R (R) v Durham Constabulary and Another

JurisdictionEngland & Wales
JudgeLord Justice Latham
Judgment Date29 November 2002
Neutral Citation[2002] EWHC 2486 (Admin)
Date29 November 2002
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/1979/2002 &

[2002] EWHC 2486 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Before

Lord Justice Latham and

Mr Justice Field

Case No: CO/1979/2002 &

CO/1918/2002

Between
The Queen on the Application of "u"
Applicant
and
Commissioner of Police for the Metropolis
Respondent
The Queen on the Application of "r"
Applicant
and
Durham Constabulary
Respondent

Mr Marc Willers (instructed by Parker Arrenberg Dawson & Cobb) for the Applicant "U"

Miss Anne Stud for the Commissioner of Police for the Metropolis

Mr Geoff Knowles (instructed by Gordon Brown Associates) for the Applicant "R"

Miss Anne Stud for the Chief Constable of Durham Constabulary

Mr Steven Kovats (instructed by the Treasury Solicitor) for the Secretary of State (Interested Party)

Lord Justice Latham
1

This judgment is the judgment of the Court. These two applications raise important questions of principle and practice in relation to the Final Warning Scheme (the Scheme) established by sections 65 and 66 of the Crime and Disorder Act 1998, as amended by the Criminal Justice and Court Services Act 2000 s. 56 (the Act). The Scheme is part of the strategy devised to prevent offending and re-offending by children and young persons. Its aim is to divert children and young persons from their offending behaviour before they enter the court system. It replaced, for children and young persons, the systems of cautions which had previously been in place with a more structured approach intended to prevent re-offending. Depending on the seriousness of the offence, a reprimand is normally given for a first offence and a final warning for a second offence; thereafter the young offender should generally be charged. Following a final warning, the police have a statutory duty to refer the young offender to a Youth Offending Team in order to determine whether or not to provide an intervention programme. The procedures are governed by the provisions of the Act, and guidance issued under the Act by the Home Office.

2

As we have said, the Scheme replaced for young offenders the system of cautions which remains in place for all other offenders. This latter system is informal, in the sense that it is not underpinned by any statutory provision. The procedures are governed by Home Office Circular 18/1994. The critical difference between this system and the Scheme is that, under the circular, a caution can only be given if the offender gives his informed consent to being cautioned. Under the Scheme, neither the Act, nor the Guidance given by the Home Office makes any provision for such consent. Neither a caution, nor a reprimand or final warning, can, however, be given unless the offender has admitted the relevant offence or offences.

3

In the two applications with which we are concerned the claimants, both 15 at the relevant time, were suspected of having committed indecent assaults on young girls; in "U's" case on a station platform; in "R's" case, at school. Both applicants were interviewed and, it is accepted, admitted that they had committed indecent assaults. They claim, however, that those admissions were the result of inducements rendering them unreliable. The respective police authorities determined that the circumstances justified giving final warnings, which were duly administered. The claimants were then required to register under the provisions of the Sex Offenders Act 1997, a consequence of a final warning of which neither was aware prior to its administration. The defendant disputes the circumstances in which it is said that the admissions were made; and the claimant "U" led evidence before us that after the final warning had been administered, the officer administering it so acted as to give rise to a legitimate expectation that the decision to administer the warning would be reconsidered. It is accepted on behalf of both defendants that neither of the claimants was asked whether he consented to the administration of the final warning. And in "U's" case it is accepted that the decision was not in fact reconsidered.

4

We therefore have to resolve three separate issues.

a. In relation to each claimant, we have to determine whether or not the defendants were entitled to rely on the admissions. This does not raise any new issue of principle. It is accepted on behalf of the defendants that unless they can establish that the admissions were reliable, in the sense of not having been obtained by reason of an inducement, then one of the preconditions for the administration of a final warning would not have been met.

b. In the case of "U", we have to determine whether the evidence supports the assertion that he had a legitimate expectation as to the way his case would be dealt with which was not met by the police, so as to justify this court in concluding that he had been unfairly dealt with.

c. We have to consider the important submission made on behalf of both claimants that the Act and the Guidance given by the Home Office in relation to the Scheme do not comply with Articles 6, 8 and 14 of the European Convention on Human Rights in that it is not a precondition of the administration of a final warning that an offender should have given his informed consent to that course being adopted. The particular vice about which both claimants complain is that at no stage was either of them informed of the fact that the administration of the final warning would result in a requirement to register under the Sex Offenders Act 1997.

5

With those preliminary observations we propose to set out the relevant statutory provisions, the terms of the circular and the Guidance given by the Home Office before dealing with the factual and legal issues raised by these applications.

Cautions

6

Paragraph 2 of Home Office Circular 18/1994 provides:

"Decision to caution

2. A formal caution is a serious matter. It is recorded by the police; it should influence them in their decision whether or not to institute proceedings if the person should offend again; and it may be cited in any subsequent court proceedings. In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered.

- There must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction;

- The offender must admit the offence;

- The offender (or in the case of a juvenile his parents or guardian) must understand the significance of a caution and give informed consent to being cautioned"

The Crime and Disorder Act 1998 (as amended)

7

"65. Reprimands and Warnings

(1) Subsections (2) to (5) below apply where –

(a) a constable has evidence that a child or young person, (the offender) has committed an offence;

(b) a constable considers that the evidence is such that, if the offender were prosecuted for the offence, there would be a realistic prospect of his being convicted.

(c) The offender admits to the constable that he committed the offence;

(d) The offender has not previously been convicted of an offence; and;

(e) The constable is satisfied that it would not be in the public interest for the offender to be prosecuted.

(2) Subject to sub-section (4) below a constable may reprimand the offender if the offender has not previously been reprimanded or warned.

(3) The constable may warn the offender if –

(a) the offender has not previously been warned; or

(b) where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought;

but no person may be warned under (b) above more than once.

(4) Where the offender has not been previously reprimanded, the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning.

(5) The constable shall –

(a) where the offender is under the age of 17, give any reprimand or warning in the presence of an appropriate adult; and

(b) explained to the offender and where he is under that age, the appropriate adult in ordinary language –

(i) In the case of a reprimand, the effect of sub-section (5)(a) of section 66;

(ii) In the case of a warning, the effect of sub-sections (i), (ii), (iv) and (v) (b) and (c) of that section and any guidance issued under sub-section 3 of that section.

(6) The Secretary of State shall publish in such a manner as he considers appropriate, guidance as to –

(a) The circumstances in which it is appropriate to give reprimands or warnings, including criteria for determining –

(i) for the purposes of subsection (3)(b) above, whether an offence is not so serious as to require a charge to be brought; and

(ii) for the purposes of sub-section (4) above whether an offence is so serious as to require a warning;

(b) the category of constable by whom reprimands and warning may be given; and

(c) the form which reprimands and warning are to take and the manner in which they are to be given and recorded….

(9) Any reference (however expressed) in any enactment passed before or in the same Session as this Act to a person being cautioned shall be construed, in relation to any time after that commencement, as including a reference to a child or young person being reprimanded or warned.

66

Effect of Reprimands and Warning.

(1) Where a constable warns a person under section 65 above, he shall as soon as practicable refer the person to a Youth Offending Team.

(2) The Youth Offending Team –

(a) shall assess the person referred to them under ss. (1) above; and

(b) unless they consider it inappropriate to do so, shall arrange for him to participate in a rehabilitation...

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