pre action protocol letter

We represented a 16 year old child who had been charged with an offence of possession of a bladed article in a private place. They had been found in possession of a ‘zombie style’ knife by the police. Despite being arrested, our client was not interviewed. This meant that the police, and the Crown Prosecution Service (CPS), had no information about why our client was in possession of the knife.

First hearing

At our client’s first appearance, we made an application to adjourn their case. This was so that we could make representations that the matter should be disposed of by way of an out of court resolution (OOCR). The CPS opposed the application. They confirmed that the matter had been reviewed. Despite having no information about our client and their personal circumstances, it had been decided that the matter would proceed by way of a prosecution. In opposing our application, they relied on:

  • our client’s age,
  • the type of knife and,
  • the circumstances of the possession.

The Court nonetheless granted our application.

Representations to the Crown Prosecution Service

We subsequently made representations to the CPS. However, they maintained that the matter was not suitable for an OOCR, relying on similar reasons to those previously provided. We therefore served a pre-action protocol letter challenging this decision. In summary, we argued that:

  • The decision to refuse an OOCR had been made on the basis of unpublished CPS guidance. This guidance contains a list of different knives which ‘may’ not be suitable for an OOCR, regardless of a child’s age. We argued that the suggestion that they ‘may’ not be suitable was performative, and that in practice, OOCR’s would always be refused in such cases and this amounted to a fettering of discretion.
  • The CPS had failed to properly apply the NPCC Child Gravity Matrix, erroneously relying on the distinction between children aged 16 and over and those aged 15 and under.
  • The CPS had failed to take into consideration relevant factors and had taken irrelevant information into account.
  • The CPS had failed to adopt a ‘Child First’ approach. They had failed to consider the extensive guidance which confirms that the unnecessary criminalisation of children must be avoided.

Outcome

After considering our pre-action protocol letter, the CPS agreed that the matter could be disposed of by way of a Youth Conditional Caution.

Our client was represented by Sabrina Neves, a Solicitor in our specialist Youth Crime Team.