England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Friday, 29th November 2002

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 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 requirements

A 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."

8. The 1998 Act extends this category to those who have been reprimanded or warned under the Act. The consequence, so far as children and young persons who have been so reprimanded or warned is that the notification requirements where the offence is of indecent assault, the offence with which we are concerned, lasts for 2½ years: Sex Offenders Act 1997 ss. 1(4), 4(2).

Home Office Guidance

9. The guidance which was in effect at the relevant time included the following when dealing with the administration of a reprimand or warning:

"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."

10. In the current guidance, published in November 2002, those provisions are essentially replicated. However, in dealing with the requirement that the young person must admit the offence, it provides:

"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....."

Generally

11. The practical effect of these provisions is that a reprimand or warning is not a conviction, but is entered on the Police National Computer (PNC) and is therefore available for those who are entitled to inspect the contents of that computer. In particular the information is therefore available to local authorities in the exercise of their powers in relation to education and care of children.

The Facts

The Claimant "U".

12. Two girls complained that they had been indecently assaulted by being inappropriately touched on the 16^th May 2001 at New Cross Gate train station. "U" was arrested on the 14^th November 2001 and was bailed to return to the police station for interview on the 24^th November 2001, when he was accompanied by a solicitor Mrs Gale. He was interviewed, and denied both allegations. He was bailed again to attend an identification parade. On the 25^th January 2002 "U", again accompanied by Mrs Gale, was identified by one of the two girls but not the other. After the identification, there was a conversation between Mrs Gale and PC Wratten in which, according to Mrs Gale, PC Wratten indicated that if "U" was minded to admit the matter then he would be re-interviewed and provided that he made admissions on tape, the matter would be dealt with by way of a final warning. She then saw "U" and told him what PC Wratten had said. She explained the effect of a final warning, but did not tell him of the requirements under the Sex Offenders Act 1997, of which she was herself at the time unaware. She told us that "U" was concerned about going to court because it would take time. She told him that although that was understandable, it was not a basis on which he should make such a major decision. She advised him that a final warning would be less detrimental to him than a conviction.
13. "U" was then interviewed on tape. He admitted that he had been on the platform at New Cross Gate at the time, and that he had put his hand up a girl's skirt and pinched her. He stated that he had not said this before because he was scared. He said that he understood that it was wrong. After the interview, PC Wratten said that he would grant bail to "U" to return to the police station, which Mrs Gale and "U" understood to be for the purposes of administering the final warning.
14. After that attendance, Mrs Gale wrote a note which reads:

"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."

15. PC Wratten told us that after the positive identification, he spoke to his sergeant and they decided that "U" should be re-interviewed. He spoke to Mrs Gale. He said that he told her the only disposal option was to charge "U" but that if an admission was made then there would be a further option, that of a warning. He denied having said to Mrs Gale that if "U" admitted the offence, he would be given a warning. His evidence was that this was a decision which could not be made by him, but had to be made by him in conjunction with his sergeant.
16. Having heard both Mrs Gale and PC Wratten give evidence, we are satisfied PC Wratten's recollection is not correct. Mrs Gale made it clear to us that she did not consider at the time that PC Wratten was doing anything wrong, indeed she considered that he was being helpful. Nonetheless she was satisfied that she had been given an assurance that if "U" admitted the offence, he would be given a final warning. Her evidence is fully born out by the contents of her note; and we accept it.
17. "U" eventually attended at Southwark Police Station for the purposes of the administration of the final warning. The matter had been transferred from PC Wratten to PC Sharpe, who was a police officer trained in the administration of such warnings. "U" arrived early with his foster mother. PC Sharpe was not aware that Mrs Gale was due to attend. He accordingly administered the warning. Mrs Gale unfortunately arrived late, as did "U's" natural mother who had also been informed of "U's" appointment. By then "U" and his foster mother had left. Mrs Gale and "U" mother met PC Sharpe who informed them of what had happened. "U's" mother became extremely upset. She said that she was not in favour of the final warning having been administered. PC Sharpe, according to Mrs Gale, then informed "U's" mother that "U" had been told to attend at Catford Police Station to sign on the Sex Offenders register. This upset "U's" mother further. PC Sharpe according to Mrs Gale, then said that he could always cancel the final warning and he would not complete the paper work until "U's" mother had had an opportunity to hear the admission which "U" had made. PC Sharpe told us that as he had not given any promise to either Mrs Gale or to "U's" mother but had been prepared to delay completing the paper work to give "U's" mother an opportunity to hear the admissions "U" had made on tape. He told us that he had waited for five days and then notified the PNC of the warning.
18. We have come to the conclusion that PC Sharpe did not give to either Mrs Gale or to "U's" mother any unequivocal promise which could give rise to a legitimate expectation of a sort which would justify this court in concluding that there had been any unfairness in the way in which "U" had been dealt with. The warning had been properly administered. PC Sharpe was seeking to cope as best he could, with what had undoubtedly become a fraught situation.
19. On the 14^th February 2002, Mrs Gale wrote to "U" asking him to contact her to discuss what had happened. "U" went to see her on the 28^th February 2002, he told her that he had only admitted the offence to receive a final warning and that he was in fact not guilty. He made it clear that he was not happy about going on the sex offenders register for a period of 2½ years. Despite being advised that if the final warning was set aside, the matter would probably go to court and he might be convicted, he said that he had decided that he wanted the final warning cancelled and that he wanted the matter to go to court. It was in those circumstances that the Judicial Review proceedings were commenced.

R's Claim

20. In November 2001, a number of girls made complaints of what they considered to be indecent assaults by "R". They were all girls who were at school with "R" and made their complaints originally to the school itself. As a result "R" was excluded from school. The complaints were reported to the police. Five girls were interviewed on video tape; and their complaints were sufficiently serious for the police to investigate. In January 2002, WPC Cummins, now Detective Constable, telephoned "R's" step-father asking him if he would be prepared to take "R" to the police station for interview. His evidence was that in the course of that telephone conversation, he asked what was likely to happen. He told us that at that time the family were under considerable stress, and "R" himself was in a very distraught state. The step-father's evidence was that WPC Cummins had told him that the parents did not want the matter to go any further and that because "R" had no criminal record or history of behaviour of this type, depending on admissions that he made, he would be likely to be given a "caution". Accordingly he was prepared to take "R" to the police station. "R" was interviewed on the 11^th January 2002. He told us that he was at no time told what the consequences of a "caution" might be. In particular he was not told that one of the consequences would be a requirement to register under the Sex Offenders Act 1997. He said that in the light of what he had been told by WPC Cummins, he did not consider it necessary to obtain legal advice. Had he been told of the consequence of a "caution" he would undoubtedly have done so.
21. During the course of the interview, "R" admitted to what he described as "horseplay", such as pinging bra straps, and touching the girls on the bottom playfully, which he did not consider to have any sexual connotation; nonetheless he admitted having touched girls on the breast. It is not suggested on behalf of "R" that the contents of the interview do not constitute admissions of indecent assault. It is clear that they do.
22. DC Cummins told us that she had certainly spoken to "R's" step-father to ask him if he was willing to accompany "R" to the police station. She said, however, that she had at no stage given any indication to "R's" step-father as to the possibility of a final warning until after the interview. She was adamant that at no time before then was any indication given to "R's" step-father of what the possible outcomes of any interview might be. Having heard both "R's" step-father and DC Cummins, we are satisfied that she did not at any stage before the interview give any indication that if "R" made admissions in interview, he would receive a "caution" or final warning. The contents of the interview are themselves instructive. It is plain that in large part, "R" was seeking to minimise what had happened. There is nothing to suggest that he was making any admissions in order to obtain some benefit for himself.
23. The final warning was given to "R" on the 29^th January 2002. His step-father told us that he was not then told of the consequence of a final warning namely that "R" would have to register under the Sex Offenders Act 1997. It was only when the Youth Offending Team came to his home later in February 2002 that that requirement was made plain. There is no doubt that he reacted strongly to this information. Despite the fact that it is suggested that he had been provided with information at the time of the final warning as to this requirement, we are satisfied from the evidence of those who were there at the time, that neither he nor his wife were aware of that information until the attendance of the Youth Offending Team. It was as a result of what he was then told that he saw solicitors and these proceedings were commenced.

The Issues

24. The second discrete issue which we have identified, which relates to "U" only, we have already disposed of in dealing with the facts. As we have said, there is no factual basis upon which "U" could claim that he had a legitimate expectation that his final warning would be reconsidered which would justify this court in intervening.
25. Before dealing with the first and third issues, it is worth putting them in their context. The underlying complaint in these proceedings is that neither claimant was made aware at any time during the procedure that the consequences of a final warning would be a requirement to register under the Sex Offenders Act 1997. Mrs Gale told us frankly that she had not known of this requirement. Had she known, she may well gave given advice to "U" in different terms. As far as "R" is concerned, his step-father told us that he would have sought legal advice, particularly as it was hoped that "R" would join the forces on leaving school and he would have wanted to discover whether the effect of registering under the Sex Offenders Act 1997 would create a problem. Leaving aside the legal niceties for the moment, both claimants say that it is simply unfair to obtain an admission of an offence and then proceed administratively to what is in effect a public declaration of guilt, with the particular consequences for those charged with sex offences, without at any stage spelling out those consequences. It is submitted that, at the very least, those consequences should have been spelt out before each of the claimants was interviewed. The main thrust, however of the claimants' submissions is that no final warning should have been given without the express informed consent of the claimants.
26. Turning then to the first issue, it is common ground that the police are not entitled to rely when determining whether or not to administer a reprimand or a final warning on an admission procured by way of an inducement so rendering the admission unreliable. This court so held in R - Commissioner of Police of the Metropolis ex parte Thompson [1997] 1WLR 1519. In that case a police inspector determined that a caution was the appropriate way of dealing with an offender and then, on interview, asked him whether he was willing to accept a caution, telling him that by accepting the caution he was admitting the offence. The court held that the cautioning procedure was predicated upon a reliable admission and genuine consent. The court considered that as a result there were, essentially, two vices in the procedure in fact adopted. First, the consent thereby obtained could not be said to have constituted a reliable admission. Second, the procedure had conflated two separate steps in a proper cautioning process. The admission of guilt was a pre-condition to a decision to administer a caution; and accordingly there should have been an admission before formal consideration was given to proceeding by way of caution.
27. In the case of "U", our conclusions of fact are such that both vices exist in his case. PC Wratten together with the sergeant, had decided that a final warning was an appropriate disposal before interviewing "U". But, more important, that had been conveyed to Mrs Gale in circumstances which were clearly capable of amounting to an inducement when that information was relayed to "U". In all the circumstances, we consider that the admission was not a reliable admission and could not, accordingly, properly found a decision to administer a final warning.
28. The position is different in the case of "R". We are satisfied that there was no inducement offered to "R" prior to or at the time of his making the relevant admissions. Accordingly, the police were entitled to rely on them. However, that still leaves the question of the effect of the fact that nothing was said about the consequences that might flow from those admissions. In R –v- Greater Manchester Police ex parte GR CO/4148/99, this question arose under the procedure for administering cautions. At the time that the applicant in that case admitted the offence, he was not made aware of the requirement to register under the Sex Offenders Act 1997 in the event of a caution. He and his father were, however, made aware of that requirement at the time that they were asked to consent to a caution. The court held that the police, in informing them of the requirement before asking for the consent to a caution had satisfied the requirement of the circular to obtain informed consent and that the caution was accordingly lawful. The court, however, said that it would have been preferable if that requirement had been made clear before the interview in which the admission was made. Laws LJ, in agreeing with the lead judgment of Rafferty J, said at paragraph 27:

"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 17^th June. I desire only to emphasise my respectful view that the decision of this court in ex parte Thompson [1997] 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."

29. Paragraph 4.14 of the new Home Office Guidance, which we have set out above in paragraph 11 is clearly intended to address this problem, which is more acute in the context of the Scheme in the light of the fact that informed consent is not a pre-condition of a reprimand or final warning. The new Guidance meets the first of the complaints of the claimants to which we referred in paragraph 25 above. Further, provided that the information is conveyed to the child or young person and those with him in a way which does not give any indication that an admission will result in a reprimand or final warning, the formula proposed could not amount to an inducement rendering any admission unreliable. There is no doubt, however, that the police must be scrupulously careful not to give any indication as to the likely form of disposal in the event of an admission, because if they do they run the risk that any admission upon which they subsequently rely will be open to challenge.
30. However, we do not consider that that failure to warn of the consequences of a reprimand or a final warning could render the decision to reprimand or administer a final warning unlawful as a matter of domestic law. The pre-conditions set out in the Act and the Guidance in effect at the time were met in "R's" case. And the Scheme, as defined by the Act and the guidance does not require the young offender's consent. The most important question of principle in this case is whether or not this consequence gives rise to a breach of any of the provisions of the European Convention on Human Rights, which is the third issue which we have to determine.
31. It is the claimants' contention that the Scheme even as presently devised does not conform to the requirements of Article 6, Article 8 and Article 14 of the Convention. These provide as follows:

"Article 6.

(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 ......

.....

Article 8

(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.

......

Article 14

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."

32. The first and main submission on behalf of the claimants is that the whole process involved in the Scheme is subject to the provisions of Article 6. It is submitted that for the purposes of that Article, the process constitutes the determination of a criminal charge within the meaning of that phrase in the Convention, requiring its determination by an independent and impartial tribunal. It is accepted that this does not give the claimants an absolute right to a trial. The police would be entitled at any time to discontinue proceedings against them. But, they submit, this is not what the Scheme involves. The Scheme results in what is in effect a public declaration of guilt by an administrative process and accordingly breaches both Article 6(1) and (2). It would be otherwise, it is accepted, if the claimants had given informed consent to disposal of the matter under the Scheme so that they could properly be said to have waived their Article 6 rights. As for Article 8, it is submitted that the requirements resulting from a reprimand or final warning are capable of affecting the claimants' private and family life, and, even if proportionate, are discriminatory, in that adults, who are subject to the system of cautions are given the opportunity to decide whether or not to accept a caution, whereas children and young persons are not. Further the Scheme discriminates between adults and children and young persons by denying to the latter the right to consent, so that they are discriminated against in relation to their Article 6 and Article 8 rights.
33. The Secretary of State, who appears because of the potential challenge to the legislation, accepts that Article 6 is engaged, but submits that it is engaged only until such time as the police are satisfied under s.65(1)(e) that it would not be in the public interest for the offender to be prosecuted. It is submitted that this brings to an end the criminal charge in the same way as discontinuance of proceedings. Further, it is submitted that there is no breach of Article 6(2) because there has been no conviction. It is accepted that Article 8 is also engaged, but it is submitted that in so far as there is interference with the individual's private or family life, that interference is proportionate in the public interest. As to Article 14, it is submitted that there is no question of discrimination. The system of cautions and the Scheme are different in kind. The Scheme is a structured approach to the problems presented specifically by children and young persons and cannot be equated to the system of cautions for adults.
34. We have no doubt that the Secretary of State is right to concede that Article 6 is engaged. The phrase " criminal charge" has an autonomous meaning under the convention, which is determined by reference to substance rather than form. In Deweer –v- Belgium [1980] 2 EHRR 439, the court defined it at paragraph 46 as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence."
35. Prima facie, therefore, the claimants were entitled to a fair trial of the allegations made against them attended by all the guarantees which are required by the Convention. There is, however, no doubt that that is not an absolute right. The police would have been entitled to decide not to prosecute and discontinue the proceeding: see Deweer at paragraph 49. But that is not what happened in the present case. Although the decision was taken not to prosecute, the claimants were required to subject themselves to a procedure which had the effect of publicly pronouncing their guilt of the offence of indecent assault. That was the consequences of the final warnings being recorded on the PNC, so that the fact of the final warnings became available not only in the event of future offending, but also to all those who have access to the PNC. It seems to us that these consequences prima facie constituted a breach of Article 6(1) and (2). The claimants were denied a right to a trial of the charges against them, and declared guilty by an administrative process.
36. That does not mean, however, that the procedures for cautions, reprimands and final warnings are necessarily in breach of Article 6. It would be unfortunate if they were. For they provide significant advantages both to the public, and to the individual offender. They constitute a sensible means of ensuring that resources are not wasted on cases where the paraphernalia of the court appearance is unnecessary given the character of the individual and the nature of the charge; and in the case of the Scheme, this has the further clear policy objective of seeking to prevent re-offending by children and young persons. From the offenders point of view, it results in the matter being dealt with expeditiously and does not result in a conviction, which undoubtedly has more serious consequences than a caution, reprimand or final warning.
37. The European Court of Human Rights recognised in Deweer, again at paragraph 49, that the domestic legal systems of the contracting states frequently provide mechanisms by which a person may waive his right to have his case dealt with by a court. However, the court stated that any such mechanism must be looked at with care so as to ensure that any waiver has not been the result of constraint . Accordingly the Scheme, and the system of cautions, can only conform with the European Convention on Human Rights if their procedures can properly be said to amount to such a waiver. In our view an effective waiver requires informed consent by the offender to the procedure being adopted, as in the case of cautions. This conclusion does not, however, mean that the Scheme itself is unlawful in the sense that the Act does not conform with the Convention. There is nothing in the Act which requires the police to proceed without the consent of the offender. The vice lies in the Guidance, and the practice adopted pursuant to that guidance. In the two cases with which we are concerned, there has clearly been no informed consent, so that there has been a breach of the claimants' Article 6 rights. Accordingly the decisions must be quashed. In these circumstances, we do not consider that it is necessary to come to any conclusion as to the arguments based upon Article 8 and Article 14.
38. However, the conclusion that we have reached that informed consent is required before the procedure can comply with Article 6 does not mean that in every case where a reprimand or final warning has been given, there has been a breach of the offender's convention rights. The procedure adopted by the police may well in any particular case have resulted in informed consent being given. For example, where an offender has made a free and reliable admission in the full knowledge of the consequences, it may well be that the court could on the facts conclude that informed consent has indeed been given. But to rely on implied consent in that way would not, in our view, be a sufficient safeguard of an offender's Convention rights, particularly bearing in mind the fact that the Scheme is targeted at children and young persons. The appropriate practice must be to ensure that before a reprimand or final warning is administered, the offender and his or her parent, carer or other appropriate adult should be told of the consequences, and asked whether or not they consent to that course being taken.