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)
27. Of particular relevance to this case are article 40.3 and 40.4. Article 40.3 encourages measures for dealing with children alleged as, accused of or recognised as having infringed the criminal law without resort to judicial proceedings, 'providing that human rights and legal safeguards are fully respected'. Article 40.4 encourages educational and welfare based community disposals 'to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence'. But this has to be read alongside article 40.1, which recognises the child's right 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'.
28. This focus on prevention and diversion is reinforced by the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) 1990. The fundamental principles emphasise that 'Young persons should have an active role and partnership within society and should not be considered as mere objects of socialisation or control' (I.3); delinquency prevention policies should 'avoid criminalising and penalising a child for behaviour that does not cause serious damage to the development of the child or harm to others' (I.5); and that official interventions should be 'pursued primarily in the overall interest of the young person and guided by fairness and equity' (I.5(c)).
29. There can be no doubt, therefore, that constructive diversion policies and practices are thoroughly consistent with the fundamental principles of all these international instruments. However, diversion is not to be bought at the cost of basic fairness to the child. The child is a human being, not a mere object of social control. As Dame Elizabeth Butler-Sloss memorably put it in her Report on Child Abuse in Cleveland 1987, 'the child is a person and not an object of concern'. Children will not be brought up to obey the law and respect the rights of others if they perceive that the system is treating them arbitrarily or unfairly. The fundamental issue in this appeal is whether it is fair to subject a child to a formal diversion process with mandatory legal consequences without first obtaining his informed consent.
30. The high water mark of the welfare-based approach to juvenile offending in the United Kingdom was the introduction of the Scottish children's hearing system under the Social Work (Scotland) Act 1968 (and now contained in the Children (Scotland) Act 1995). This diverts children from the criminal justice system into a specialist child care system which also caters for children who have been ill-treated or neglected or present other causes for concern. The 1968 Act was followed in England and Wales by the Children and Young Persons Act 1969 which as originally designed would have replaced the prosecution and punishment of children under 14 with care proceedings where only welfare disposals were possible and restricted the prosecution of young persons of 14 but under 17. This aspect of the scheme was never brought into force. But the Act also replaced most of the overtly punitive disposals for the younger offenders with supervision, with or without intermediate treatment requirements, and care orders. These were administered by local social services departments, along with the services they administered for other children in need, rather than by the probation and prison services.
31. Combined with this more welfare based approach to court disposals was an increased emphasis on dealing with children without taking them to court at all. The police caution was part of this approach. At first this was a matter of local policy or discretion, with each police force developing its own criteria. However, Watson and Austen, in The Modern Juvenile Court, 1975, p 80, suggest that most forces would caution only if the juvenile freely admitted the offence; his parents were content with the admission, agreed to his being cautioned and appeared co-operative; enquiries revealed no grave social or psychological problems in his background; and the complainant was willing to leave matters to the police. Some also added that the offence must be capable of being proved in court and that if there were two or more offenders they should all be dealt with in the same way: one of the problems with a welfare-based approach is that children who have committed the same offence may be dealt with in different ways.
32. The Home Office first gave guidance in Home Office Circular No 70/78, The Citing of Police Cautions in the Juvenile Courts. This pointed out that an increasing proportion of children and young persons were being dealt with in this way: in 1976, of all children found guilty or cautioned for indictable offences, 65% were cautioned; the corresponding figure for young persons was 35%. All those responsible for treating young people in the juvenile courts now thought that these cautions should be cited if the juvenile later appeared in court for another offence. That being so, there was a need for uniformity in the criteria adopted in deciding to caution. There already was a high degree of consistency in these: that the evidence available was sufficient to support a prosecution; that the juvenile admitted the offence; and that his parent or guardian agreed to a caution being administered. If these three conditions were met, the decision to caution would take into account the background of the offender; the gravity of the offence; the wishes of the aggrieved person; and any recommendations of social services and other agencies. The need for close working liaison with local social services departments was stressed. Many forces already had juvenile liaison bureaux for that purpose.
33. The same criteria were repeated, with some refinements, in the three circulars which followed. Home Office Circular 14/1985, The Cautioning of Offenders, dealt separately with the cautioning of juveniles and adults. Juveniles should not be prosecuted unless it was absolutely necessary. But there was also a concern that cautioning led to 'net-widening' with more juveniles being drawn into the formal system than was necessary. Hence cautioning should not be used unless the circumstances of the case were sufficient to justify it. An informal word of advice or warning might be more appropriate. The minimum criteria were as before: that the evidence complied with the Attorney-General's guidelines on criteria for prosecution; that the juvenile admitted the offence; that it was not enough that he admitted all or some of the facts, he should recognise his guilt; and that his parent or guardian consented, having had explained to them that a record would be kept, that it might influence the decision to prosecute if the juvenile offended again, and that it might be cited in court. If those criteria were met, a quick decision to caution should be possible if both the offence and the offender's record were not serious. Otherwise the police might wish to consult other agencies and should take into account the interests of the aggrieved party, the offender's circumstances, and the need for consistency with others in a group of offenders, although this should not prevent consideration of each on an individual basis.
34. Research by the University of Birmingham however revealed that there were uncertainty and wide variations in the use of 'no further action' and informal warnings rather than formal cautions. There was also concern about the use of multiple cautions, although their use was less than was often claimed. Hence Home Office Circular 59/90, The Cautioning of Offenders, laid down national standards for cautioning both juvenile and adult offenders. These included the same three minimum criteria of sufficiency of evidence, admission of guilt and informed consent. If a person met the first two criteria but refused consent to a caution, prosecution need not be the only realistic option, particularly if the offender was thought to be in need of help. The circular went on to elaborate upon the public interest considerations and the views of the victim, to be taken into account if the first two criteria were met. It drew a distinction between formal cautions, formally recorded and cited in any later proceedings; instant cautions, administered very soon after the offence and without consultation; informal warnings or cautions, where the criteria were met, but which would not be recorded or cited in court; and no further action, when even this was not thought appropriate. Once again, in cases of doubt, the police might wish to consider consulting the juvenile liaison panels established in some but by no means all forces. The effectiveness of cautions was likely to be enhanced if they were backed up by arrangements for referral to appropriate agencies of voluntary organisations for support, guidance or involvement in the community.
35. This guidance was highly effective in keeping children out of the criminal justice system: in 1993, 90% of boys and 97% of girls were diverted from court through police cautioning: see L Gelsthorpe and A Morris, "Much ado about nothing - a critical comment on key provisions about children in the Crime and Disorder Act 1998" (1999) 11 CFLQ 209, at 210. The national standards were slightly revised and reissued with Home Office Circular 18/1994, The Cautioning of Offenders, which again dealt with juvenile and adult offenders together. This was the beginning of a tightening up process, for example emphasising that 'Nor does the presumption in favour of diverting juveniles from the courts mean that they should automatically be cautioned, as opposed to prosecuted'. There was concern that the cautioning system was being brought into disrepute, first by using it for really serious offences even including attempted murder and rape, and second by the use of multiple cautions. More than one caution should only be considered where the second offence was trivial or there was a sufficient time lapse since the first to suggest that it had had some effect. Nevertheless, the general principles were essentially unchanged, as were the three minimum criteria for a formal caution.
36. Several features emerge clearly from these circulars. We see a developing encouragement of the use of cautions, not only for juvenile but also for adult offenders; an explicit policy that juveniles should not be prosecuted unless this was necessary; the encouragement of consultation with and referral to other agencies, but no formal link between cautioning and more constructive interventions to help the young offender change his ways. But we also see a consistent requirement that the offender admit his guilt and that his parent or guardian consent to the caution being administered. The context for this was an explicit recognition of a 'do nothing' option which had no further consequences, whereas the caution would be recorded and cited in court. We also see a requirement that there be sufficient evidence to warrant a prosecution. This too is an important safeguard against the danger inherent in all formal diversion schemes: the pressure, whether implicit or explicit, which is put upon the young person to 'admit it and we'll let you off with a caution'. Explicit pressure would invalidate the admission and thus the caution: see R v Commissioner of Police of the Metropolis, ex parte Thompson  1 WLR 1519. But the implicit pressure is always there.
37. Thus the provisions of the 1998 Act were not a brand-new diversionary scheme which leapt onto the statute book with the brand-new aim of diverting children away from a life of crime. They were, as is clear from the Home Office Consultation Paper, Tackling Youth Crime, 1997, and White Paper, No More Excuses - A New Approach to Tackling Youth Crime in England and Wales, 1997, Cm 3809, a very considerable toughening up upon what had gone before. They put what had previously been left to variable police practice on a statutory footing. Formal action could only be taken under the statute; the 2000 and 2002 Guidance, paras 12 and 4.1, make clear that there will remain only very limited discretion to take informal action; the statutory scheme itself limited the number of times there could be resort to formal reprimands and warnings thus catapulting repeat offenders into the courts much earlier than previously; the immediate consequences of these formal processes were also expanded - the options for the court should the offender later be prosecuted for another offence were reduced; in addition to finger-printing and recording on the police national computer, there was the possibility of a requirement to notify one's whereabouts to the Sex Offenders Register.
38. It is also worth bearing in mind what would face these children once they got to court. The welfare based disposals of the 1969 Act had by now been replaced with a much more specifically punitive range of sentencing criteria and disposals, including custodial sentences, the use of which has rocketed in recent years. Thus the Joint Committee on Human Rights, in its report on The UN Convention on the Rights of the Child, Tenth Report of Session 2002-2003, HL Paper 117, HC 81, para 39, points out that on 31 January 2003 there were nearly 3000 children under 18 locked up in England and Wales, almost twice as many as ten years ago, during a period when recorded offending by children had been in decline. On the other hand, the new scheme was linked to a much more systematic system of constructive intervention through referral to the Youth Offending Team, and might well involve a restorative conference enabling the young offender to understand the impact of the offence upon his victim and to make amends. A reprimand or warning was no longer just a diversion away from the criminal courts but also a diversion towards something which might do some good.
39. Set against the consistent approach in the previous circulars, the lack of any requirement for the consent of either the child or his parent, guardian or other appropriate adult is striking and must have been deliberate. It appears inconsistent with rule 11 of the Beijing Rules:
40. Professor Geraldine Van Bueren, in The International Law on the Rights of the Child, 1998, at p 174, suggests that it is also inconsistent with article 40(3)(b) of the UNCRC:
41. This issue was not addressed by the Joint Committee on Human Rights in their report on the UN Convention on the Rights of the Child. This is not surprising, because they were addressing the concerns raised by the UN Committee on the Rights of the Child when examining the UK's compliance with UNCRC based on the UK's 1999 report. The 1997 and 1998 Acts were only just on the statute book and hardly mentioned in that report. But the issue is addressed in the Joint Committee's Twelfth Report of Session 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 119, HC 765; this draws special attention to the Sexual Offences Bill, including the mandatory period of notification to the police of young sexual offenders. The Committee points out that this requirement is within the ambit of UNCRC article 40.1, requiring States parties to recognise the right of children who have violated the penal law to be treated in a way which takes account of their age, and article 40.4, providing that the dispositions available for dealing with young offenders should aim to ensure that children are dealt with 'in a manner proportionate both to their circumstances and the offence'. The Committee was not satisfied that the automatic one year notification requirement following a reprimand or final warning would always be a fair and proportionate result (para 2.33). Their concern was 'somewhat eased' by the decision of the Divisional Court in this case, which required informed consent to be given in full knowledge of the consequences (paras 2.34 to 2.36).
42. For these reasons, I have grave doubts about whether the statutory scheme is consistent with the child's rights under the international instruments dealing with children's rights. The rigidity of the scheme undermines the emphasis given to diverting children from the criminal justice system, propels them into it and on a higher rung of the ladder earlier than they would previously have arrived there, and thus seriously risks offending against the principle that intervention must be proportionate both to the circumstances of the offender and of the offence.
43. There is also a risk that it is arbitrarily applied in the individual case. This particular case was not handled in the most sensible way. In particular, the failure to tell the child and his step-father the full consequences of the warning, including the sex offender registration requirement, obviously upset them both and left them with a considerable sense of injustice. They are also concerned that the record on the police national computer does not accurately reflect the admissions made. Any educational benefit to be gained from diversion is severely jeopardised if the offender feels unjustly treated. We are also told that no further steps were taken by the Youth Offending Team to work with the child in ways which might have helped him to see why his conduct was unacceptable and to engage with girls in a more sensible and ultimately more successful way.
44. But that does not mean that it was in breach of the child's rights under the European Convention on Human Rights. These are less extensive than his rights under UNCRC, although the European Court would undoubtedly take those rights into account when interpreting and applying articles 6 and 8 in this case. The parties are agreed that the child did face a criminal charge for the purpose of article 6 at the time when he was given the warning. He had not been formally charged, but he had been arrested, interviewed under caution and bailed to return. Neither the Secretary of State nor the Durham Police wish to withdraw that concession in the light of the decision of this House in Attorney General's Reference (No 2 of 2001)  UKHL 68;  2 AC 72. We should, therefore, approach the case on the basis that the child was facing a criminal charge.
45. Did it cease to be a criminal charge when the police decided not to prosecute? If there were no further consequences from a decision not to prosecute, that would obviously be so. Police and prosecuting authorities drop charges every day and it would make little sense for the person charged to be able to insist on a public determination of the issue: see X v United Kingdom (1979) 17 DR 122. But reprimands and final warnings do carry consequences. Individually each of these can be explained away as preventive rather than punitive. Cumulatively, however, they amount to a considerable modification of the child's legal status. He and many others might consider it punitive. He faces a higher penalty should he offend again, he must notify the police of his whereabouts for some time, and his details are on a computer to which a very large number of people have access, albeit under carefully controlled circumstances. This is not the public pronouncement of guilt which the Divisional Court thought it to be, but it is the widespread dissemination of the knowledge of that guilt. Had it indeed had the effect of 'publicly pronouncing his guilt', I would have found it difficult not to regard it as the determination of a criminal charge. The domestic characterisation of a measure as preventive rather than punitive cannot always be the end of the story. Nor can the perception of an offender and his family that he is being punished, as well as being helped, be completely irrelevant to the interpretation of an autonomous Convention concept.
46. However, as there was no public pronouncement of guilt, was there a 'determination' of the charge? Two important decisions were made in this case. The first was the child's decision to make the admissions he did. The second was the police officer's decision to administer a final warning rather than to prosecute him. It is good for children to learn to take responsibility for their actions: that is part of growing up to be responsible members of society. It is therefore good for children to 'own up' when they have done wrong. But it is absolutely vital that children's admissions, like adults', should be voluntary and reliable. Corners should not be cut just because the offender is a child. They must not be under any pressure to 'admit it and we'll let you off with a caution'. In essence that is why the case of U, which was decided together with this, was successful in the Divisional Court and there has been no appeal. His case, like the earlier case of R v Commissioner of Police for the Metropolis, ex parte P  3 Admin LR 6, demonstrates that judicial review can be an effective safeguard in such cases.
47. Once a reliable admission has been made, however, the decision whether or not to prosecute is for the authorities rather than the accused. It is not clear to me why, in principle, the accused should have any voice in the matter, as long as the consequences of a decision not to prosecute do not amount to a penalty. Indeed, it is not clear to me why there should be any distinction drawn between adults and children in this respect. The willingness of the offender to participate in diversionary programmes is obviously relevant to whether or not it would be appropriate to prosecute, but it is clear that he cannot be compelled to do so, nor are they likely to work if he is. The requirement of consent in rule 11.3 of the Beijing Rules (para 16 earlier) specifically relates to 'any diversion involving referral to appropriate community or other services'.
48. For those reasons, it seems to me that the point at which it is important to be clear that the child is a volunteer is when he is asked to admit the offence or to participate in a rehabilitation programme. Sensibly, the revised guidance now requires that the child and his parents, carers or other appropriate adult have access to information about the options available including the final warning scheme and its consequences before they are asked whether they admit the offence: see Final Warning Scheme: Guidance for the Police and Youth Offending Teams, 2002, para 4.14.
49. As things stand, therefore, although not without considerable misgivings because of the potentially serious effects upon the child's future, I have reached the conclusion that this aspect of the scheme is compatible with the child's Convention rights and that these appeals should be allowed.
LORD BROWN OF EATON-UNDER-HEYWOOD
50. 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.
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