Guest v Director of Public Prosecutions

A decision not to prosecute and the associated decision to administer a conditional caution may constitute one composite decision. If the prosecution decision is unlawful, the conditional caution is likewise liable to be quashed. Conditional cautioning must comply with the evidential and public interest tests, the statutory framework, and applicable prosecutorial guidance. The remedy remains discretionary and may be refused if quashing would be merely academic. That will generally require a high degree of certainty that any subsequent prosecution would be stayed as an abuse of process. Where the caution is quashed and the offender’s payment and admission are undone, a subsequent prosecution will not necessarily be abusive.

The claimant sought judicial review of the decision by the Crown Prosecution Service not to prosecute the interested party for an alleged assault occasioning actual bodily harm. Instead, the interested party received a conditional caution under the Criminal Justice Act 2003, requiring payment of compensation.

The Director of Public Prosecutions conceded that the decision not to prosecute was unlawful because the evidential and public interest tests favoured prosecution. The issues were whether the conditional caution should also be quashed, whether quashing would be academic because a later prosecution might constitute an abuse of process, and whether the Director should reconsider the matter.

1. Composite decision. The decision not to prosecute and the authority to administer the conditional caution were part and parcel of the same decision. Since the decision not to prosecute was conceded to be flawed, the conditional caution was also liable to be quashed.
2. Public law defects. The alleged assault passed both limbs of the Code for Crown Prosecutors’ Full Code Test. The circumstances indicated serious violence, possible premeditation and a substantial public interest in prosecution. The Director’s guidance did not permit a conditional caution for assault occasioning actual bodily harm. In any event, conditional cautioning was not an appropriate or proportionate response to the alleged offending.
3. The decision also failed to give proper attention to the victim’s views, the suitability of the compensation, and the seriousness of the injuries. The factors relied on by the prosecutor, including the claimant’s old convictions, could not support the decision.
4. Discretionary remedy. Judicial review relief is discretionary. A quashing order should not be made if it would be merely academic because any later prosecution would certainly or almost certainly be stayed as an abuse of process. The principles summarised in R v Abu Hamza [2007] 1 Cr App R 27 require careful consideration of the particular facts. Abuse of process is exceptional.
5. Quashing would not be academic. The interested party’s payment would be returned and his admission, made within the conditional-caution procedure, would not stand. He would therefore be no worse off than if the unlawful decision had never been made. A subsequent prosecution would not necessarily affront public justice. Jones v Whalley [2006] 1 WLR 179 was persuasive support for that conclusion, despite the differences between the cases.
6. The decision not to prosecute and administer the conditional caution was quashed by one order. The Director of Public Prosecutions was directed to reconsider the decision. The order did not direct the Director to reach any particular outcome.

not stated in the judgment.