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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
1. In sections 65 and 66 of the Crime and Disorder Act 1998 Parliament legislated to replace the non-statutory procedure which then existed for the cautioning of children and young persons ("young offenders") believed to have committed crimes by a new procedure for reprimanding or warning such offenders. There were a number of similarities between the two procedures, but two differences significant in this appeal: whereas cautions could be given to adult and young offenders alike, reprimands and warnings may only be given to young offenders; and whereas a caution could be given to a young offender only if the young offender's parent or guardian consented to its being given, no such requirement is imposed, at any rate expressly, in relation to reprimands and warnings. In the present case the appellant was given a warning under the 1998 Act to which neither he nor his stepfather, acting as an appropriate adult, consented, and in these proceedings he challenged the lawfulness of the warning given to him on the ground that the procedure was, without consent, incompatible with article 6 of the European Convention on Human Rights. That challenge was upheld by the Queen's Bench Divisional Court (Latham LJ and Field J:  EWHC 2486 (Admin);  1 WLR 897), which accordingly quashed the decision to warn the appellant. The Chief Constable of the Durham Constabulary and the Secretary of State for the Home Department contend that that decision was wrong in law.
2. The age of criminal responsibility established in this country is, in comparison with that in most European countries, low. This has made it possible to prosecute young offenders who have not, or who have scarcely, entered their teens. But it has long been recognised as undesirable in many cases for young offenders to be drawn into the process of the criminal courts (including juvenile and youth courts) unless this is really necessary. So informal procedures grew up to deal with cases which were not so serious as to leave no realistic alternative to prosecution. There were always, of course, some cases which, although disclosing a breach of the criminal law, were so trivial as to be properly ignored or dealt with by way of informal and unrecorded advice or admonition. But there were other cases which were too serious to be dealt with in that way but not so serious as necessarily to call for prosecution.
3. In their submissions to the House, counsel did not attempt to trace the source of the caution as a procedure applied to young offenders, but it seems likely that it was devised by the police as a constructive and pragmatic response to the class of case I have just mentioned. From 1978 at the latest the procedure for cautioning young offenders was guided by a series of Home Office Circulars, and the House was referred to Circulars 14/1985, 59/1990 and 18/1994. These circulars need not be quoted. All made clear that there were three essential conditions to be met before a young offender could be cautioned: there had to be evidence judged to be sufficient to support a successful prosecution; the young offender had to admit the offence; and the parent or guardian of the young offender had to give informed consent to the giving of a caution. If these conditions were met, and a caution was given, the young offender would not be charged, summoned or prosecuted, and there would be no court hearing. But the caution could be cited in court proceedings if the young offender were to offend again.
4. As time passed, many cautions came to be given to young offenders in England and Wales (109,700 in 1998). But the procedure, as applied to young offenders, was seen to be subject to two major weaknesses. First, a significant number of persistent young offenders were cautioned time after time. They inevitably came to appreciate that if they ignored one caution and offended again the likely consequence was that they would receive another caution, which they could again ignore with impunity, and so on. Thus the procedure did not achieve its intended object of stopping young offenders in their tracks before they had had time to become habituated to a life of crime. The second weakness was even greater: that the opportunity was not routinely taken on a young offender's first offending, leaving trivial offences aside, to intervene constructively so as to address any personal, family or other problems which a young offender might have and so obviate the risk of further offending by diverting the young offender away from crime into lawful and fruitful activity. The failure to exploit this opportunity in such a way was seen as gravely damaging to the welfare of the young offenders themselves, whose lives could be wrecked by persistent commission of crimes, but damaging also to their families and their communities. These weaknesses were fully and explicitly recognised in the Home Office consultation paper "Tackling Youth Crime" of September 1997 and its White Paper "No More Excuses - A New Approach to Tackling Youth Crime in England and Wales" (CM 3809) of November 1997, which heralded the 1998 Act.
5. The overall aim of the youth justice system was defined in section 37 of the 1998 Act:
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:
6. In pursuance of his duty under section 65(6) of the Act, the Secretary of State in April 2000 (before the Act came generally into force in June) published a document entitled "Final Warning Scheme - Guidance for Police". This emphasised the preventative purpose of the Act in relation to young offenders and rehearsed the conditions which section 65(1) requires to be satisfied before a young offender may be reprimanded or warned. Guidance was given on the circumstances in which it may be appropriate to give a reprimand or warning, and it was recognised (para 62) that the behaviour of the young offender might be such as to show that a reprimand or warning would not be appropriate. Paras 72 and 73 of the guidance summarised the duty of the police officer in giving a reprimand and a warning respectively:
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).
7. The Divisional Court observed in para 38 of their judgment that "There is nothing in the Act which requires the police to proceed without the consent of the offender". This is true. But it is plain that the Act did not envisage or require that the consent of the young offender or an appropriate adult should be sought or required, as the Divisional Court acknowledged when they said (in para 31 of their judgment) that "the Scheme, as defined by the Act and the guidance, does not require the young offender's consent." It would be remarkable, given that informed consent had been explicitly required before a young offender could be cautioned, not to specify this condition in section 65(1) if it were intended to include it. The only reasonable inference is that Parliament intended to dispense with the need for such consent. This inference is strengthened by the absence of any indication in the 2000 guidance that the young offender's consent to a reprimand or warning is to be sought. In Annex G to the 2000 guidance, which sets out the text of a standard leaflet on "A Final Warning and How it might Affect You" the question is posed "Do I have to accept a Final Warning?" and the answer given is:
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):
8. Save in one respect, the warning procedure laid down in the 1998 Act and the 2000 guidance was followed in the case of the appellant R. He was aged 14 when, in November 2001, a number of girls at his school complained to the staff that he had indecently assaulted them. R was suspended, then permanently excluded, from the school, and the matter was reported to the police, who interviewed and took statements from the girls. On 11 January 2002 (R's 15th birthday) he and his stepfather attended at a police station in Durham by arrangement. They had (as the Divisional Court held in para 23 of their judgment) been given no indication what the outcome of the interview was likely to be. R was arrested on suspicion of indecently assaulting the girls, and was cautioned by an officer in the Child and Family Protection Unit of the Durham Constabulary. He and his stepfather were asked if they wanted a solicitor present, and they did not. In the course of the interview, as is accepted on his behalf, R admitted acts which amounted in law to indecent assault, although he described them as horseplay and said (which may of course have been true) that other boys had also been involved. At the end of this interview R was bailed and the file was referred to an officer in the Administrative Support Unit for the case to be assessed and a decision taken on future action. Having considered the Home Office guidance issued in 2000, this officer concluded that a final warning would be appropriate, and later that day he duly gave a warning to R in the presence of his stepfather. R was not asked if he consented to the warning, but he and his father were willing that it should be given. At this stage the stepfather was recorded as being supportive of police action, which had taught R a lesson and possibly prevented him getting into more serious trouble. In an unfortunate departure from para 73 of the guidance, neither R nor his stepfather had at this stage been warned that R was obliged to register (for a period of 2½ years) under the 1997 Act. This came to their attention on 6 February 2002, a week after the warning, when a police officer and a probation officer from the Youth Offending Team visited R at home and explained to R in the presence of his mother the consequences of the warning, including the obligation to register. R's mother told his stepfather, and they were both upset that the warning had this (for them, unexpected) consequence.
9. The Divisional Court, in para 31 of their judgment, did not consider
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.
10. Mr Crow for the Secretary of State and Mr Freeland QC for the Chief Constable attacked this argument at three points. First, they submitted, there was no criminal charge in existence once the relevant police officer had decided that it was not in the public interest to prosecute, since that brought any possibility of criminal proceedings to an end, and the officer's decision to warn could not be thwarted by R's withholding of consent since his consent was not required. Secondly, there was no determination, because there was nothing in the nature of an adjudication whether R had committed a crime. Even if, thirdly, there was a determination, it was not a determination of a criminal charge since it was a decision with no possible punitive consequence for R.
11. Before the Divisional Court the Secretary of State accepted (para 34 of the judgment) that article 6 was engaged on the facts, but submitted that it was engaged only until such time as the police were satisfied under section 65(1)(e) of the 1998 Act that it would not be in the public interest for R to be prosecuted. The court had no doubt (para 35) that the Secretary of State was right to concede that article 6 was engaged. In his written case to the House it was again accepted (para 12)
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.
12. Making that assumption, I nonetheless think it inescapable that the criminal charge ceased to exist when a firm decision was made not to prosecute. For good and understandable reasons, the protection given to criminal defendants by article 6 covers not only the trial itself but extends back to the preparatory and preliminary processes preceding trial and forwards to sentence and appeal. But the primary focus of the right is the trial itself, because that is the stage at which guilt is decided with the possibility of condemnation and punishment. I find it hard to see how a criminal charge can be held to endure once a decision has been made that rules out the possibility of any trial, or condemnation, or punishment. This was, I think, the essential reasoning of the Commission in X v United Kingdom (1979) 17 DR 122, when, in ruling the application to be inadmissible, it said:
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.