QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FIELD
| THE QUEEN ON THE APPLICATION OF "U"
|- and -
|COMMISSIONER OF POLICE FOR THE METROPOLIS
|THE QUEEN ON THE APPLICATION OF "R"
|- and -
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)
Crown Copyright ©
Lord Justice Latham:
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.
"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)
"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 programme.(3) The Secretary of State shall publish, in such manner as he sees appropriate, guidance as to –(a) what should be included in a rehabilitation programme arranged for a person under ss (2) above;(b) the manner in which any failure by a person to participate in such a programme to be recorded; and(c) the persons to whom any such failure be notified.(4) Where a person who has been warned under s. 65 above is convicted of an offence committed within two years of the warning, the court by or before which he is so convicted –(a) shall not make an order under subsection (1)(b) (Conditional Discharge) of s. 1A of the 1973 Act in respect of the offence unless it is of the opinion that there are exceptional circumstances relating to the offence or offender which justify its doing so:(b) where it does so it will state in open court that it is of that opinion and why it is.(5) The following, namely –(a) any reprimand of a person under s. 65 above:(b) any warning of a person under that section; and(c) any report of a failure by a person to participate in a rehabilitation programme arranged for him under ss (2) above, may be cited in criminal proceedings in the same circumstances as a conviction of the person may be cited.(6) In this section "rehabilitation programme" means a programme the purpose of which is to rehabilitate participants and to prevent them from re-offending."
The Sex Offenders Act 1997
8. "1. Sex Offenders subject to notification requirementsA person becomes subject to the notification requirements of this Part, if after the commencement of this Part –.....(c) In England or Wales and Northern Ireland he is cautioned by a constable in respect of such an offence which, at the time the caution is given he has admitted."
Home Office Guidance
"73. In giving a warning, the officer should specify the offence(s) which has lead to it and make clear that:
If the offence is one covered by the Sex Offenders Act 1997, the young person is required to register with the police for inclusion in the Sex Offenders Register (para. 77 below)
77. The Sex offenders Act 1997 requires those convicted or cautioned for certain sex offences to notify the police of their details – this now includes offenders who are given a reprimand or warning for offences listed in that Act. The police officer must explain to a young offender and their appropriate adult that on receiving a reprimand or warning for such an offence they will be required to register with the police for inclusion on the sex offenders register. Where the YOT carries out a prior assessment of the young offender who has been reported for a sex offence this is an opportunity for them to explain about the register to the offender and his or her parents."
"4.12 A reprimand or warning can be given only if the young person makes a clear and reliable admission to all elements of the offence. This should include an admission of dishonesty and intent, where applicable,
4.13 Unlike adult cautions, the young person does not "consent" to a reprimand or final warning. Under the legislation, it is a matter for the police to decide the appropriate disposal in accordance with the statutory criteria.
4.14 Young people and their parents/carers or other appropriate adults should have access to the information and the options available including the final warning Scheme so they can make an informed decision before the question as to whether they admit the offence is put to them. For instance they should be aware that the police will decide the appropriate disposal under the Final Warning Scheme in the light of the statutory criteria. The status of a reprimand or final warning should also be explained, including:
The fact that a record will be kept for a minimum of five years or until the offender reaches 18 years of age whichever is the longer:
That it can be cited in criminal proceedings;
In some cases made available to employers;
If the offence is listed under the Sex Offenders Act 1997, that a reprimand or final warning will also be require them to register with the police for inclusion in the Sex Offenders Register....."
The Claimant "U".
"Attend PC Ratten (sic)
He has checked with the girls and their parents and the Sergeant and takes the view that the matter is suitable for a final warning.
I attended the client and reported the above. "U" indicated that he was willing to admit the offence on tape in consideration of getting a final warning.
He decided to do this
- to avoid lengthy proceedings
- to avoid the risk of a conviction thereby acquiring a criminal record."
"There is no escape from the application of the notification provisions contained in the Sexual Offences Act 1997 to caution juveniles. On the facts here the police should certainly have made that clear on the 17th June. I desire only to emphasise my respectful view that the decision of this court in ex parte Thompson  1WLR 1519 was not intended to discourage recourse to sensible and practical exchanges between police, suspect and the legal advisor in a case where a caution is in prospect in appropriate disposal of the case, but it is of the greatest importance that a caution should not be offered as an inducement for the making of a confession."
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law....
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law ......
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."