England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE SCHIEMANN: This is the judgment of the court. Before us is an application for Judicial Review of a decision to administer a formal caution to the Applicant and also of a decision not to withdraw that caution. It raises an important point of widespread application. A Caution will not be adopted as a method of disposal unless the person accused of the crime admits his guilt. The point raised in the present case is whether the provisions of our law which render inadmissible in criminal proceedings confessions obtained as a result of an inducement are applicable by analogy to the cautioning procedure. In particular whether the court should quash a Caution administered after a confession of guilt which follows an inducement to make that confession - namely a bargain in effect held out by the police :”If you confess your guilt and are willing to be cautioned then I will see to it that you are not charged and prosecuted but cautioned instead.”?

2. There is no statutory basis for the formal caution. As is well known, the phrase "formal caution" in this context is used to describe a discretionary procedure adopted by the Police which was developed with special reference to juvenile offenders but is now used quite extensively for adults. It is a method of disposal of criminal cases outside court which is more severe in its possible consequences than a warning but usually less severe in its outcome that a successful prosecution.

3. A Formal Caution is not something to be regarded lightly. Records are kept of the administering of cautions. The Home Secretary has power to direct for what period of time such records should be retained, but has not yet done so. We understand, however, that in practice a record of caution will be kept for a minimum of 3 years. Such a caution, while carrying no immediately disagreeable consequence for the recipient, has potential adverse consequences for him should he be accused of offending on a future occasion. He is more likely then to be prosecuted for that offence and he will not be able to claim a good character before the trial court. If convicted, the existence of a prior formal caution may affect his sentence. Formal cautions are usually cited after any conviction of a juvenile. In practice they are rarely cited in the cases of adult offenders but may be referred to if they are relevant to the crime under consideration.

4. So far as the jurisdiction of this court is concerned, it is common ground that Judicial Review is available as a remedy in respect of a caution; that this Court will not invariably interfere, even in the case of a clear breach of the Guidelines relating to the administration of cautions, as the availability of a remedy is a matter for the discretion of the Court; that police officers responsible for applying the Home Office Circular which sets out the Guidelines "must enjoy a wide margin of appreciation as to the nature of the case and whether the preconditions 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 by a clear breach of the guidelines. That much is clear from a decision of this Court, Commissioner of Police for the Metropolis ex parte "P" [1995] Volume 160 Justice of the Peace Reports 367.

5. The facts of the present case, while of no intrinsic interest save to the parties, are no doubt typical of many other situations in which Formal Cautions are administered. The applicant came to police attention in this way. He had been stopped by the Police when driving. They thought he was drunk. He then allegedly lost his temper and shouted abuse at the Police. There were several people about in the area and the Police arrested him for driving whilst unfit through drink or drugs and using abusive and insulting language. This was at 11.35pm. In due course he was breathalysed but it seems that the alcohol readings provided on the machine by the Applicant's specimen of breath were negative. So that matter was not pursued. What remained was the charge under Section 5 of the Public Order Act 1986. That Section provides:-

6. Section 6 sub-section (4) provides:-

7. The police took the view that the words used by the applicant were manifestly abusive or insulting, that the applicant must have intended them to be so and that they were used within the hearing of persons likely to be caused harassment or distress thereby.

8. It should be noted that the Act provides in s.5(3):-

9. The police then had to decide how they wished to proceed. The options, broadly, were letting the matter drop, giving the accused a warning, giving the accused a Formal Caution, or taking him to court. A Formal Caution was decided upon. Before I set out what apparently happened it is useful to set out the background to the Formal Cautioning Procedure.

10. There are Home Office guidelines as to the circumstances in which a caution should be administered. These are set out in Home Office Circular 18/1994 on "The Cautioning of Offenders" which has appended to it the "National Standards for Cautioning (Revised)". So far as presently relevant, this document reads as follows:

11. The Metropolitan Police have a Case Disposal Manual which describes the decision-making process which leads to the prosecution of offenders or their diversion from the criminal justice system. The Manual points out that "the first thing to be considered is whether or not there is sufficient evidence to connect the alleged offender with the offence." Then once the evidential sufficiency test has been met, the public interest criterion can be considered. We need not consider that aspect of the matter. The Manual has a Section headed "Case Disposal Criteria". It sets out a number of disposal options each of which is allotted a number.

12. There is then a sheet headed "Specific Crime Gravity Factors". This sets out, so far as presently relevant, in its left hand column a number of public order offences. Whereas a Section 1 offence is given an original disposal option numbered 5, a Section 5 offence is given an original disposal option numbered 3. Thus we see that it is in the pivotal category. And we are specifically drawn to consider the aggravating or mitigating factors to determine whether the disposal moves up or down. The sheet sets out various aggravating factors none of which applied in the present case and various mitigating factors which apparently did apply in the present case; namely that this was a single offender and that the remarks were made in the heat of the moment. The Manual provides on page 9 as follows:-

13. There is attached to the Manual a pro-forma case disposal decision sheet on which are shown the original disposal option number and the final disposal option number and one sees from page 12 of the Manual that

14. There is attached to the Manual a pro-forma record of formal caution which was used in this case. This sets out the offender's details, the details of the offences. Then we see:-

15. Below that appears:-

16. In the present case that was Inspector Hobday.

17. No other contemporaneous record of the cautioning process was kept. In particular it was not tape recorded.

18. The Applicant was charged with another offence sometime later and evidence was then given as to what had happened when he had been cautioned on the earlier occasion. Mr Hobday made it clear that he could not specifically remember that earlier case. However, he gave evidence of his normal practice. The substance of what he said was as follows:-

19. Mr Broatch, who appears for the applicant, submits that Inspector Hobday did not comply with the Guidelines and therefore the Caution ought to be quashed. He faintly submitted that there was not sufficient evidence of the offender’s guilt to give a realistic prospect of conviction. Having regard to the words used and the circumstances of their use the court made it clear that this contention was unarguable and he did not press the point. We say no more about it.

20. The crux of his submissions was that the Guidelines made it clear that the cautioning process should not be used unless the accused had made an admission of the offence and given his informed consent. Mr Thompson is of full age and capacity and was not impaired by drink or drugs. He admits having signed the caution form. However, he says in an affidavit that he did not appreciate that he was admitting the offence. He says he was afraid of the police and only too happy to get out of the police station. Mr Hobday says in his affidavit that he was quite satisfied that by the time the applicant had signed the Record of Formal Caution “he was aware and had had every opportunity to be aware, that he had admitted the offence”. Mr Broatch I think recognised that, in the present proceedings, he could not satisfy the court that the applicant had not in fact admitted the offence. We are not persuaded that the applicant had not admitted the offence by the time that he signed the form although we accept that he had not admitted the offence when he was brought before Inspector Hobday.

21. The essence of Mr Broatch’s submission was that the person to whom the admission was made had held out an inducement to make the confession, namely, the prospect of not being taken to court. This we think does represent the reality of the situation whatever the precise terms which were used. Mr McGuinness, who appears for the respondent, accepts as much.

22. The result of that is that evidence of this confession would be excluded in any criminal proceedings.

23. There is, we are told, no authority as to the application of this rationale to the formal cautioning procedure. One is faced with a stark choice between what one may dub the court approach and the informal approach.

24. In favour of the court approach it can be said that the cautioning procedure is predicated upon a reliable admission and genuine consent. The admission in the present case, and no doubt in many others, would in all probability not have been made had it not been preceded by an offer to forego the possibility of a successful prosecution. Moreover, there is always a possibility that the accused is not prepared to be cautioned. In that eventuality, a confession obtained in circumstances which render it inadmissible in criminal proceedings is useless. Where, at the time that the police are considering a formal caution as a disposal option, no admission exists which would be admissible in criminal proceedings it is fairer and simpler for a formal interview to take place. Then any admission is more likely to be reliable and can be used as a basis for a warning, the formal cautioning procedure or a criminal trial.

25. In favour of the informal approach it can be said that the practical result of requiring a confession which would be admissible in court proceedings would be that the taped interview procedures would need to be followed in very many cases and this would complicate and make more expensive in money and time those cases where in the end an confession is obtained. Further, there will be many cases where, absent the inducement of dropping the prosecution, no confession will be made although the accused is manifestly guilty. In effect, the result of a ruling in the applicant’s favour will be a significant drop in the use of the cautioning procedure and either a significant increase in successful prosecutions resulting in minimal penalties or a large number of petty criminals wholly escaping even the shadow of a penalty. The cautioning procedures were developed initially for juveniles and are still largely used with the young and one should not over formalise a situation in which one is dealing with relatively minor crime unlikely to result in serious punishment.

26. We are conscious of the fact that S.48 of the Criminal Justice and Public Order Act 1994 gives statutory sanction to the practice of giving discounts for early pleas in sentencing which has existed for a very long time. It might seem at first that there would be an inconsistency between

27. However, that inconsistency would be more apparent than real. In the one case the court is merely giving effect to what was done in the face of the court, namely the plea of guilty. In the other case it would be letting in hearsay evidence regarded as having been obtained in circumstances rendering it unreliable.

28. After initially preferring the informal approach, we have after reflection come down in favour of the court approach. Mr McGuinness accepted that if an Inspector had tortured a confession out of the accused or had offered him money then certiorari would lie. Once one accepts an inducement can vitiate an admission then it seems to us indefensible for the court to distinguish between different types of inducement. If a distinction is to be made - and there are arguments either way - that distinction ought to be made by the legislature.

29. It is clear from the Guidelines issued by the Home Office in particular Note 2(D) that consent to the caution should not be sought until it has been decided that cautioning is the correct course. It is clear from paragraph 2 of those Guidelines that cautioning is only the correct course where the offender admits the offence. Taken as a whole the Guidelines show that the decision to try and proceed by way of caution should be made before any question of seeking the consent of the offender arises. Since an admission of guilt is a pre-condition to a decision to administer a caution, there should in practice be such an admission before formal consideration is given to proceeding by way of caution. In our judgment it is not proper to seek an admission of guilt as part of the cautioning process itself although it is perfectly proper to acknowledge on the record of caution that the offence has been admitted.

30. We therefore propose in substance to grant this application. We will hear counsel further as to the most appropriate form of relief.

31. LORD JUSTICE SCHIEMANN: For the reasons set out in the judgment which has been handed down, we propose to grant this application.

32. We have not applied our minds to the form of relief which would be appropriate.

33. MR BROATCH: My Lords, I have taken the liberty of preparing a draft in the light of your Lordship's comment at the end of the judgment. ( Same handed ) My learned friend, Miss McAtasaey, appears instead of Mr McGuinness. In my submission, this should be a certiorari Order. I have simply taken the first part of the Order from an ordinary precedent, adapting the words.

34. LORD JUSTICE SCHIEMANN: My recollection is that you asked for rather more in your application.

35. MR BROATCH: Yes. If I succeeded in getting the cautions quashed, then I need not bother. Your Lordship can see what I have suggested.

36. LORD JUSTICE SCHIEMANN: Miss McAtasaey, have you anything to say about the form of relief?

37. MISS McATASAEY: No, I have discussed that, in fact, with my learned friend, Mr McGuinness, and he agrees that it should be certiorari.

38. LORD JUSTICE SCHIEMANN: Very well, we make an Order in that form.

39. MR BROATCH: My Lords, I have added costs and legal aid taxation. I take it your Lordships find that satisfactory?

40. LORD JUSTICE SCHIEMANN: If there is no objection to that, you may have those costs.

41. MR BROATCH: My Lords, I am obliged.

42. MISS McATASAEY: My Lords, I have discussed with my learned friend, Mr John McGuinness, (who regrets that he cannot be here this morning) that where an appeal lies -- and I know that it is his view that this is a civil matter, because it is certainly the intention of those who are instructing me to appeal, this being a matter of general importance, as I think your Lordships recognised. My Lords, I know, having spoken to the Crown Office and also to my learned friend, that my learned friend and the Crown Office, who has a solicitor, considers that this is a criminal cause or matter.

43. LORD JUSTICE SCHIEMANN: This is why this is in front of two judges, otherwise you would be in front of one judge. Whether the Crown Court is right in so doing, I have not applied my mind to it. You would need to know what the answer is, would you not?

44. MISS McATASAEY: My Lords, can I say why it is that the Respondent considers that this is a civil matter? It is because, of course, looking at the definition of "criminal cause or matter" ----

45. LORD JUSTICE SCHIEMANN: Can you take me to it?

46. MISS McATASAEY: My Lords, in the "White Book" it is at page 935, paragraph 59/1/24.

47. LORD JUSTICE SCHIEMANN: Certainly, it says:

48. Then it says "Meaning...".

49. MISS McATASAEY: If your Lordships were to go eight lines down, there is a sentence which starts:

50. The way the Respondent looks at the matter is that, of course, that was the very thing that the Applicant avoided by the caution. There was obviously no trial and no possibility of punishment in that sense.

51. LORD JUSTICE SCHIEMANN: Does that case say that the matter will be a criminal cause or matter only if it arises in any proceedings. It clearly will be if it arises, but what I am not clear about, from the short citation in the "White Book", is whether, as it were, it is an inclusive definition or merely something which gives one instance in those comments.

52. MR JUSTICE BUTTERFIELD: If one looks at the notes further down, it says:

53. Analogously, a caution could be regarded, although it is not of course a conviction, as being akin to a conviction.

54. MISS McATASAEY: I appreciate that argument as well, my Lord, because a problem with this particular case was that it was being sought to be cited against him ----

55. MISS McATASAEY: ---- as if it were a conviction. However, having said that, the caution itself was designed to avoid the criminal process.

56. MISS McATASAEY: My Lord, it is. In my submission, it is an interesting argument. It is a borderline situation and it does not appear, having looked at the ----

57. LORD JUSTICE SCHIEMANN: The problem is do we actually have any jurisdiction to decide that matter? Whether the Court of Appeal has jurisdiction that is, strictly speaking, a matter for the Court of Appeal and not the Divisional Court. That said, if the Court of Appeal says that it does not have jurisdiction, you will be high and dry, unless we certify. Would you regard it as unduly lazy if we certified and left you to sort the problem out after looking carefully at the problem?

58. MISS McATASAEY: No, I would not. I will pass it back to my learned friend.

59. LORD JUSTICE SCHIEMANN: If you invite to us to certify, to which, in principle, subject to anything Mr Broatch may say, I would not be opposed, have you got a draft formulation?

60. MISS McATASAEY: No, but can I say that my learned friend has one. I have not, because when I discussed it with my learned friend, Mr McGuinness, he was convinced that this was a civil matter and I should be asking for leave to appeal to the Court of Appeal.

61. LORD JUSTICE SCHIEMANN: My instinct is that he is absolutely right, but I do not know if we can actually rule to that effect.

62. MISS McATASAEY: My Lords, certainly I would want him to have input as to the question to be certified. I wonder if we dealt with it in principle, whether it could be mentioned in your Lordship's list once my learned friend, Mr McGuinness, has considered the point, so far as the question and also the other matter?

63. LORD JUSTICE SCHIEMANN: It may never arise. That said, this case is not entirely, I recollected, academic because this gentleman is awaiting trial for something and this may or may not be used in the course of trial; is that right?

64. MR BROATCH: Yes. He was acquitted in the main trial. He has since been charged with something else. I think that has been disposed of by way of a bind over in the meantime, and, so there is nothing outstanding.

65. LORD JUSTICE SCHIEMANN: In the event, at the moment, until such time this court's judgment is overruled, you are perfectly happy? There is no urgency from your point of view?

66. MR BROATCH: There is no urgency from my point of view. I have considered the criminal/civil question. In fact, I have considered it at a much earlier stage because the first listing came out indicating that it was in front of a single judge. I had drafted a letter for the instructing solicitors, which I think went to the Crown Office, saying, in effect, that counsel wonders whether this is a criminal cause or matter and whether it should be in front of a two-judge court. That seems to have formed proof in the case of the Crown Office.

67. My Lords, I say it is a fairly simple question. It is to do with the administration of the criminal law, although it is a form of administration which may result in a non-forensic disposal of someone. However, the principle of criminal law apply and had there not been a caution these events might have given rise to a prosecution. If there were to be down to the road either a decision to prosecute and the caution were to stand, then it may distance the caution and tip the balance in favour of forensic application of criminal law. If there were to be a trial, he may be cross-examined as to his caution and may not present himself, as we saw in the Snaresbrook trial, as man of good character. Therefore, I say, for all those reasons, it is to do with the mechanics of the criminal law.

68. LORD JUSTICE SCHIEMANN: The Respondent is in the nasty position that if he goes to the Court of Appeal, he may be told that, "Oh, no! It is a criminal matter", and if he goes to the House of Lords he may be told, "Oh, no! It is a civil matter".

69. MR BROATCH: I suspect in their Lordships' House the jurisdiction point would not be taken.

70. MR BROATCH: If your Lordship had certified.

71. MR JUSTICE BUTTERFIELD: It might not be taken at the Bar, Mr Broatch, but it might be taken elsewhere by their Lordships.

72. MR BROATCH: I see the point that your Lordship makes. Equally, if your Lordship had granted a certificate, that would have been on a premise that a certificate was needed. I think your Lordship said that you might consider it de bene esse .

73. LORD JUSTICE SCHIEMANN: Many times the House of Lords has held that the premise on which the lower courts had acted was erroneous. It seems that my suggestion is probably the most sensible one in the circumstances.

74. MR BROATCH: My Lords, my learned friend would need a certificate and either leave or a refusal of leave before she can go further. Obviously I am opposing the application, but anticipating that your Lordship might.

75. LORD JUSTICE SCHIEMANN: We would be minded to grant the certificate but refuse leave.

76. MR BROATCH: Anticipating that your Lordships might be taken with the argument to provide a certificate, I have drafted a question myself.

77. LORD JUSTICE SCHIEMANN: Since you are not the Appellant, it does not seem entirely fair to Mr McGuinness being bound by your formulation of the point.

78. MR BROATCH: I had anticipated that we might exchange questions of formulation. Of course that has not happened.

79. LORD JUSTICE SCHIEMANN: Perhaps you will discuss it with Mr McGuinness. Miss McAtasaey, you can tell Mr McGuinness that, in broad terms, we are minded to certify and minded to refuse leave. If he and Mr Broatch can agree or submit two versions of the potential point for their Lordships' House, we will chose between them, preferably without another hearing because we are not constituted any longer.

80. MISS McATASAEY: My Lords, I am very grateful. Can I ask, because those instructing me are concerned, whether the Order "that the Respondent shall expunge, delete and remove the record of the said caution..." is automatically suspended pending appeal, or do I have to ask for an Order?

81. LORD JUSTICE SCHIEMANN: No, it is not automatically suspended during appeal. So far as this person is concerned, I would not be minded to stay it. It is not a matter of great importance, even if we were wrong, so far as this person is concerned, although I can see that it is a case of general importance for the police generally.

82. MISS McATASAEY: My Lords, so be it.

83. LORD JUSTICE SCHIEMANN: We will give you 28 days within which to produce a draft point of law.

84. May I suggest to Mr McGuinness that, if he gets in touch with the Crown Office, the people in charge, who has a vast amount of experience of this particular thing, may well have some unreported cases which are around.