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:-
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.
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:-
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.
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.
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.
37. MISS
McATASAEY: No, I have discussed that, in fact, with my learned friend, Mr
McGuinness, and he agrees that it should be
certiorari.
39. MR
BROATCH: My Lords, I have added costs and legal aid taxation. I take it your
Lordships find that satisfactory?
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" ----
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.
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?
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".
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.
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.
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.