R (R) v Durham Constabulary and Another

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD STEYN,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD RODGER OF EARLSFERRY,LORD BINGHAM OF CORNHILL
Judgment Date17 March 2005
Neutral Citation[2005] UKHL 21
Date17 March 2005

[2005] UKHL 21

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lod Brown of Eaton-under-Heywood

Regina
and
Durham Constabulary

and another

(Appellants)

ex parte

R (FC)
(Respondent)

(Criminal Appeal from Her Majesty's High Court of Justice)

Regina
and
Durham Constabulary
(Appellants)

and another

ex parte

R (FC)
(Respondent)

(Criminal Appeal from Her Majesty's High Court of Justice)

(Conjoined Appeals)

LORD BINGHAM OF CORNHILL

My Lords,

1

In sections 65 and 66 of the Crime and Disorder Act 1998 Parliament legislated to replace the non-statutory procedure which then existed for the cautioning of children and young persons ("young offenders") believed to have committed crimes by a new procedure for reprimanding or warning such offenders. There were a number of similarities between the two procedures, but two differences significant in this appeal: whereas cautions could be given to adult and young offenders alike, reprimands and warnings may only be given to young offenders; and whereas a caution could be given to a young offender only if the young offender's parent or guardian consented to its being given, no such requirement is imposed, at any rate expressly, in relation to reprimands and warnings. In the present case the appellant was given a warning under the 1998 Act to which neither he nor his stepfather, acting as an appropriate adult, consented, and in these proceedings he challenged the lawfulness of the warning given to him on the ground that the procedure was, without consent, incompatible with article 6 of the European Convention on Human Rights. That challenge was upheld by the Queen's Bench Divisional Court (Latham LJ and Field J: [2002] EWHC 2486 (Admin); [2003] 1 WLR 897), which accordingly quashed the decision to warn the appellant. The Chief Constable of the Durham Constabulary and the Secretary of State for the Home Department contend that that decision was wrong in law.

2

The age of criminal responsibility established in this country is, in comparison with that in most European countries, low. This has made it possible to prosecute young offenders who have not, or who have scarcely, entered their teens. But it has long been recognised as undesirable in many cases for young offenders to be drawn into the process of the criminal courts (including juvenile and youth courts) unless this is really necessary. So informal procedures grew up to deal with cases which were not so serious as to leave no realistic alternative to prosecution. There were always, of course, some cases which, although disclosing a breach of the criminal law, were so trivial as to be properly ignored or dealt with by way of informal and unrecorded advice or admonition. But there were other cases which were too serious to be dealt with in that way but not so serious as necessarily to call for prosecution.

3

In their submissions to the House, counsel did not attempt to trace the source of the caution as a procedure applied to young offenders, but it seems likely that it was devised by the police as a constructive and pragmatic response to the class of case I have just mentioned. From 1978 at the latest the procedure for cautioning young offenders was guided by a series of Home Office Circulars, and the House was referred to Circulars 14/1985, 59/1990 and 18/1994. These circulars need not be quoted. All made clear that there were three essential conditions to be met before a young offender could be cautioned: there had to be evidence judged to be sufficient to support a successful prosecution; the young offender had to admit the offence; and the parent or guardian of the young offender had to give informed consent to the giving of a caution. If these conditions were met, and a caution was given, the young offender would not be charged, summoned or prosecuted, and there would be no court hearing. But the caution could be cited in court proceedings if the young offender were to offend again.

4

As time passed, many cautions came to be given to young offenders in England and Wales (109, 700 in 1998). But the procedure, as applied to young offenders, was seen to be subject to two major weaknesses. First, a significant number of persistent young offenders were cautioned time after time. They inevitably came to appreciate that if they ignored one caution and offended again the likely consequence was that they would receive another caution, which they could again ignore with impunity, and so on. Thus the procedure did not achieve its intended object of stopping young offenders in their tracks before they had had time to become habituated to a life of crime. The second weakness was even greater: that the opportunity was not routinely taken on a young offender's first offending, leaving trivial offences aside, to intervene constructively so as to address any personal, family or other problems which a young offender might have and so obviate the risk of further offending by diverting the young offender away from crime into lawful and fruitful activity. The failure to exploit this opportunity in such a way was seen as gravely damaging to the welfare of the young offenders themselves, whose lives could be wrecked by persistent commission of crimes, but damaging also to their families and their communities. These weaknesses were fully and explicitly recognised in the Home Office consultation paper "Tackling Youth Crime" of September 1997 and its White Paper "No More Excuses - A New Approach to Tackling Youth Crime in England and Wales" (CM 3809) of November 1997, which heralded the 1998 Act.

5

The overall aim of the youth justice system was defined in section 37 of the 1998 Act:

"(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.

(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim."

Central to this appeal are sections 65 and 66 of the 1998 Act which, as amended by section 56 of the Criminal Justice and Court Services Act 2000 and section 165(1) of and para 198 of Schedule 9 to the Powers of Criminal Courts (Sentencing) Act 2000, provide:

"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) the 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 subsection (4) below, the 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 paragraph (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) explain 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 subsection (5)(a) of section 66 below:

    • (ii) in the case of a warning, the effect of subsections (1), (2), (4) and (5)(b) and (c) of that section, and any guidance issued under subsection (3) of that section.

(6) The Secretary of State shall publish, in such 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 subsection (4) above, whether an offence is so serious as to require a warning;

(aa) the places where reprimands and warnings may be given;

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

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

(7) In this section 'appropriate adult', in relation to a child or young person, means—

(8) No caution shall be given to a child or young person after the commencement of this section.

(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.

  • (a) his parent or guardian or, if he is in the care of a local authority or voluntary organisation, a person representing that authority or organisation;

  • (b) a social worker of a local authority social services department;

  • (c) if no person falling within paragraph (a) or (b) above is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police.

66

Effect of reprimands and warnings

(1) Where a...

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