Robson, R (On the Application Of) v Crown Prosecution Service

A prosecutorial policy may guide the exercise of discretion, but it must not exclude consideration of exceptional individual circumstances where Parliament has conferred a discretion. Neither the Criminal Justice Act 2003 nor the approved Code of Practice excluded conditional cautions in domestic violence cases. Guidance stating that such cautions may not be offered had to be read as permitting rare exceptions. Treating it as an inflexible prohibition unlawfully fettered prosecutorial discretion. The resulting decision was quashed and remitted for reconsideration.

The claimant admitted criminal damage to property belonging to a former domestic partner and had paid compensation. The CPS prosecuted her rather than offering a conditional caution because it treated the offence as domestic violence and considered conditional cautions unavailable in such cases. The claimant challenged the CPS decision and the relevant prosecutorial guidance by judicial review. The central issue was whether the guidance lawfully permitted a conditional caution to be considered in an exceptional domestic violence case.

1. Statutory framework. Part 3 of the Criminal Justice Act 2003 and the Code of Practice did not exclude conditional cautions for domestic violence or abuse. Section 25(2)(a) permitted the Code to address the circumstances in which conditional cautions might be given, but neither the Act nor the Code authorised a mandatory exclusion of an entire category of cases.
2. Unlawful fetter. The Guidance and Guidelines had been interpreted by the CPS as creating an inflexible rule. A policy may promote certainty and consistency, but it must remain responsive to relevant circumstances in individual cases. A policy that prevents departure from the policy or excludes relevant considerations fetters the statutory discretion. The principle stated in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 and [2011] 1 AC 245, and explained in R v Home Secretary, ex parte Venables [1998] AC 407, applied.
3. Proper interpretation. The Guidance and Guidelines were not unlawful if interpreted as permitting exceptions by necessary implication. Outside the pilot schemes, conditional cautions in domestic violence cases would ordinarily be rare where the evidential test was satisfied, but the possibility of an exceptional case had to remain. The general policy approach to domestic abuse was not otherwise undermined.
4. Disposition. The CPS decision was based on the mistaken view that no exception was possible. It was quashed. The CPS was required to reconsider the prosecution decision with the discretion properly understood. The court could not determine the outcome. Relevant matters could include the victim’s true attitude, compensation, resource implications and the desirability of avoiding unnecessary criminalisation. The decision concerning a simple caution was not challenged, although reconsideration of that decision remained open where appropriate.

The judgment itself was the first-instance determination of a judicial review claim. The magistrates’ proceedings had been adjourned while the CPS was required to clarify whether it intended to prosecute. The Administrative Court quashed the CPS decision dated 19 August 2015 and required reconsideration.