Wilbur
New Member
Any policy preventing arrest, caution or prosecution for simple possession of cannabis, which had been reclassified as a class C drug, in the light of national guidance issued by the Association of Chief Police Officers, that a police officer should not arrest a person found in simple possession of cannabis unless certain aggravating factors were present, would be unlawful.
The Queen’s Bench Divisional Court so held (Mr Justice Walker dissenting) when dismissing an application for judicial review by Norville Mondelly to quash the decision of a Metropolitan Police inspector to administer a caution to him for simple possession of cannabis.
Police officers had gone to Mr Mondelly’s address by mistake and were invited in where they noticed the smell of cannabis and found a small amount of cannabis resin together with smoking paraphernalia.
The police then arrested the claimant for allowing his premises to be used for the smoking of cannabis contrary to section 8(d) of the Misuse of Drugs Act 1971 and took him to the police station.
There was insufficient evidence to charge the claimant with the section 8(d) offence, but the duty inspector decided to caution him for simple possession of cannabis, on the basis of the cannabis found, his admission in interview and the fact that he had a previous caution for the same offence.
The duty inspector was aware of the Standard Operating Procedures and Metropolitan Police Service Notice 3/2004, which was issued to police officers on the same day that cannabis was reclassified as a class C drug.
That notice stated that where adult offenders were found in possession of cannabis, and the officer was satisfied that it was for the offender’s own use, the officer should not arrest the offender unless certain aggravating factors were present, none of which was in the instant case.
It stated that the drug had to be seized and that no further action should be taken, although it was silent on the issue of cautioning. The police inspector was of the opinion that the notice did not state that no arrests should be made, or that it was inappropriate to caution.
The claimant applied for judicial review of the decision to caution him, contending that the caution was administered in breach of the relevant police notice on arrests, applicable to cautions, which was either ignored or misconstrued by the officer.
Mr Keir Starmer, QC and Mr Hugh Southey for the claimant; Mr Jason Beer for the commissioner.
LORD JUSTICE MOSES said that if there was a police or Crown Prosecution Service policy that no one should be prosecuted for simple possession of cannabis unless it fell within some specified aggravating circumstances, and if that were said to make a decision to prosecute unlawful, that would be an unlawful policy.
Parliament had not enacted those aggravating factors into the offence of simple possession and it was not for executive prosecution policy to change it.
The implication of the claimant’s argument was that by policy, a police force or the Home Office could suspend or dispense with part of the law as enacted by Parliament.
Their statutory power of arrest, conferred by section 24 of the Police and Criminal Evidence Act 1984, and their power to prosecute would become a mere power of seizure unless non-statutory and variable aggravating factors were present, which would be an unlawful policy.
To succeed in his claim, the claimant would have to establish a clear policy not to administer a caution, by reference to the policy relating to arrest. He could not do that for a number of reasons.
First, there was no clear policy precluding arrest, caution or prosecution for simple possession of cannabis on which anyone found in possession could rely, since Notice 3/2004 expressly provided that it was not intended to interfere with the discretion of a police officer.
Second, there was nothing in the notice which stated that it was applicable to cautioning or prosecution after arrest. There was a policy in place which dealt with cautions, which did not adopt the arrest notice or limit the application of the caution in some related way.
Third, the intention of the notice was aimed at ensuring that police time and effort was spent on more serious offences.
Fourth, the notice was itself unclear; while it referred to no further action being taken, which could give rise to an inference that there should be no caution, it did not say so explicitly.
Mr Justice Ouseley agreed and Mr Justice Walker delivered a dissenting judgment.
Newshawk: user - 420 Magazine
Source: The Sunday Times
Pubdate: 7 November 2006
Copyright: 2006 Times Newspapers Ltd.
Contact: news@timesonline.co.uk
Website: World, UK and Business news and comment from The Times and The Sunday Times -TimesOnline
The Queen’s Bench Divisional Court so held (Mr Justice Walker dissenting) when dismissing an application for judicial review by Norville Mondelly to quash the decision of a Metropolitan Police inspector to administer a caution to him for simple possession of cannabis.
Police officers had gone to Mr Mondelly’s address by mistake and were invited in where they noticed the smell of cannabis and found a small amount of cannabis resin together with smoking paraphernalia.
The police then arrested the claimant for allowing his premises to be used for the smoking of cannabis contrary to section 8(d) of the Misuse of Drugs Act 1971 and took him to the police station.
There was insufficient evidence to charge the claimant with the section 8(d) offence, but the duty inspector decided to caution him for simple possession of cannabis, on the basis of the cannabis found, his admission in interview and the fact that he had a previous caution for the same offence.
The duty inspector was aware of the Standard Operating Procedures and Metropolitan Police Service Notice 3/2004, which was issued to police officers on the same day that cannabis was reclassified as a class C drug.
That notice stated that where adult offenders were found in possession of cannabis, and the officer was satisfied that it was for the offender’s own use, the officer should not arrest the offender unless certain aggravating factors were present, none of which was in the instant case.
It stated that the drug had to be seized and that no further action should be taken, although it was silent on the issue of cautioning. The police inspector was of the opinion that the notice did not state that no arrests should be made, or that it was inappropriate to caution.
The claimant applied for judicial review of the decision to caution him, contending that the caution was administered in breach of the relevant police notice on arrests, applicable to cautions, which was either ignored or misconstrued by the officer.
Mr Keir Starmer, QC and Mr Hugh Southey for the claimant; Mr Jason Beer for the commissioner.
LORD JUSTICE MOSES said that if there was a police or Crown Prosecution Service policy that no one should be prosecuted for simple possession of cannabis unless it fell within some specified aggravating circumstances, and if that were said to make a decision to prosecute unlawful, that would be an unlawful policy.
Parliament had not enacted those aggravating factors into the offence of simple possession and it was not for executive prosecution policy to change it.
The implication of the claimant’s argument was that by policy, a police force or the Home Office could suspend or dispense with part of the law as enacted by Parliament.
Their statutory power of arrest, conferred by section 24 of the Police and Criminal Evidence Act 1984, and their power to prosecute would become a mere power of seizure unless non-statutory and variable aggravating factors were present, which would be an unlawful policy.
To succeed in his claim, the claimant would have to establish a clear policy not to administer a caution, by reference to the policy relating to arrest. He could not do that for a number of reasons.
First, there was no clear policy precluding arrest, caution or prosecution for simple possession of cannabis on which anyone found in possession could rely, since Notice 3/2004 expressly provided that it was not intended to interfere with the discretion of a police officer.
Second, there was nothing in the notice which stated that it was applicable to cautioning or prosecution after arrest. There was a policy in place which dealt with cautions, which did not adopt the arrest notice or limit the application of the caution in some related way.
Third, the intention of the notice was aimed at ensuring that police time and effort was spent on more serious offences.
Fourth, the notice was itself unclear; while it referred to no further action being taken, which could give rise to an inference that there should be no caution, it did not say so explicitly.
Mr Justice Ouseley agreed and Mr Justice Walker delivered a dissenting judgment.
Newshawk: user - 420 Magazine
Source: The Sunday Times
Pubdate: 7 November 2006
Copyright: 2006 Times Newspapers Ltd.
Contact: news@timesonline.co.uk
Website: World, UK and Business news and comment from The Times and The Sunday Times -TimesOnline
