Reversing Decision to Caution
The appellant, an 18-year-old of good character, was searched and found to be in possession of a lock knife and a cannabis cigarette when the car in which he was a front seat passenger was stopped by police: Danny Mansfield v DPP [2021] EWHC 2938 (Admin) Stuart-Smith LJ, Mrs Justice May
After interview, the evidential review officer (ERO), who was a police sergeant, gave authority to proceed with a caution. The duty solicitor, Mr D, representing the appellant was informed.
That decision was passed to the custody sergeant so that the caution could be administered. The custody sergeant challenged the decision, it was reversed and, when Mr D was informed, he expressed surprise as there had been an assurance that there would be a caution.
The issues which arose before the District Judge were (i) whether the proceedings should be stayed as an abuse of process and (ii) as the Crown argued, the jurisdictional issue of whether the magistrates’ court had power to hear the issue of abuse, contending that it was a matter for the High court alone.
Following the District Judge’s decision to uphold the Crown’s submission and that he was bound by Nembhard v DPP[1] and Woolls v North Somerset Council[2] the appellant changed his plea.
Giving the judgment of the court on an application for judicial review, Mrs Justice May said that in the light of Panday v Virgil[3], the class of abuse falling to be decided exclusively in the High court would seem to be very narrow indeed, perhaps comprising only executive misconduct in relation to extradition. The judge declined to attempt a more precise definition.
What appeared clear from a review of the authorities, however, was that magistrates would be competent to investigate and determine a wide range of circumstances arising from, and bearing upon, the fairness of the domestic criminal process.
Turning to the instant case, it was clear that jurisdiction would encompass instances where the police had given an assurance which was then withdrawn.
The abuse jurisdiction being a concurrent one, the court agreed that it would be convenient and expeditious to decide it.
When the court was considering whether circumstances were such as to offend the court’s sense of justice and propriety, it would need to balance the public interest in ensuring that administrative errors or misconduct did not undermine public confidence in the administration of justice, on the one hand, with the public interest in ensuring that those accused of serious crime were properly tried on the evidence, on the other.
Lord Phillips identified the necessary preconditions before a court could find that there had been an abuse in R v Abu Hamza[4]. But satisfaction of such conditions would not in every case be sufficient to establish an abuse of process.
The key circumstance telling against a stay was the seriousness of the offence: the carrying of a knife in a public place by a young person was of great concern in the current climate and minimum sentences had been introduced for second and subsequent offences.
Against this, in addition to the breach of promise given by the officer responsible for the charging decision was the appellant’s age – just 18 when the car in which he was a passenger was stopped – together with the fact that he had no previous convictions or cautions.
Weighing those factors in the balance, the public interest in holding a state official to their promise outweighed the public interest in seeing that an offence, albeit a serious one, was prosecuted.
Had the circumstances been different – for instance, if there were a history of relevant offending – then the balance may have fallen out differently. As the courts had repeatedly emphasised, each case would depend upon its own facts.
The result was that the conviction would be quashed and the proceeding stayed.
[1] [2009] EWHC 194 (Admin)
[2] [2016] EWHC 1410 (Admin)
[3] [2008] UKPC 24, [2008] 1 AC 1386
[4] [2007] 1 Cr App R 27