A, R (on the application of) v South Yorkshire Police & Anor

Judicial review of a decision to prosecute young offenders will rarely succeed merely because the decision-maker made an error in applying non-binding guidance. Intervention is justified only where the decision resulted from a departure from statutory guidance for which there is no rational explanation, and intervention remains discretionary.

Where an offence would ordinarily attract a final warning, the decision-maker may nevertheless prosecute in exceptional circumstances. The seriousness and circumstances of the offending, including group conduct, the use of knives and extensive damage, may rationally justify prosecution. The Crown Prosecution Service must review the case in accordance with the statutory scheme and relevant guidance, but need not undertake disproportionate investigations into each defendant’s circumstances where the material facts are available and the offending is a serious joint enterprise.

Six minors sought judicial review of decisions by South Yorkshire Police to charge them with criminal damage rather than issue final warnings, and of the Crown Prosecution Service’s decision to continue the prosecutions. The claims arose from damage caused by youths to a school bus, involving knives and extensive damage.

The defendants accepted that the offences had been given an incorrect gravity score of 4 rather than 3. The claimants argued that the police and CPS had failed to follow the Final Warning Scheme, Circular 14/2006 and the Code for Crown Prosecutors, including by failing to assess individual circumstances and the effectiveness of diversion. The central issue was whether the decisions were legally unsustainable because of an unjustified departure from the statutory guidance.

1. Disposition. Permission to apply for judicial review was granted, but both claims were dismissed. The court made no order for costs between the first defendant and the claimants and permitted detailed assessment of the claimants’ publicly funded costs.
2. The proper forum was the Administrative Court. The claims raised wider policy issues concerning the operation of the youth justice scheme, rather than matters confined to the fairness of the criminal trials. The delay in bringing the proceedings was unfortunate but did not justify summary dismissal.
3. The court should not substitute its own view for that of the prosecuting authority. It should intervene only where it is clearly established that the decision to prosecute resulted from a departure from the statutory guidance for which there was no rational explanation. Any intervention would remain discretionary: [2007] EWHC 1261 (Admin), paras 65 and 74.
4. The police had made an error in assigning gravity score 4 rather than 3. A score of 3 normally called for a warning, but the guidance permitted departure from that normal response in exceptional circumstances. The number of youths, the handing round and use of knives, the extensive damage to a public bus and the contemporary concern about knife use provided a rational basis for prosecution: paras 69–76.
5. The CPS had independently reviewed the prosecutions, considered the statutory scheme, Circular 14/2006 and the Code, and made enquiries of the relevant Youth Offending Services. Its decision to treat the incident as a serious joint enterprise and to prosecute all the claimants was not irrational or an unjustified departure from the guidance. The prosecutor was not required to undertake further investigations where no particular missing information had been identified: paras 77–93.
6. The court rejected the legitimate-expectation claim because, on the evidence, it had to proceed on the basis that no assurances had been given that the claimants would receive warnings: paras 57–58.

This was a first-instance judicial review decision of the Divisional Court of the Queen’s Bench Division. The judgment records that any application for leave to appeal or certification of a point of law was to be made initially to this court.