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)

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    13.  While there is ample Strasbourg authority on the meaning of "criminal charge", there is little on the meaning of "determination", the expression used in relation to civil rights and obligations as well as criminal charges. Certain of the authorities cited gave rather limited assistance. The central concept in either case is, however, of an issue, whether between prosecution and defendant or between civil parties, which culminates or may culminate in an adjudication by the court or tribunal. The issue may of course be resolved on the defendant pleading guilty or submitting to judgment, but in either event there will be an adjudication and an entry of judgment, the conviction of the defendant on his own confession or judgment for the claimant, and certain consequences are likely to follow. The appellants gain some support from the judgment of the European Court in Fayed v United Kingdom (1994) 18 EHRR 393. In that case the Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb of article 6(1) to complain that they had been denied effective access to the courts to challenge the determination made against them. The application failed because, as the Court ruled in para 61 of its judgment:

    " … The Inspectors did not adjudicate, either in form or in substance. They themselves said in their report that their findings would not be dispositive of anything. They did not make a legal determination as to criminal or civil liability concerning the Fayed brothers, and in particular concerning the latter's civil right to honour and reputation.

    … the object of the proceedings before the Inspectors was not to resolve any dispute (contestation) …

    In short, it cannot be said that the Inspectors' inquiry 'determined' the applicants' civil right to a good reputation, for the purposes of Article 6(1), or that its result was directly decisive for that right."

    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.

    14.  It was contended on behalf of R that the giving and recording of a warning in effect established R's guilt of what was alleged against him, and it is of course true that a person who admits commission of an offence without any inducement or pressure to do so would ordinarily be assumed to have committed it. There was here no suggestion of any inducement or pressure, and had there been such it would have invalidated the admission: R v Commissioner of Police of the Metropolis, Ex p Thompson [1997] 1 WLR 1519. But the determination of a criminal charge, to be properly so regarded, must expose the subject of the charge to the possibility of punishment, whether in the event punishment is imposed or not. A process which can only culminate in measures of a preventative, curative, rehabilitative or welfare- promoting kind will not ordinarily be the determination of a criminal charge. In Ibbotson v United Kingdom (1998) 27 EHRR CD 332 the Commission held that the obligation to register under the 1997 Act was not a penalty within the meaning of article 7 of the Convention since the requirement was preventative, not punitive, and the Court reached a similar decision in Adamson v United Kingdom (1999) 28 EHRR CD 209. In Porter v United Kingdom (2003) 37 EHRR CD 8 the Court held, in agreement with the House of Lords (Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 85) that a large surcharge imposed on the applicant was compensatory, not punitive, and that the criminal limb of article 6 was not engaged. A measure of special police supervision imposed on the applicant in Raimondo v Italy (1994) 18 EHRR 237, while criminal proceedings were prosecuted against him, was held by the Court in para 43 of its judgment to be "not comparable to a criminal sanction because it is designed to prevent the commission of offences." It was held to follow that the proceedings concerning the supervision did not involve the determination of a criminal charge. Our domestic courts have followed a similar approach in relation to sex offender orders (B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340), anti-social behaviour orders (R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, paras 28-34, 72, 77, 109-111, 116, 117), disqualification orders (R v Field [2002] EWCA Crim 2913, [2003] 1 WLR 882, para 58), and parenting orders (R (M) v Inner London Crown Court [2003] EWHC 301 Admin, [2003] 1 FLR 994, para 35). In R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196, paras 40, 66, 78, 80, 86-88, the retention of fingerprints was held, if an interference with the subject's right under article 8(1) of the Convention, to be one clearly justified by the strong public interest in preventing crime.

    15.  The appellants' argument is further strengthened, in my opinion, by the decision in S v Miller 2001 SC 977 to which I have already referred. Following an assault on a victim (L) the child (S), aged 15, was detained, arrested and charged with assaulting L. The procurator fiscal quickly decided not to prosecute, and the police, as they were bound to do, reported the matter to the relevant authority reporter. The reporter was obliged to refer the case to a children's hearing unless he considered that compulsory measures of supervision were not required in relation to S. He was not of that opinion, and was accordingly obliged to refer the case to a children's hearing for determination of the merits if satisfied that compulsory measures of supervision were necessary and also (relevantly to the case of S) that he had committed an offence. The reporter was satisfied on both grounds, the second relating to the alleged assault of which particulars were in due course given. It was open to S to contend that the second condition was not met (ie he had not committed an assault), and he did so. That meant that the question whether S had committed an assault had to be referred to a sheriff for determination. Such a proceeding before the sheriff had certain of the characteristic features of a criminal proceeding, in that the criminal burden of proof applied and a finding adverse to the child would be a conviction to which the Rehabilitation of Offenders Act 1974 applied. It was accepted by S in the Court of Session that the children's hearing would determine S's civil rights and obligations within the meaning of article 6; the question was whether, as S contended, it would determine a criminal charge against him within the meaning of the article. It was plain that the reporter was seeking to show that S had committed a criminal assault, but also plain that the proceedings were categorised as civil and not criminal in Scots domestic law. In ruling against S on this issue my noble and learned friend Lord Rodger of Earlsferry, then Lord President, said in para 20 of his judgment:

    "[20]  In itself the character which the proceedings have in our domestic law is not, of course, conclusive of the character which they should have under the Convention. Nevertheless, if one asks why, ultimately, Parliament has provided for civil rather than criminal proceedings, then the answer must be that, even though they may involve establishing that the child has committed an offence, there is no possibility of the child being punished, having a penalty imposed. On the contrary, in a sec 52(2)(i) case, as in any other, the aim of all the measures in chap 3 of the 1995 Act is, as its title proclaims, the 'Protection and Supervision of Children'. More particularly, sec 52 deals with 'Children requiring compulsory measures of supervision' and so the aim of all such proceedings is for the hearing to determine whether the child concerned requires such compulsory supervision in his own interests, the decision always being taken with the child's welfare as the paramount consideration (sec 16(1)). Similarly, the reporter can refer a case to a hearing under sec 65(1) for determination on the merits only if he is satisfied, not merely that the child has committed an offence, but also that compulsory measures of supervision are necessary. In my view such proceedings which are instituted to promote the child's welfare and have no penal element at all do not involve 'the determination … of any criminal charge against' the child in terms of art 6."

    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.

    16.  In his written case, but not in oral argument, R relied on the decision of the European Court in the relatively early case of Adolf v Austria (1982) 4 EHRR 313. In that case an elderly lady complained to the public prosecutor that the applicant had assaulted her. The police investigated and reported back to the prosecutor who, on receiving the report, referred the matter to the Innsbruck District Court. The court registered the case under the heading "punishable act" and the entry made reference to section 83 of the Penal Code which deals, among other things, with the infliction of bodily harm. In a decision relating to the costs of a medical opinion the court referred to "the criminal proceedings" against the applicant, who was described as "the accused". Later, at the request of the prosecutor, the court terminated the proceedings under a provision of the Penal Code which provided for such termination if the offence carried no more than a moderate penalty, the guilt of the subject was slight, the act had no more than trifling consequences and punishment was not necessary to deter the subject from committing criminal offences. In giving the reasons for its decision the court recounted the facts of the assault, with no indication that these were the subject of challenge by the applicant (as they were) and ruled that the injury caused was insignificant, that "the fault … of the accused may be described as insignificant" and that the character of the applicant "gives cause to expect that he will conduct himself properly in future". On these facts the Court concluded that there was a criminal charge, although it was unnecessary (para 31 of the judgment) to determine the precise moment at which the applicant was charged, and that article 6 was engaged. But there was held to be no breach of the article, since the applicant had been in effect exonerated by the Supreme Court. In contrast with the present case, however, there were formal proceedings against the applicant in a criminal court; he was "the accused"; the proceedings could have culminated in his being punished, although in the event they did not; and there was a reasoned judicial decision which, on its face, found that he had committed an assault, although his fault was said to be minor. I do not think that Adolf is legally analogous to the present case.

    17.  The Divisional Court did not refer in their judgment to the cases of Ibbotson, Adamson, Porter v Magill, Raimondo, B, McCann and S v Miller, most of which, I am told, were cited to them. Thus the court did not allude to the weight of authority suggesting that the warning of R, following a firm decision that it was not in the public interest to prosecute him and in circumstances where R was exposed to no possibility of punishment but was the subject of measures designed to promote his welfare, did not involve the determination of a criminal charge. What weighed with the court appears from para 36 of the judgment:

    "36  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's case, at pp 460-461, para 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."

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.

    18.  Counsel for R drew the attention of the House to concerns expressed by the Joint Committee on Human Rights ("Scrutiny of Bills: Further Progress Report", Twelfth Report of Session 2002-03, HL Paper 119, HC 765, paras 2.26-2.37) at the registration requirements imposed on young offenders reprimanded or warned for sex offences, and to that Committee's approval of the Divisional Court's decision in this case. He also drew attention to article 40(2)(b)(iii) and (v) of the United Nations Convention on the Rights of the Child, 1989. This provides:

    "(b)  Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

    (iii)  To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law … ;

    (v)  If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; … "

The Convention, however, continues in article 40(3)(b) and (4):

    "(3)  States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law, and, in particular,

    (b)  Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

    (4)  A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence."

    19.  For all the reasons I have given, I am of the clear opinion that neither the warning of R nor the decision to warn him involved the determination of a criminal charge against him. Had they done so, as the appellants acknowledged, there would have been no valid waiver by him of his fair trial right. But as it was, his fair trial rights were not engaged. It was not argued, and I would not in any event accept, that the obligation to register under the 1997 Act for 2½ years was disproportionate. Nor was there any breach of the spirit or the letter of the Convention on the Rights of the Child. Sections 65 and 66 of the 1998 Act were not establishing a system of criminal trial and punishment to be administered by policemen. They were aiming to keep first-time young offenders like R out of court while seeking to prevent future offending in their own interests and that of society. They involved no breach of article 6.

    20.  I mention briefly two points raised in the Divisional Court although not the subject of decision and not pursued in oral argument before the House:

    (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.

    21.  I would allow these appeals and quash the order of the Divisional Court. R is now aged 18, and no further order is called for. If the parties wish to make written submissions on costs they should do so within 14 days.

LORD STEYN

My Lords,

    22.  I share the misgivings about the disposal of this appeal which have been so carefully explained by my noble and learned friend Baroness Hale of Richmond. I agree with the opinion of Baroness Hale. I too do not press my doubts to a dissent. Reluctantly, I too assent to the order proposed by my noble and learned friend Lord Bingham of Cornhill.

LORD RODGER OF EARLSFERRY

My Lords,

    23.  I have had the advantage of considering the speech of my noble and learned friend, Lord Bingham of Cornhill, in draft. For the reasons he gives I too would allow the appeals and quash the order of the Divisional Court.

BARONESS HALE OF RICHMOND

My Lords,

    24.  It is in everyone's interests that children should be brought up to be decent law-abiding members of society. Both national and international law recognise that the criminal justice system is part of that process of bringing them up. The straightforward retributive response which is proper in the case of an adult offender is modified to meet the needs of the individual child. In national law, this is still reflected in section 44(1) of the Children and Young Persons Act 1933:

    "Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training."

    25.  In international law, it is clearly stated in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985, rule 5:

    "The juvenile justice system shall emphasise the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence."

    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.

    26.  The Beijing Rules are not binding on Member States, but the same principle is reflected in the United Nations Convention on the Rights of the Child 1989 (UNCRC), which has been ratified by all but two of the Member States of the United Nations. This is not only binding in international law; it is reflected in the interpretation and application by the European Court of Human Rights of the rights guaranteed by the European Convention: see, for example, V v United Kingdom (1999) 30 EHRR 131; to that extent at least, therefore, it must be taken into account in the interpretation and application of those rights in our national law. Article 3.1 of the UNCRC provides:

    "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Two other articles are particularly relevant to the criminal justice system. Article 37 deals with cruel punishments and deprivation of liberty:

    "States Parties shall ensure that:

    (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:

    "1.  States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

    2.  To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

    (a)  no child shall be alleged as, be accused of, or recognised as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

    (b)  every child alleged as or accused of having infringed the penal law has at least the following guarantees:

    (i)  to be presumed innocent until proven guilty according to law;

    (ii)  to be informed promptly and directly of the charges against him or her; and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

    (iii)  to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

    (iv)  not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witness on his or her behalf under conditions of equality;

    (v)  if considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;

    (vi)  to have the free assistance of an interpreter if the child cannot understand or speak the language used;

    (vii)  to have his or her privacy fully respected at all stages of the proceedings.

    3.  States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children allege as, accused of, or recognised as having infringed the penal law, and, in particular:

    (a)  the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;

    (b)  whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

    4.  A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence."

 
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