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Judgments - 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)




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)

[2005] UKHL 21


My Lords,

    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: [2002] EWHC 2486 (Admin); [2003] 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:

    "(1)  It shall be the principal aim of the youth justice system to prevent offending by children and young persons.

    (2)  In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim."

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:

    "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)  the 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 subsection (4) below, the 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 paragraph (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)  explain 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 subsection (5)(a) of section 66 below:

    (ii)  in the case of a warning, the effect of subsections (1), (2), (4) and (5)(b) and (c) of that section, and any guidance issued under subsection (3) of that section.

    (6)  The Secretary of State shall publish, in such 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 subsection (4) above, whether an offence is so serious as to require a warning;

    (aa)  the places where reprimands and warnings may be given;

    (b)  the category of constable by whom reprimands and warnings may be given; and

    (c)  the form which reprimands and warnings are to take and the manner in which they are to be given and recorded.

    (7)  In this section 'appropriate adult', in relation to a child or young person, means—

    (a)  his parent or guardian or, if he is in the care of a local authority or voluntary organisation, a person representing that authority or organisation;

    (b)  a social worker of a local authority social services department;

    (c)  if no person falling within paragraph (a) or (b) above is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police.

    (8)  No caution shall be given to a child or young person after the commencement of this section.

    (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 warnings

    (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)  A youth offending team—

    (a)  shall assess any person referred to them under subsection (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 considers appropriate, guidance as to—

    (a)  what should be included in a rehabilitation programme arranged for a person under subsection (2) above;

    (b)  the manner in which any failure by a person to participate in such a programme is to be recorded; and

    (c)  the persons to whom any such failure is to be notified.

    (4)  Where a person who has been warned under section 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 section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 in respect of the offence unless it is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify its doing so; and

    (b)  where it does so, shall 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 section 65 above;

    (b)  any warning of a person under that section; and

    (c)  any report on a failure by a person to participate in a rehabilitation programme arranged for him under subsection (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."

    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:

    "72.  In giving a reprimand the officer should specify the offence(s) which has led to it and make clear that:

    o  the reprimand is a serious matter

    o  any further offending behaviour will result in a warning or prosecution in all but the most exceptional circumstances

    o  a record of the reprimand will be kept by the police at least until the offender is 18

    o  the young person's reprimand may be cited in any future criminal proceedings

    o  if the offence is one covered by the Sex Offenders Act 1997, the young person is required to register with the police for inclusion on the sex offenders register (paragraph 77 below)

    73.  In giving a warning, the officer should specify the offence(s) which has led to it and make clear that:

    o  the warning is a serious matter

    o  any further offending behaviour will result in charges being brought, in all but the most exceptional circumstance

    o  a record of the warning will be kept by the police until the offender is 18 or the warning is more than two years old, whichever is later

    o  the warning may be cited in any future criminal proceedings

    o  if the young person is convicted of a further offence within two years of getting the warning, the option of conditional discharge will only be open to the courts in exceptional circumstances. The young person can in most cases expect a more serious sentence

    o  if the offence is one covered by the Sex Offenders Act 1997, the young person is required to register with the police for inclusion on the sex offenders register (paragraph 77 below)

    o  the warning will trigger referral to a local youth offending team

    o  the youth offending team will assess the young person and, unless they consider it inappropriate, prepare a rehabilitation (change) programme designed to tackle the reasons for the young person's offending behaviour, prevent any future offending and to help repair some of the harm done

    o  unreasonable non-compliance with the rehabilitation (change) programme would be recorded and could be cited in any future criminal proceedings

    o  referral to the youth offending team will be immediate and the young person can expect to be contacted by the team within five working days

    o  any questions about what will happen next should be put to the youth offending team (the officer shall also give contact details for the team)."

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:

    "Final Warnings are only for people who accept they committed the offence being investigated. If you don't accept that you committed the offence you should talk to the Police or the Youth Offending Team about seeking legal advice".

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):

    "Unlike adult cautions, the young person does not 'consent' to the 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".

    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 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."

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)

    "that [R] was, for these purposes, facing a 'criminal charge' once he had been formally notified by the police that allegations of criminal conduct against him were being investigated … ."

    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) [2003] UKHL 68, [2004] 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 ([2001] EWCA Crim 1568, [2001] 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:

    "67.   … It is moreover the view of the Commission that Article 6.1 of the Convention cannot be so construed as to bar the Prosecution from formally discontinuing criminal proceedings or from simply dropping charges. This is in fact a daily practice in member states. It is in cases where the Prosecution has the intention of proceeding to a trial on an indictment that they are under an obligation to do so within a reasonable time. This is the very purpose of Article 6.1.

    68.  The Commission is of the opinion that, insofar as the present case is concerned, the undertaking made by the Prosecution on 29 March 1979 not to try the applicant on the three remaining charges on the F. indictment must be considered as being tantamount to saying that these charges have been effectively dropped. Consequently, the applicant thereby also ceased to be affected by the charges on the said indictment. Thus, as from that date, there are in fact no longer any charges against the applicant which require a determination within the meaning of Article 6.1 of the Convention."

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.