Caution Needed - Private Prosecutions and Criminal Cautions

A simple caution is an out-of-court disposal intended for low level, mainly first time, offending. Accepting a caution has never been a straightforward decision however, one significant benefit was the reassurance that – in the usual course of events - a person would only be prosecuted for an offence when they had been issued with a simple caution, if:

1. There was a substantial change in the material circumstances;
2. New evidence comes to light which suggests that the original offence is more serious than previously thought; or
3. The decision to administer a simple caution was wrong.

This left a caution as a proportionate outcome in many instances. However, the acceptance of a caution does not present an absolute bar to a private prosecution.[1] This principle was recently reconsidered and reaffirmed in R (on the application of Lowden) v Gateshead Magistrates’ Court [2016] EWHC 3536 (Admin).

In Lowden, an individual (referred to as DW) returned to his hotel in the early hours of the morning. Shortly thereafter, two women arrived and attempted to join DW in his room. In accordance with hotel policy, the women were not permitted to go further into the hotel. This resulted in a disagreement between DW and hotel staff.  This disagreement culminated in DW punching a hotel employee in the face. The punch rendered the employee unconscious and the police were called. Upon the arrival of the police, DW identified himself as the assailant and apologised for his actions. DW was arrested and upon arrival in custody was offered, and accepted, a simple caution.

This out-of-court disposal did not satisfy the hotel group or the employee.

While not addressed in the judgment, the imposition of a caution is likely to have acted as a bar to the employee engaging the Victim’s Right to Review Scheme. 

The hotel group determined – in accordance with their internal protection of employees policy that they would pursue a private prosecution in this instance. Accordingly, they applied to the Magistrates’ Court for the issuance of a summons. The Magistrates’ Court declined to issue the summons and this decision was challenged by way of judicial review. The Administrative Court held that:

1. The existence of a simple caution administered by the police or the CPS is not in itself a bar to a private prosecution being brought;
2. But, it may be an abuse of process for a private prosecution to be brought if either:
   1. An assurance was given to a defendant in the course of the caution that there will be no prosecution at all; or
   2. Some other good reason exists; and
3. Only a positive or express assurance to a defendant would suffice.

Employers have for a long time been using private prosecution powers as  a route to hold dishonest employees to account.  However, there is an emerging trend of companies taking criminal enforcement into their own hands when their employees are victims of assault as well as instances of criminal damage to their property, on occasions when the Police or the CPS decline to proceed to prosecution.

The factual background in Lowden demonstrates one such example of the use of private prosecutions as an effective method for employers to pursue those who commit criminal offences against members of staff.

It is also a timely reminder of the need for a suspect to take independent and expert legal advice prior to accepting an out-of-court disposal.

Melinka leads the team at Kingsley Napley responsible for conducting private prosecutions. She also a founding member of the UK’s first Private Prosecution Association.  Matthew is an associate solicitor in the Criminal Litigation team and works with Melinka to assist victims of crime who seek justice through the use of private prosecutions.