken without proper regard to the relevant guidance.
57. In this case, decisions were taken without regard to the Code for Crown Prosecutors, the Director's guidance on Conditional Cautioning and the Secretary of State's Code of Practice. It seems to me astonishing, as it would no doubt to many members of the public, that the Crown Prosecution Service could seriously contemplate not prosecuting someone who, it was alleged, deliberately went to a person's house at night, attacked him inside that house with some ferocity (including kicking him) in the presence of his (obviously very frightened) partner. I very much hope that this was a one-off aberration and not typical of the manner in which the Crown Prosecution Service discharges its heavy responsibilities in respect of conditional cautioning.
58. MR JUSTICE SWEENEY: The Director of Public Prosecutions rightly concedes that the decision of the Crown Prosecutor is, in law, indefensible. However, the stance of the Director as to the consequences which should flow is, in my judgment, surprising. Abuse of process involves a judgment by a court, based on well-defined principles, on the particular facts of a case. A decision to stay proceedings is a rare outcome. In a case in which, in accordance with the Code for Crown Prosecutors, the evidential and public interest tests are otherwise met, it will thus be in only the most exceptional case, where the Prosecutor can say with a high degree of certainty that a court will rule that a prosecution is proved to be an abuse of its process, that a decision not to prosecute is likely to be valid.
59. On the material before this court, it seems to me that, if the decision to prosecute and the conditional caution are quashed and the £200 returned, this case falls far short of a high degree of certainty that any resultant prosecution would be ruled to be an abuse of process. Rather the reverse. The affront to justice, thus far, of the decision not to prosecute would be put right. It is troubling, to say the least, that the Director, apparently by two senior local lawyers, does not appear to be able to see that.
60. I wholeheartedly agree with the reasoning and observations of my Lord, Goldring LJ, and with his conclusion that both the decision not to prosecute and the conditional caution must be quashed, meaning that the £200 must be returned.
61. For my part, and subject to the further submissions which my Lord has mentioned, I would be minded to order that the case be reconsidered, hopefully at a level at which the abuse of process jurisprudence is properly understood. Subject to that, I would order accordingly.
62. LORD JUSTICE GOLDRING: Yes, Mr Tomlinson?
63. MR TOMLINSON: My Lord, at page 116 of the bundle is a draft of the order sought on behalf of the claimant. My Lord, I understand it is paragraph 3 that is the one that is most in issue at present.
64. LORD JUSTICE GOLDRING: Speaking for myself, and I think my Lord, having heard my Lord's observations, I would be minded to order the quashing of the decision not to prosecute and the conditional caution. It seems to me that it is one quashing order, not two, and I would be minded to direct -- I will hear what Mr Moores says but I suspect he will not dissent from this for it merely requires reconsideration -- that it be reconsidered by the Director.
65. MR TOMLINSON: My Lord, so be it, and that indeed is the exact order that was made in the case of ex parte Manning.
66. LORD JUSTICE GOLDRING: Mr Moores, do you have any observations?
67. MR MOORES: My Lord, no. I do not seek to push against a closing door in terms of my submissions.
68. LORD JUSTICE GOLDRING: The reality, Mr Moores, is that it will have to be reconsidered, and the Director will have to decide what to do. It is really quite simple.
69. MR MOORES: My Lord, yes, and given the position I am in, I cannot argue further than that. It may, as my Lord also suggests, have to go to another level. We took a view based on --
70. LORD JUSTICE GOLDRING: Mr Moores, we understand that completely and we are saying no more than it be reconsidered. Would you be kind enough to draft an order, Mr Tomlinson, and agree it with Mr Moores, and it then can be lodged with the court in which the decision not to prosecute and administer a conditional caution be quashed, and that the Director be ordered to reconsider the decision not to prosecute.
71. MR TOMLINSON: My Lord, yes.
72. LORD JUSTICE GOLDRING: Anything else?
73. MR TOMLINSON: There is one final matter in relation to costs. The claimant claims the costs --
74. LORD JUSTICE GOLDRING: Just so that it is quite clear, Mr Tomlinson, the order does not include the words "and to reach a decision in accordance with the judgment of the court".
75. MR TOMLINSON: My Lord, I hear that, and indeed I have put square brackets around those words.
76. LORD JUSTICE GOLDRING: Yes. I am so sorry, costs.
77. MR TOMLINSON: Costs, my Lord, yes. The claimant has been successful in this action, and seeks its costs of the case.
78. LORD JUSTICE GOLDRING: Is there a schedule of costs?
79. MR TOMLINSON: I trust a schedule has made its way to the Bench.
80. LORD JUSTICE GOLDRING: It has not got to me. Have you got a copy, Mr Moores?
81. MR MOORES: My Lord, I have.
82. LORD JUSTICE GOLDRING: What do you say, Mr Moores?
83. MR MOORES: My Lord, I do not argue with the principle, but I do submit -- I do not know whether your Lordships have been provided with the schedule of costs prepared on behalf of the Crown Prosecution Service.
84. LORD JUSTICE GOLDRING: I think if we can deal with it, I think we would wish to. So what do you have to say about it?
85. MR MOORES: My Lord, the only observation is that the respective schedules perhaps point up --
86. LORD JUSTICE GOLDRING: I do not have yours.
87. MR MOORES: My Lord, can I hand up the one that has been prepared, as it were, under the statutory scheme so far as the Crown's costs is concerned.
88. LORD JUSTICE GOLDRING: Thank you.
89. MR MOORES: I make no more than the observation that it perhaps points to the stark difference between those who are dependent on the public purse and those who have the luxury of --
90. LORD JUSTICE GOLDRING: I think both my Lord and myself are reasonably familiar with that.
91. MR MOORES: My Lords, I only ask that, bearing that observation in mind, and bearing in mind the pressures upon those who instruct me, which the court is all too familiar with, the consideration is given as to whether or not the figures sought are appropriate.
92. LORD JUSTICE GOLDRING: I do not think the hourly rate can be quarreled with. I have a slight reservation about 15 hours attendance on client. It seems to me, speaking for myself, rather a lot. I do not know if it was ten hours attendance at hearing or not in the event. It is an estimated figure -- better find out. It did not take quite as long as you had anticipated.
93. MR TOMLINSON: No, it did not. It was listed for half a day. In terms of the first item that your Lordship queried, it does include telephone calls and letters as well. My learned friend has pointed to the disparity between the two schedules. It is clear that in cases such as these the claimant does much if not most of the legwork.
94. LORD JUSTICE GOLDRING: Yes, I think you may have your costs in the sum set out in the document.
95. MR TOMLINSON: My Lord, I am very grateful.
96. LORD JUSTICE GOLDRING: Thank you both very much.