Mondelly, R (on the application of) v Commissioner of the Police for the Metropolis

A police policy directed primarily to arrest and efficient deployment does not, without clear words, prohibit a caution or prosecution for simple possession of cannabis. Judicial review of a caution remains exceptional. The claimant must show a clear and settled policy, a clear breach, and an established public law error such as an irrational failure to consider relevant matters. A policy cannot suspend or dispense with a criminal offence or a statutory power conferred by Parliament. Differences in enforcement outcomes do not, without more, establish Wednesbury unreasonableness. The majority dismissed the claim. Walker J dissented, holding that the policy applied to case disposal generally and that an unexplained departure from it caused injustice.

The claimant was arrested after police officers investigating a burglary attended the wrong address and found a small quantity of cannabis. The officers initially arrested him for allowing premises to be used for cannabis smoking, but that allegation was not pursued. The claimant admitted possession of cannabis in interview and was then cautioned for possession of a Class C drug.

He sought judicial review of the caution, alleging breach of Metropolitan Police Notice 3/2004 and irrationality. The central issues were whether the cannabis-enforcement policy applied to cautioning after an arrest for another offence, whether it created a clear and settled policy from which departure required justification, and whether the caution was otherwise unlawful.

1. Majority disposition. Moses LJ, with whom Ouseley J agreed, dismissed the application. The caution was not shown to breach a clear and settled policy and was not Wednesbury unreasonable.
2. Reviewability and statutory powers. A decision to caution may in principle be reviewed under ordinary public law principles, but courts intervene reluctantly in operational policing and prosecution decisions. The statutory power of arrest under the Police and Criminal Evidence Act 1984, including the power preserved for cannabis possession by the Criminal Justice Act 2003, could not be removed or materially curtailed by an unclear administrative notice.
3. Construction of the policy. Notice 3/2004 and its Standard Operating Procedures stated that they did not interfere with individual discretion and were directed chiefly to reducing police time spent on a less serious drug. They did not clearly prohibit arrest, caution or prosecution in every case lacking an aggravating factor. A policy on arrest could not sensibly be read across as a prohibition on later caution or prosecution.
4. Clear breach requirement. The authorities established reluctance to intervene unless the relevant policy was clear and settled and the breach itself was established. The claimant failed on both matters. The notice did not create a right to no further action, and the relevant procedure had not been breached merely because the claimant was cautioned after being arrested for a different offence.
5. Rationality and consistency. The inspector was entitled to consider the admission, the previous caution and the evidential and public-interest requirements for cautioning. Variations between cases, or the fact that others might not have been arrested or cautioned, did not establish irrationality. The application of a policy designed to guide enforcement could not allow an offender to avoid a sanction that remained legally available.
6. Dissent. Walker J would have quashed the caution. He considered that the policy covered general enforcement and case disposal, that the breach was clear, and that the inspector had provided no rational reason for departing from it. In his view the resulting criminal record caused exceptional injustice, particularly because a prosecution would arguably have been stayed as an abuse of process.

First-instance judicial review proceedings in the Divisional Court. The majority dismissed the application; Walker J would have allowed it and quashed the caution.