“ ‘JUST a spliff man’, responded Mr Mondelly when he was arrested by two police officers at his home at 9.30pm on February 16, 2005. He was unfortunate.”

So starts the judgment of Lord Justice Moses in a case which looked at whether it was unlawful to caution a person in possession of cannabis after the introduction of the policy by the Metropolitan Police in 2003 not to arrest people for the offence in the absence of aggravating circumstances. Mr Mondelly was arrested at home in Hackney by the police after they had gone to his house by mistake and noticed the smell of cannabis. They suspected him of allowing his house to be used for smoking cannabis, but after a time at the police station this allegation was dropped. He was cautioned for possession and released.

Mr Mondelly sought judicial review of the decision to caution him, saying that the policy relating to arrest should also apply to cautions and that the police should simply have warned him, confiscated his drugs, and let him go.

The High Court was split in its response to the challenge, which perhaps reflects some of the confusion created in the criminal justice system by having a policy which suggests that a certain part of the criminal law should not usually be enforced.

Lord Justice Moses was of the strong view that it was not possible for a policy announced by a police force to fetter the discretion created in a statute for a constable to carry out an arrest. Nor could the policy on arrest simply be carried across and applied to the administering of cautions. In any event, the policy did not say in terms that no arrests or cautions would take place for possession. The police were under no duty to provide an explanation for cautioning Mr Mondelly and he had not been dealt with unlawfully. Mr Justice Ouseley agreed with this approach, and it is, for the present, the law.

But Lord Justice Walker delivered a strong dissenting judgment. He was clearly impressed by the injustice suffered by Mr Mondelly. While recognising that the courts should only rarely interfere in criminal justice decisions, the judge thought the caution was indeed in clear breach of the policy. The judge was of the view that if Mr Mondelly had been prosecuted rather than cautioned he would have had a strong case in the criminal court to say that the prosecution was an abuse of process and should be stayed. Therefore, a caution should not be dealt with any differently and should be quashed.

The case contains fascinating passages about the interrelationship between police powers and the application of policy in enforcing the law. However, it may take further appeals to decide finally whether Mr Mondelly was justly branded a criminal for having that spliff or if, in fact, the police had been acting unlawfully.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers E-mail: s.cragg@doughtystreet.co.uk

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