Lowden, R (on the application of) v Chief Constable of Northumbria Police

A police or CPS simple caution does not, by itself, bar a subsequent private prosecution. The position differs where the caution contains a positive and express representation that the offender will face no further criminal proceedings; while that representation remains operative, a later prosecution will ordinarily be an abuse of process. Silence or an imperfect warning does not generally remove the statutory right to bring a private prosecution. A summons should not be refused merely because abuse of process may later be argued; that issue is ordinarily determined at the hearing after evidence and submissions. A decision to administer a caution is reviewed on ordinary public-law grounds, with substantial respect afforded to a rational assessment of the facts, charging practice and relevant guidance.

The claimant sought judicial review of the District Judge’s refusal to issue a summons for a proposed private prosecution arising from an assault. The police had arrested the proposed defendant for an offence under section 47 of the Offences Against the Person Act 1861 but administered a simple caution. The claimant also challenged the police decision to administer the caution.

The refusal was based on the existence of the extant caution and the perceived absence of an express warning that a private prosecution might follow. The central issues were whether the caution precluded a private prosecution and whether the caution itself was unlawful or irrational.

1. Judicial review allowed. The District Judge had no reasonable ground for refusing to issue the summons merely because a previous police caution remained extant. The decision was set aside.

2. Section 6(1) of the Prosecution of Offences Act 1985 preserves, in general terms, an individual’s right to institute a private prosecution. That right should not be curtailed by the courts without due cause.

3. The authorities establish three broad situations. Where the caution expressly warns that a private prosecution may follow, there is ordinarily no bar. Where it expressly represents that the offender will face no further criminal proceedings, Jones v Whalley establishes that a later private prosecution will ordinarily be an abuse of process while the caution remains unquashed. Where the caution is silent, the statutory right to bring a private prosecution is not generally curtailed by that silence.

4. The wording of the caution in this case represented, at most, that the police might take further legal action if new evidence emerged. It did not expressly represent that the victim could not bring a private prosecution. The District Judge was therefore wrong to treat the caution as necessarily preclusive. Whether any later prosecution would constitute an abuse should ordinarily be decided at the prosecution hearing, not by refusing to issue a summons when the grounds for issuing it are otherwise made out.

5. The challenge to the caution itself failed. On the information available at the time, including the admission, absence of previous convictions, apparent minor injury and charging assessment, administering a caution was a reasonable decision. Failure to follow parts of the 2013 Ministry of Justice guidance did not require the caution to be quashed because there had been substantial compliance and no express assurance excluding a private prosecution.

6. The court observed that police caution forms should follow the guidance and that a common national form would avoid confusion. Any later sentencing court could take account of the delay and the fact that a caution had initially been administered.

The claim was a first-instance judicial review of the District Judge’s decisions, communicated on 2 October and 10 November 2015, refusing to issue a summons. Permission was granted by Langstaff J on 19 February 2016. The Divisional Court allowed the claim and set aside the refusal to issue the summons.