Owusu-Yianoma, R (On the Application Of) v Chief Constable of Leicestershire

A conditional caution is lawful only if every statutory pre-condition in section 23 of the Criminal Justice Act 2003 is satisfied in relation to the offence for which the caution is given. The decision-maker must have sufficient evidence to provide a realistic prospect of conviction for that offence before relying on any subsequent admission. An admission signed as part of the caution cannot cure the absence of that prior evidential assessment. A caution for an offence containing additional elements cannot be justified merely because the evidence supported a different, lesser public-order offence. Breach of an important statutory pre-condition warrants quashing, notwithstanding the court’s general reluctance to interfere with conditional cautions.

The claimant sought judicial review of a conditional caution imposed after his arrest for a public-order offence. He had been arrested for an offence under section 5 of the Public Order Act 1986, but the caution was administered for the more serious offence under section 4A.

The parties disputed the circumstances of the arrest, detention, admission and administration of the caution. No application was made to cross-examine the witnesses. The central issue was whether the statutory and Code requirements for a conditional caution had been satisfied in relation to the section 4A offence.

1. Disposition. The application for judicial review was granted and the conditional caution was quashed. The court ordered summary assessment of costs in the sum of £10,000 including VAT.
2. Factual disputes. Judicial review is not normally the appropriate forum for resolving disputed facts. Where cross-examination is sought, an application should be made. In the absence of such an application, the disputed facts were resolved in the defendant’s favour, applying R (on the application of Al-Sweady and Others) v Secretary of State for Defence [2009] EWHC 2387.
3. Statutory requirements. Section 23 of the Criminal Justice Act 2003 requires, cumulatively, evidence that the offender committed the offence, a determination that there is sufficient evidence to charge him with that offence, a determination that a conditional caution is appropriate, an admission, an explanation of the caution and its consequences, and the offender’s signature. The requirements relate to the offence ultimately forming the subject of the caution.
4. The evidence could support a section 5 charge. Under section 5 of the Public Order Act 1986, it was unnecessary to prove that anyone was actually harassed, alarmed or distressed; it was enough that the words were used within the hearing or sight of a person likely to be so affected, as explained in Holloway v DPP [2004] EWHC 2621 (Admin).
5. The section 4A offence required proof of intent to cause harassment, alarm or distress and that another person was in fact so affected. The evidence contained no evidence that any police officer, member of the public or doorman had experienced the required reaction. The decision-maker therefore could not properly conclude that section 23(2) was satisfied for section 4A, or that the Code’s realistic-prospect requirement was met.
6. The claimant’s signatures and admission could not cure the prior failure. The evidential decision had to precede the admission; otherwise the statutory requirements concerning evidence and sufficient grounds to charge would be otiose. The court distinguished the relatively insignificant Code breach considered in Lee v Chief Constable of Essex Police [2012] EWHC 283 (Admin), because this case involved an important statutory pre-condition.
7. The court could not substitute a section 5 caution for the invalid section 4A caution. Since the caution remained on the claimant’s record and had never been properly administered, it had to be quashed.