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Law report: Private prosecution was not an abuse of process

The launching of a private prosecution against a young person charging him with an offence for which he had received a police caution was not an abuse of the process of the court.

H v L and another; Queen's Bench Divisional Court (Lord Justice Schiemann and Mr Justice Poole) 29 January 1998

The Divisional Court allowed the appellant's appeal by way of case stated against the decision of the Basildon Youth Court to stay a private prosecution brought by him as being an abuse of the process of the court.

The appellant's son had been assaulted by the respondents, causing him actual bodily harm. They were cautioned by the police, each having had the benefit of legal advice, and signed a form which indicated in terms that such cautions did not preclude the bringing of proceedings by an aggravated party.

The appellant subsequently laid informations against the respondents, alleging affray and assault occasioning actual bodily harm. The justices found that because the respondents had been cautioned by the police, the proceedings should be stayed as an abuse of the process of the court, and dismissed the informations.

Luke Blackburn (John Hayter, Southend-on-Sea) for the appellant; John Livingston (Diver Harvey & Phillpott, Basildon) for the respondents.

Mr Justice Poole said that the justices had said in the case stated that they were of the opinion that cautioning provided an important alternative to prosecution in the case of a young offender where there had been an admission of guilt, and in appropriate circumstances, such as where the offender was of previous good character.

Whilst the administering of cautions to the respondents was not a bar to the institution of criminal proceedings by the appellant in relation to offences arising out of the same incident in respect of which they had been cautioned, the justices had found that it was unfair and oppressive to the respondents to allow the proceedings to continue as that would frustrate the purpose of cautioning them, and would, further, undermine the policy adopted by the local police of cautioning young offenders in appropriate circumstances.

It had been submitted on behalf of the appellant that the reasons put forward in the case stated were not ones which could have been used by the magistrates to make a proper finding of law. There was no potential unfairness to the respondents in the prosecution, and proceedings should be stayed as an abuse of process only in exceptional circumstances.

Counsel for the respondents had argued that the very purpose of the cautioning procedure would be seriously and adversely affected if private prosecutions of offenders who had been cautioned were routinely permitted, and that such prosecutions should be stayed except where the prosecutor could successfully argue on the facts of the particular case that the police had acted wrongly or unreasonably in resorting to the cautioning procedure.

That argument, if accepted, would present a most significant constraint upon private prosecutions which had not existed previously and which had never been contemplated by either the courts or the legislature. The right of private prosecution was expressly preserved by section 6(1) of the Prosecution of Offenders Act 1985. It was subject to a number of procedural limitations, and the court should not, in effect, add what would amount to a further category of restraint. Whether an offender's admission, explicit in every caution case, could be used against him in a subsequent prosecution was a matter for the court's discretion, both at common law and under section 78 of the Police and Criminal Evidence Act 1984.

The reasons put forward in the case stated were not ones that could properly be used by the magistrates to make a proper finding of law; there was no unfairness or potential unfairness to the respondents in the proposed prosecution; and the trial process contained sufficient common law and statutory mechanisms to ensure fairness in circumstances such as the present. The appeal would be allowed.

- Kate O'Hanlon, Barrister