Regina v. Durham Constabulary and another (Appellants) ex parte R (FC) (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice) Regina v. Durham Constabulary (Appellants) and another ex parte R (FC) (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Durham Constabulary and another (Appellants) ex parte R (FC) (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)
Regina v. Durham Constabulary (Appellants) and another ex parte R (FC) (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)
 UKHL 21
LORD BINGHAM OF CORNHILL
Central to this appeal are sections 65 and 66 of the 1998 Act which, as amended by section 56 of the Criminal Justice and Court Services Act 2000 and section 165(1) of and para 198 of Schedule 9 to the Powers of Criminal Courts (Sentencing) Act 2000, provide:
The guidance made plain (para 75) that a reprimand or warning is not a conviction and does not constitute a criminal record, but repeated (para 74) that reprimands, warnings and any report on a person's failure to participate in a rehabilitation programme might be cited in court in the same circumstances as convictions. Reprimands and warnings were not covered by the Rehabilitation of Offenders Act 1974 but would be recorded by the police (para 75) and those reprimanded or warned for certain sex offences were required to register with the police under the Sex Offenders Act 1997 (para 77). Fingerprints would be taken (para 80). Reprimands and warnings are recorded on the Police National Computer (PNC) (paras 82-83).
This answer is plainly inconsistent with any right not to accept a warning if the offence is admitted. This question and answer were repeated in guidance issued in November 2002, after the events giving rise to this appeal, which also stated (in para 4.13):
That conclusion was not challenged before the House. Thus the lawfulness of the decision to warn depended on whether it complied with R's rights under the European Convention, and primarily on his rights under article 6. R contended that the decision did not comply. The main steps in the argument of Mr Davey QC on behalf of R were these:
(1) the process to which R was subjected involved the determination of a criminal charge within the autonomous meaning given by the Strasbourg jurisprudence to that expression in article 6 of the Convention, since it was triggered by suspicion that R had committed criminal acts and culminated in a finding that he had committed such acts;
(2) article 6 required such determination to be by an independent and impartial tribunal, which the police officer was plainly not, unless R gave his informed consent to being warned and so validly waived his right to a fair trial; but
(3) R did not know of his obligation to register under the 1997 Act before the warning was given and so did not give his informed consent to being warned and did not validly waive his fair trial right, and so
(4) the decision to quash did not comply with article 6.
This was also accepted in oral submissions, and neither appellant sought to resile from this position. I have some doubt on this point. The European Court has explored the Convention meaning of "criminal charge" in a number of cases. In Attorney General's Reference (No 2 of 2001)  UKHL 68,  2 AC 72, paras 26-28, 31, 43, 44, 45, 128, 129, 140 and 141, the House held, attempting to distil the essence of the European Court's reasoning, that a person became subject to a criminal charge at the earliest time when he was officially alerted to the likelihood of criminal proceedings against him. Sharing the opinion of the Court of Appeal in the same case ( EWCA Crim 1568,  1 WLR 1869, para 10), the House held that in this country a person would ordinarily become subject to a criminal charge from the time when he is formally charged or served with a summons. Arrest would not ordinarily mark the beginning of the period. In the present case, R was never charged and never served with a summons or any criminal process. He was never officially alerted to the likelihood of criminal proceedings against him, and since the parents of his victims preferred that there should be no court proceedings it would seem that a prosecution was always unlikely. The Divisional Court was not referred to the Court of Appeal's judgment, and the House had not given judgment when the Divisional Court decided the case; in any event, the appellants adhere to their submission. This being so, and having sounded a note of reservation, I shall, although with some reluctance, assume that there was a criminal charge against R at the beginning of the process.
In S v Miller 2001 SC 977 the Court of Session similarly held that criminal proceedings against the child (who had in that case been charged) came to an end when the procurator fiscal decided not to proceed with the charge: see the Lord President (Rodger), para 23; Lord Penrose, para 6; Lord Macfadyen, para 42. That decision was, in my respectful opinion, correct and consistent with the rationale of article 6.
The facts here are quite different. But the police officer, having satisfied himself that he had evidence that R had committed offences, having formed the opinion that the evidence was such that there would be a realistic prospect of R's conviction, having satisfied himself that R had admitted the offences, and having satisfied himself that R had not been convicted before, had only two decisions to make: whether it would be in the public interest for R to be prosecuted, and whether, if not, he should be reprimanded or warned, or no further action taken. It was no part of his duty to decide or determine or adjudicate whether R was guilty or not, and had Parliament envisaged the exercise of such a function it would not have entrusted it to a police officer.
Lord Penrose, in paras 45 and 50 of his judgment, and Lord Macfadyen in para 45 of his judgment, similarly concluded that the proceedings did not involve the determination of a criminal charge since they were not of a penal character but were designed to promote the welfare of the child.
This conclusion reflected the submission made on behalf of R, as recorded in para 33, that the scheme resulted in what was in effect a public declaration of guilt by an administrative process and so breached article 6(1), the right to a fair trial, and 6(2), the presumption of innocence. But the recording of the warning on the PNC is far from a public announcement or declaration of guilt. Access to it is limited to a relatively small number of authorised police, prison service and probation officers, and a small number of agencies with a need to have access for the proper performance of their public functions. Access to the Sex Offenders Register is similarly controlled and limited. In neither case do members of the public have access, and in both the availability of this information to authorised persons for the prevention of crime has been judged to serve the public interest.
The Convention, however, continues in article 40(3)(b) and (4):
(1) It was said that some of the measures imposed on R interfered with R's article 8(1) right to respect for his private life. I am willing to accept, without deciding, that they did or may have done. But, for reasons similar to those given by the Divisional Court in R (M) v Inner London Crown Court, above, and by the House in R (S) v Chief Constable of the South Yorkshire Police, above, I have no doubt that they were in accordance with the law, pursued a legitimate aim and were necessary in a democratic society in the interests of public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others.
(2) It was said that sections 65 and 66 discriminated unjustifiably against young offenders since the sections did not apply to adults, who could refuse to be cautioned and who, if cautioned and later convicted, could be conditionally discharged with no restriction on the convicting court's power to discharge conditionally. Counsel for R were wise to abandon this contention. Children and young persons are, ex hypothesi, immature, and so liable to be more vulnerable than adults and more amenable to education, training and formative influences. That is why statutes habitually distinguish between children and young persons on the one hand and adults on the other. It is unnecessary to explore the differences between the regime for reprimanding and warning young offenders and that for cautioning adult offenders, itself the subject of recent change, since the importance of diverting offenders from a life of crime at a very early stage is even greater and more urgent in the case of young than of adult offenders and can readily justify such differences as there are. Moreover, in the case of an adult, the question of who should give any consent does not arise.
LORD RODGER OF EARLSFERRY
BARONESS HALE OF RICHMOND
The notes explain that the first objective of juvenile justice is the promotion of the well-being of the juvenile, whether or not they are dealt with in family courts or the criminal justice system. The second objective, the principle of proportionality, aims to limit what might otherwise be the excessive interventions motivated by the welfare principle.
Two other articles are particularly relevant to the criminal justice system. Article 37 deals with cruel punishments and deprivation of liberty:
(a) no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."
Article 40 deals with the criminal justice system generally:
LORD BROWN OF EATON-UNDER-HEYWOOD