Neutral Citation Number: [2013] EWHC 375 (Admin)
Case No: CO/1463/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/02/2013

Before :

LORD JUSTICE GOLDRING
MR JUSTICE WYN WILLIAMS
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Between :

	CATIA CAETANO	Applicant	
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	COMMISSIONER OF POLICE OF THE METROPOLIS	Defendant	

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Alison Macdonald (instructed by Bhatt Murphy Solicitors) for the Applicant
Russell Fortt (instructed by Metropolitan Police Solicitors) for the Defendant

Hearing dates: 13 February 2013
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Judgment

Lord Justice Goldring : 

Introduction
1.	On 15th November 2011, Dr. Caetano was given a ‘simple caution’ for an offence of ‘assault by beating’ on her partner Chris Hackett. On 9th March 2012 that caution was confirmed. By her application for judicial review, Dr. Caetano challenges the original decision to caution and its subsequent confirmation.  
The facts
2.	The Claimant is a 32 year old Portuguese national. She is now a doctor of philosophy in molecular and cell biology. On 15 November 2012 she was still studying for her doctorate at University College London.  She and Mr Hackett were living together in her premises.  They had been for ten months. She had never been arrested.  Indeed, she had never been in a police station. 
3.	In early 2011 she first began to suffer from depression. She took overdoses in January and May 2011. In November 2011 she was taking anti-depressants. As she later told the police, there were occasions when Mr. Hackett, who was significantly taller and heavier than her, was violent towards her. She never reported it to the police. She said that was because she loved him. 
4.	On 11th November 2011 the relationship was in the process of breaking up, although they had slept together two days before the incident. Mr. Hackett went out on the evening of the 10th November. He returned at about 1.00 am completely drunk. Dr. Caetano got out of bed to speak to him. Mr. Hackett finally told her that he had had oral sex with someone. Dr. Caetano said that she could not deal with it.  She repeatedly asked him to leave.  He insisted he was not going anywhere. He was speaking in a very arrogant manner. He said he could do whatever he wanted. As she puts it, “I then slapped him on the face out of frustration.” When he continued to refuse to leave she slapped him a second time. She also grabbed his t-shirt which ripped. When she was trying to push him out of the door, he grabbed her; he put his knees on her back, elbowed her back and tried to strangle her. Dr. Caetano tried to cut her wrists with some broken glass. She was bleeding. Mr. Hackett continued to refuse to leave, although he did say he would go in the morning. He grabbed Dr. Caetano again when she was putting some of his belongings outside.  There was a further struggle. Dr. Caetano was thrown backwards on to the floor. At one stage her head struck the sofa. At another he tried to strangle her. She said that she could not breathe. She told him that she was going to call the police but he called them first. When two officers arrived she told them that she had slapped Mr. Hackett first. She told them too that he had tried to strangle her. As she puts it, “the officers seemed to take the view that Chris was the victim because I had slapped him first.”  From then on, as it seems to me, she was regarded as the aggressor, he the victim.
5.	Dr. Caetano first was taken to hospital because of the injuries to her wrists. On 14th November 2011, she went to Charing Cross Hospital for a mental health assessment. She felt that her mental health was deteriorating. She was in an extremely fragile emotional state. Finally, having been bailed to do so, on 15th November 2011 Dr. Caetano went to the police station. 
 Dr. Caetano’s interview
6.	Trainee Detective Constable Gilbert interviewed her. The duty solicitor was with her. She had told the police of her mental history. She is described as tearful, appearing nervous “as she has never been arrested before.” 
7.	In her interview, she gave the account I have set out. She admitted the two slaps, which she said were with the open palm. She did not remember where she slapped him. She described Mr. Hackett putting his knees around her body and trying to strangle her. She described what Ms MacDonald on behalf of Dr. Caetano calls Mr. Hackett’s over-reaction. 
“…he had his arms…with his knees on top of my body and I couldn’t move and he strangled me and I couldn’t breathe. He stopped. I don’t know what was going to happen if he was going to do anything or not and when he stopped I said I’m going to call the police and he had a mobile and he called them first and then he went outside and I went to the bedroom….I told [the police officers who came to the house] that I slapped him first but that he got really aggressive to me and tried to strangle me and that was not acknowledged at all because he was made the victim of the whole thing and I mean I did slap him first.
Do you think it is OK to slap him because of what he had done?
No. …. I did it out of frustration at the situation …”
8.	The officer asked her whether she had any injuries.
“I have some pictures…On my neck…bruising …
The officer had said in her statement that you said that he pushed you by pushing your throat as opposed to strangling you.
He strangled me…
…You have got no bruising around your neck now but you said that you had bruising then bruising has gone down in three or four days.
I have some pictures…On my phone [taken the]…day after by a friend of mine.
What I don’t understand is that bruising doesn’t tend to go down after 3-4 days.
It wasn’t very intense. ….”
9.	Plainly the officer doubted Dr. Caetano’s account. She appears to take the earlier reference to pushing the throat as opposed to strangling as suggesting there was no strangling.  That does not seem to me a good point.  Dr. Caetano is Portugese. She may well not use English with precision. The absence of bruising at the time of the interview is also taken against Dr. Caetano. Given that the officer was offered photographs of it, an offer which she did not take up, that too does not seem to me a good point. 
10.	Dr. Caetano told the officer that Mr. Hackett had been aggressive towards her in the past.
The decision to caution
11.	The decision to offer a caution was taken by Detective Sergeant Oke. The basis upon which he took it is set out in a document referred to as MG3. Sergeant Oke had an account of events as summarised by the officers who attended the premises. That contained a summary of what Dr. Caetano and Mr. Hackett were said to have told the police then.  Among other things, that account states: 
“She … struck him in the face several times and picked up items belonging to him and started throwing them around. [Mr Hackett] stated he then grabbed her wrists and pushed her to the floor to stop her damaging his items. She has then started kicking and punching out at him. At this point he stated he struck her in the back to prevent her hitting him further…
…[Suspect] stated that her boyfriend came home drunk and told her           that he had slept with another woman. She stated that she went mad and slapped and he grabbed her around the throat and pushed her…”
12.	Mr Oke did not have the recording of the interview.  He had a summary. It was neither complete nor accurate. It also reproduced the evident scepticism regarding Dr. Caetano’s account:
“Caetano fully admitted slapping victim a number of times … [she] informed me that Hackett also strangled her when he was restraining her. Caetano told police officers on scene she had been “pushed in the throat” when Hackett pushed her away from him. Caetano couldn’t state why she failed to mention this to police on scene. Caetano stated that she had bruises to her neck as a result of this, however, she stated they had already disappeared after only 4 days and were not now visible.”
13.	 As I have said, Dr Caetano admitted two slaps. The comment that she “fully admitted slapping the victim a number of times,” particularly when taken in conjunction with the summary of the officers at the scene, no doubt led Mr. Oke to think Dr. Caetano was accepting a greater degree of violence than was the case. Moreover, the comments regarding strangling are, for the reasons I have given, misconceived. Looking at it in the round, Mr. Oke was to base his decision on an understanding of the facts which overstates the extent of violence by Dr. Caetano and understates that of Mr Hackett.  Mr. Oke wrote that:
“The [detained person] fully admitted that she slapped the [detained person] several times in the face, therefore the offence of assault is complete. … The fact that the [detained person] states that she was also assaulted by the victim, does not constitute a defence, as she did not claim that her actions were in self-defence. The [detained person] has offered mitigating circumstances during her account. …
It is understandable that when the [detained person] picked up his items, still in a fit of rage, the victim would believe that she would have damaged the property. The victim is entitled to use reasonable force in order to protect his property in the confines of the law. Both parties have stated that Mr Hackett restrained the [detained person] as opposed to going onto the attack in order to stop her destroying or even taking his property.
I note that the victim has provided a statement to police and has included the fact that he does not wish for this matter to support a prosecution for assault of for criminal damage [to his t-shirt].
As this is a physical altercation between two parties that had been in a relationship, this would classify quite correctly a domestic violence case. Rather unfortunately, it is very common that the victim does not wish to prosecute their partner for offences against them for a variety of reasons, however, in line with the seriousness that the Met Police place on all domestic abuse, victimless prosecutions are pushed for, if it is felt there is sufficient evidence for the Crown to present. It is also common that the victim has stated they would not wish to proceed, the Judge would issue a summons requiring the victim to attend court and give evidence.
With the account from the victim, the damage, the damage observed by the police and the admission of the offence on 2 occasions by the [detained person] there is sufficient evidence to provide a realistic prospect of obtaining a conviction.
After reviewing this evidence and applying it against the Full Test Code I am satisfied that Stage 1 (the evidential stage) has been met. ”
14.	Under the heading “Public Interest” Mr Oke stated:
“ … I am also satisfied that Stage 2 (public interest factors) has been fulfilled as a widespread of a common public interest factors tending to favour prosecution have been identified. Having reviewed all the circumstances surrounding this offence including looking at the offenders lack of criminal history and making reference to the ACPO Gravity Factors Matrix, I have determined that this case appropriately be dealt with by an out of court disposal, namely a CAUTION.
Whilst the [detained person] has committed two offences, namely Criminal Damage and Assault by beating, it would not be in the public interest for [her] to be dealt with for both despite her full admissions. The Gravity Factor is relatively low (2) and given the circumstances, a Caution for the main offence would be a fair method of disposal.
In view of the above I am satisfied that the Full Code Test has been met.”
15.	Under the heading “ECHR” Mr. Oke wrote:
“…the facts of this case after taking into consideration the circumstances make a prosecution a necessary and proportionate response to this matter. Article 5, 6, 7, 8 and 14 especially considered.”
The signing of the caution
16.	The duty solicitor advised Dr. Caetano to accept a caution. He said if she did not, the case would go to court. She would get a worse criminal record. She signed. She was feeling extremely distressed. She did not feel that she was in a fit state to absorb what she was told about the consequences of a caution. She did not read the written declaration. When Dr. Caetano (and Mr. Hackett) appreciated the implications, they immediately raised the matter with the police. They sought the withdrawal of the caution. 
Commander Gibson’s decision on 9 March 2012
17.	On 9 March 2012, Mr Gibson reviewed the caution. The interview tape could not be found.  He had the MG3. He stated that the claimant had “admitted striking Mr Hackett.” He referred to Mr Hackett subsequently contacting the police, claiming he had not realised the ramifications of the caution and asking that it be removed. The Commander went on to state:
“[The Directorate of Legal Services] state that [Dr. Caetano] made admissions to the offence both to the officer who attended the scene and in a PACE compliant interview with legal representation present. Furthermore, regarding the CPS Full Code evidential test, Mr Hackett told police (sic) soon after the event that [Dr. Caetano] had struck him in the face several times, although he did not want her to go to court. Therefore, prosecution would not have been in the public interest and taking all the circumstances into account a caution was the most appropriate outcome. Later protestations that the caution was not understood should have less weight than the facts and representations made at the time of the offence and whilst being dealt with for that matter.   
I have considered the representations made on behalf of [the claimant] but do not find them persuasive. The main argument put is that the caution is not administered in accordance with the public interest stage of the CPS Full Code Test for prosecutions and the ACPO Gravity Factors Matrix. I do not concur with this view. This is a domestic violence matter, public and policing policy in this area is quite clear. A case disposal by way of Adult Caution is fully justified. The views of Mr Hackett have been noted. It is not unusual for victims of domestic violence to change their positions. Domestic violence policy recognises this pattern but takes the broader societal view that perpetrators should be given clear messages that violence is unacceptable.
My view in the circumstances is that the caution be retained.”
Guidance
18.	The Home Office, the CPS and ACPO have sought in different documents to provide guidance in this area. The documents are not always easy to follow or reconcile.  They do not seem to me make the task of a police officer who has to take practical decisions on the ground easy.  It may not be surprising that Sergeant Oke and Commander Gibson appear to have had different approaches to the question of the public interest.
The Home Office Circular 016/2008
19.	In 2008 the Home Office issued a Circular about “Simple Cautioning of Adult Offenders.” It was addressed to the Chief Officers of Police. Its purpose was said to be to provide guidance to the police and prosecutors on the use of the simple caution. Among other things, it was intended to encourage greater consistency. 
20.	Paragraph 2 states that a simple caution “may be used for disposing of offences when specified public interest and eligibility criteria are met.”
21.	By paragraph 3 a Simple Caution should be used for “low level offending.” By paragraph 4 “…decisions to issue Simple Cautions must be made in accordance with the Director of Public Prosecution’s guidance on charging.” 
Criteria for a Simple Caution.
22.	The criteria for a simple caution are set out.
“9. When deciding when a Simple Caution is appropriate, a police officer must answer the following questions:
*has the suspect made a clear and reliable admission of the offence either verbally or in writing? …
*Is there a realistic prospect of conviction if the offender were to be prosecuted in line with the Code for Crown Prosecutors, “The Full Code Test?”
*Is it in the public interest to use a Simple Caution as a means of disposal? Officers should take into account the public interest factors set out in the Code for Crown Prosecutors, “The Full Code Test”, in particular the seriousness of the offence. …
*Is a Simple Caution appropriate to the offence and the offender? (with reference to ACPO’s gravity Factors matrix and the offender’s criminal history).
10. If all the above requirements are met, the offence may be suitable for disposal by Simple Caution …
Aggravating or mitigating factors
13 There may be aggravating or mitigating factors in the course of the offence which may increase or decrease its seriousness. The ACPO Gravity Factors Matrix assists officers in deciding whether or not a Simple Caution remains the most appropriate disposal with these factors in mind.
14. Officers should use it to determine the seriousness of the offence. This is initially determined on a scale between 1 and 4 with 1 being the least serious.
15. If there are any aggravating or mitigating factors, then the seriousness of the case will either increase or decrease by one level. The seriousness of an offence may only increase or decrease by one level, regardless of the numbers of aggravating/mitigating factors…
The Victim
20. Before a Simple Caution can be given, it is important to establish, where appropriate and possible:
*The views of any victim about the offence and the proposed method of disposal.
*The nature and extent of any harm or loss, and its significance to the victim: …
21. … Care should be taken to ensure victims are aware that, although their views will be taken into account, they will not be necessarily  conclusive to the outcome. …
Other considerations
23. Does the suspect have a criminal record? …
24. Has the offender been made aware of the significance of a Simple Caution?
* … Under no circumstances should suspects be pressed or induced in any way to admit offences in order to receive a Simple Caution as an alternative to being charged …”
25. Has the suspect given an informed consent to being cautioned?
*”Informed consent” can be given when the suspect has received in writing an explanation of the implications of accepting a Simple Caution before he/she agrees to accept a Simple Caution. After receiving this, if the suspect does not give his/her consent, the police may choose to continue with the prosecution in accordance with the Directors Guidance on Charging. Officers must avoid any suggestion that accepting a Simple Caution is an “easy option.” …
Making the decision
When considering the suitability of an offence for disposal by Simple Caution, the decision should be referred to an officer of at least Sergeant rank …
Consequences of receiving a Simple Caution
33. The significance of the admission of guilt in agreeing to accept a Simple Caution must be fully and clearly explained to the offender before they are cautioned. …
… Particular Offence Types
55. … (i) Violence Against the Person … 
56. generally, the Simple Caution is not appropriate the most serious violence against the person offences. However, where an offence of personal violence is accompanied by any aggravating factors and where the victim does not support a prosecution, the offence may be suitable for disposal by Simple Caution, providing all other criteria are met.
(ii) Domestic Violence
57. Positive action is recommended in cases of domestic violence to ensure the safety and protection of victims and children while allowing the Criminal Justice System to hold the offender to account. A positive action approach considers the incident in its entirety, not just the oral written evidence of the victim. …
58. Where a positive action policy has been adhered to and officers still have a difficulty in securing a charge/summons, forces need to have a system in place to ensure Simple Cautions are considered in preference to an NFA [no further action] decision. …”
23.	There is no doubt that Dr. Caetano’s admission to the two slaps amounted to a clear and reliable admission of the offence of common assault. There was plainly a realistic prospect of a conviction. The issue is, whether it was in the public interest to use a simple caution as the means of disposal.
The Code for Crown Prosecutors
24.	Paragraph 9 of the Home Office Guidance (at paragraph 22 above) refers to the Code for Crown Prosecutors. The Full Code test for deciding the appropriate disposal of a case has two stages. The first is the evidential stage, the second the public interest.  In this case, as I have said, there was sufficient evidence to provide a realistic prospect of conviction.  That is the evidential stage. 
25.	As to public interest, once satisfied there is sufficient evidence to justify a prosecution or to offer an out of court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. (see paragraph 4.11 of the Code)
26.	By paragraph 4.12:
“A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless a prosecutor is satisfied that the public interest may be properly served, in the first instance by offering the offender the opportunity to have the matter dealt with by an out of court disposal …”
27.	Lists, said in terms not to be exhaustive, are set out of those “common public interest factors tending in favour of prosecution” and those “tending against prosecution.” Paragraph 4.17 sets out those tending against prosecution: 
“A prosecution is less likely to be required if:
a)	The court is likely to impose a nominal penalty;
b)	The seriousness and the consequences of the offending can be appropriately dealt by an out-of-court disposal which the suspect accepts and with which he or she complies …
e)	The loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement: …
f)	A prosecution is likely to have an adverse effect on the victims physical or mental health …
i) The suspect has put right the loss or harm that was caused …
j) The suspect or was at the time of the offence, suffering from significant mental or physical ill health …”
28.	Paragraph 7 of the Code deals with out of court disposals. Paragraph 7.6 states that:
“…Prosecutors may direct that a Simple Caution may be offered in accordance with CPS and Home Office guidance …
7.7 Prosecutors must be satisfied that the Full Code Test is met…
7.8 The acceptance of a Simple Caution or other out of court disposal which is complied with takes the place of a prosecution. If the offer of a Simple Caution is refused, a prosecution must follow for the original offence. If any other out of court disposal is not accepted, prosecutors will apply the Full Code Test…”
29.	Ms MacDonald’s argument is simple.  Paragraph 7.8 states that if the offer of a simple caution is refused, there must be a prosecution.  If, in accordance with the Code, a prosecution cannot be justified in the public interest, there cannot be a caution.  On the present facts, a prosecution plainly cannot be justified.  A caution therefore cannot be justified.
The ACPO Gravity Scores
30.	Paragraphs 13-15 of the Home Office Guidance (see paragraph 22 above) require an officer to apply the “ACPO Gravity Factors Matrix” when assessing the gravity of an offence. Mr. Oke assessed the gravity at two.  The ACPO guidance (in appendix L) sets out some general aggravating and mitigating “factors.” The generally mitigating factors include:
“Conviction is likely to result in unusually small or nominal penalty …
Vulnerability of the offender.
Provocation from victim…and offender reacted impulsively…
Offender is or was at the time of the offence suffering from significant mental … ill health and offence is not likely to be repeated…”
31.	The Gravity Score for common assault is two. “Domestic violence” is said to be an aggravating factor. The “Trivial nature of action, impulsive action, injury very minor” are said to be mitigating factors. 
32.	The Guidance states that for a score of 2 there should “Normally [be a] “simple” caution for a first offence … [penalty notice for disorder] may be appropriate”. For a score of 1 it states there should “always [be] the minimum response applicable to the individual offender, i.e. [No Further Action], Simple Caution, [Penalty Notice for Disorder] (or, exceptionally, charge).”
Domestic violence
33.	The guidance does not stop there. In March 2009, the Crown Prosecution Service set out a “Policy for Prosecuting Cases of Domestic Violence.” Paragraph 2 is headed, “What is domestic violence?” It states:
“2.1 there is no specific statutory offence of domestic violence. “Domestic violence” is a general term that describes a range of controlling and coercive behaviours, which are used by one person to maintain control over another with whom they have, or have had, an intimate family relationship. It is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victim…We recognise that both men and women can be victims. Although the majority of victims are women, and taking actions against domestic violence is included as part of the CPS Violence Against Women Strategy, we will apply our domestic violence policy without discrimination in all cases.
2.2 The Government definition of domestic violence against men and women (agreed in 2004) is:
“any incident of threatening behaviour, violence or abuse … between adults who are or have been intimate partners or family members, regardless of gender or sexuality.””
34.	As Mr Justice Wyn Williams pointed out in argument, the government definition is less than helpful when assessing the public interest in any prosecution.  The violence (or threat) does not have to be unlawful. Unlike the CPS definition, it seems to contemplate that any incident of violence in a domestic context will inevitably amount to domestic violence.
The consequences of a caution
35.	Although sometimes referred to in terms of a slap on the wrist without serious consequences, that is not so.  The declaration which anyone who accepts a caution has to sign makes that clear. Dr. Caetano’s position illustrates it.  She is not yet certain of her future employment.  She may wish to work in the United States or Australia.  She has to attend conferences all over the world. A caution for ‘assault by beating’ could be a serious impediment both to travel and work.    
The applicable law
36.	As Lord Justice Schiemann put it in R v Metropolitan Police Commissioner ex parte Thompson [1997] 1 WLR 1519:
“…police officers responsible for applying the Home Office Circular…must enjoy a wide margin of appreciation as to the nature of the case and whether the pre-conditions for a caution are satisfied; and that it will be a rare case where a person who has been cautioned will succeed in showing that the decision was fatally flawed…”
Argument
37.	There is agreement between Ms Macdonald and Mr. Fortt that Dr. Caetano, in terms of the Home Office Guidance, made a “clear and reliable admission of the offence.”   Similarly, in terms of the CPS Code, stage 1 was satisfied.  I should emphasise, that although there was evidence of more slaps, Dr. Caetano’s admission was to two.  It was that admission which had to form the basis of the caution.  
38.	Mr. Oke, on his understanding of the facts and assessment of gravity, said there was a public interest in prosecuting; stage two of the CPS Code had been satisfied. As I have indicated, Ms Macdonald’s submits it is inconceivable that this case would ever be prosecuted. Stage 2 of the Code could not therefore be satisfied. If there could be no prosecution there could be no caution. For paragraph 7.8 of the Code (see paragraph 28 above) makes it clear that if a caution is not accepted there must be a prosecution. 
39.	On the face of it, looking at paragraph 7.8 in isolation, Ms Macdonald is right. Although Mr Fortt drew our attention to the next sentence, I observe that it is said to apply to any “other” out of court disposal.  
40.	It seems to me, as Ms Macdonald finally accepted, that it cannot be the case that a prosecution must inevitably follow a person’s refusal to accept a caution. Paragraph 25 of the Home Office Guidance (paragraph 22 above) contemplates that if a suspect does not consent to a caution the police “may choose” whether to continue with a prosecution. The Code at paragraph 4.12 (see paragraph 26 above) similarly contemplates that the public interest may be satisfied by an out of court disposal. 
41.	That having been said, this case can be approached on a more straightforward basis.  When assessing the public interest, Mr. Oke did so on a flawed understanding of the position.  He believed Dr. Caetano had admitted violence she had not. The extent of her violence was overstated, Mr Hackett’s was understated. I cannot accept Mr. Fortt’s submission that this was immaterial.  
42.	Moreover, on his understanding of the facts, Mr. Oke categorised the gravity of the offence as two. Although he does not explain how he did so, it seems to me clear. The “Gravity Score” for common assault is 2. There was an abundance of “mitigating factors.” That would bring the score down to one. Domestic violence is an “aggravating factor.” Mr. Oke plainly put this case into the category of domestic violence. That brought the score up to two. 
43.	I sympathise with the police officer on the ground, such as Mr. Oke.  He has to make assessments and take decisions in often pressurised and difficult circumstances.  There appears to be a great deal of guidance (including Metropolitan Police guidance which we have not seen) set out in different documents which are not always consistent or easy to follow.  All that said, when he is deciding the gravity of any particular case and the public interest as far as its disposal is concerned, the police officer is bound to have regard to the facts of that case. It cannot be enough, as it seems to me, simply to say, this offence occurred in a domestic context; it is therefore domestic violence; domestic violence aggravates.  Regard must be had to the particular circumstances of the case.  When considering whether violence in a domestic context amounts to an aggravating factor the sorts of considerations set out in paragraph 2.1 of the CPS “Policy for Prosecuting Cases of Domestic Violence” (see paragraph 33 above) may well be helpful.  This case did not begin to amount to the sort of violence contemplated by that paragraph.
44.	Had Mr. Oke firstly,  had a complete and accurate summary of what Dr. Caetano was admitting and, secondly, considered the circumstances of the violence on its merits, he would have been bound to take a different view about the public interest.  These were two impulsive slaps by a vulnerable and unwell woman of excellent character which caused no injury. The context was the return home in the early hours of the morning of a drunken partner who would not leave. It does not seem to me that Mr. Oke in such circumstances could reasonably have categorised gravity as two.  It would have been one.  He would have been bound to conclude not only that a prosecution was inconceivable, but that the public interest did not require a caution.  This was one of those cases in which, on a proper assessment of the facts, no further action was the obvious outcome.  
Commander Gibson’s decision
45.	It follows from what I have said that in my view Commander Gibson’s decision was flawed. Of course he too did not know the interview had been misrepresented. 
Conclusion
46.	It follows that this is one of those rare cases in which in my view the court should intervene. I would grant this application.
47.	It is not necessary to go into any of the other arguments or grounds advanced on Dr. Caetano’s behalf in the circumstances. 
Mr Justice Wyn-Williams:
I agree