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

A private prosecution may be stayed as an abuse of process where the defendant accepted a formal police caution on an express assurance that he would not have to appear before a criminal court for the offence. This jurisdiction protects the fairness of trying the defendant at all and applies equally to public and private prosecutions.

The statutory preservation of private prosecutions does not displace the court’s power to prevent abuse. While the caution remains effective, a prosecution inconsistent with the assurance may be stayed. An aggrieved victim may instead seek judicial review of the cautioning decision. The wider question whether every subsisting caution precludes a subsequent private prosecution was left open.

After admitting an assault occasioning actual bodily harm, the appellant accepted a formal police caution. The police form stated that he would not have to appear before a criminal court in connection with the matter. The respondent, who had been assaulted, subsequently commenced a private prosecution under section 47 of the Offences against the Person Act 1861.

The justices stayed the prosecution as an abuse of process. On an appeal by case stated, the Queen’s Bench Divisional Court reversed that decision in [2005] EWHC 931 (Admin). The appellant appealed to the House of Lords. The central issue was whether the justices could treat the private prosecution as abusive while the caution and the accompanying assurance remained effective. The House also heard, but declined finally to determine, a broader challenge to private prosecutions following any formal caution.

1. The appeal was allowed unanimously. Lord Bingham delivered the leading speech. Lord Rodger gave concurring reasons, and Lord Carswell, Lord Brown and Lord Mance agreed that the appeal should be allowed on the narrower ground. The Divisional Court’s decision was set aside, the justices’ decision was upheld and the proceedings were dismissed.

2. Per Lord Bingham and Lord Rodger, a magistrates’ court has the same power to stay a private prosecution for abuse of process as it has in a public prosecution. The relevant abuse concerned the fairness of trying the accused at all, rather than the fairness of the trial itself. The power must be used sparingly, but it was open to the justices to conclude that a trial following the police assurance offended their sense of justice and propriety. The reasoning in R v Croydon Justices, Ex p Dean [1993] QB 769 and R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 supported that conclusion.

3. Per Lord Bingham, section 6 of the Prosecution of Offences Act 1985 preserves the right to institute a private prosecution, subject to the Director of Public Prosecutions’ powers. It does not remove the court’s jurisdiction to prevent its process from being abused. The private prosecutor was not personally bound by the police assurance, but that did not answer whether the resulting proceedings were abusive.

4. Per Lord Bingham and Lord Rodger, the police had acted under an officially recognised cautioning policy. A caution was to be administered only after sufficient evidence, an admission and a conclusion that cautioning rather than prosecution served the public interest. The appellant had accepted the caution on the express basis that he would not be prosecuted. While that caution remained effective, the private prosecution was abusive. A victim with legal grounds to challenge the caution could seek judicial review; if the caution were quashed, the impediment would be removed.

5. The House distinguished Hayter v L [1998] 1 WLR 854, where the cautions expressly preserved the possibility of proceedings by an aggrieved party. The broader contention that every subsisting formal caution precludes any later prosecution was left unresolved. It had not been argued below, the relevant public authorities were not represented, and its implications required fuller argument or legislative consideration.

1. House of Lords: The appeal was allowed unanimously. The decision of the Divisional Court was set aside, the justices’ stay was upheld and the private prosecution was dismissed: [2006] UKHL 41.
2. Queen’s Bench Divisional Court: On an appeal by case stated, Sedley LJ and Beatson J held that the administration and acceptance of the caution did not make the private prosecution an abuse of process: [2005] EWHC 931 (Admin).
3. St Helens justices: The justices held that permitting the private prosecution to continue would be an abuse of process and stayed the proceedings.