(D and B), R (on the application of) v Commissioner of Police for the Metropolis & Ors

Police and prosecuting authorities retain a substantial evaluative discretion when deciding whether a young offender should receive a reprimand or final warning or be prosecuted. A mistake in applying a gravity-scoring scheme does not necessarily invalidate the decision where the eventual prosecutorial decision to proceed is sustainable and the result would not usefully be different on reconsideration. The court will intervene only in a clear case involving an unexplained departure from statutory guidance. A legitimate expectation that prosecution will not proceed requires a clear representation from which it would be unfair to resile. A tentative indication that a final warning will be recommended does not necessarily satisfy that requirement.

Two young people sought judicial review of decisions arising from criminal-damage proceedings in the Croydon Youth Court. They challenged the police decision to charge rather than administer final warnings, the Crown Prosecution Service decision to continue the prosecution, and the Youth Court’s refusal to stay proceedings as an abuse of process.

The claimants relied on the statutory reprimand and final-warning scheme under the Crime and Disorder Act 1998, related guidance, and an alleged representation made by a prosecutor at an earlier hearing. The central issues were whether the authorities had unlawfully departed from the guidance and whether the prosecutor’s words created a legitimate expectation.

1. The application for judicial review was dismissed. The stay on the Croydon Youth Court proceedings was lifted, and those proceedings were to continue as expeditiously as possible. No order for costs was made against the claimants because of their age, means and public funding.

2. The statutory scheme under section 65 of the Crime and Disorder Act 1998 requires consideration of whether prosecution is in the public interest, but it does not remove the evaluative judgment entrusted to the police. The guidance and Home Office Circular required the gravity score for criminal damage simpliciter to be increased by no more than one point, even where several aggravating factors existed. The police officer had therefore erred in treating the case as gravity score 4 rather than 3.

3. That error did not require the decision to be quashed. Applying the approach in R (A) v South Yorkshire Police [2007] EWHC 1261 (Admin), the court should intervene only where an unexplained departure from the statutory guidance is clearly established. The Crown Prosecution Service had independently reached a sustainable decision that prosecution was appropriate. In those circumstances, reconsideration of the police decision would serve no useful purpose.

4. The officer was entitled to consider the estimated damage, the group nature of the offending, the deliberate conduct, the absence of remorse, and local experience of criminal damage. He was not required to defer the decision until photographs or valuation evidence were available. The Crown Prosecution Service’s decision was likewise lawful and rational.

5. A legitimate expectation required a clear representation from which it would be unfair to resile. The court clerk’s note and counsel’s evidence established, at most, that the prosecutor would recommend final warnings for the claimants. They did not establish a promise or clear representation that final warnings would be administered. The Youth Court was therefore entitled, and effectively bound, to reject the abuse-of-process application.