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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lee v Chief Constable of Essex Police [2012] EWHC 283 (Admin) (20 January 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/283.html Cite as: [2012] EWHC 283 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE MADDISON
____________________
LEE | Claimant | |
v | ||
CHIEF CONSTABLE OF ESSEX POLICE | Defendant |
____________________
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(Official Shorthand Writers to the Court)
Mr Matthew Holdcroft (instructed by Legal Department, Essex Police Force) appeared on behalf of the Defendant
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"A copy of the 'information for the offender' form must be handed to offender before the simple caution is administered."
Police Sergeant Dickson says in his witness statement that it was his practice to do this and that the claimant would have been handed a copy of this form and told that it fully explained what the caution would mean to him. I will refer to this form as the 2005 form and will read what seem to me to be the relevant sections of it, adding paragraph numbers which do not appear on the form itself but will aid reference back to the form later in this judgment:
"Consequences of receiving a simple caution
[1] A simple caution is not a form of sentence (which only a court can impose) nor is it a criminal conviction. It is however an admission of guilt. A simple caution forms part of an offender's criminal record and may influence how you are dealt with should you come to the notice of the police again.
[2] A simple caution may also be cited in court in any subsequent proceedings and can be quoted on a Standard or Enhanced Disclosure issued by the Criminal Records Bureau and thus can be made known to a prospective employer. Fingerprints and other identification data can also be held on databases to which the Police National Computer has links.
[3] Where the offence is listed in Schedule 3 to the Sexual Offences Act 2003, accepting a simple caution in relation to such an offence will result in you becoming a 'relevant offender' for the purposes of the notification and registration requirements of Part II of the Act. This means that you will be on the 'Sex Offenders Register' for two years from the date of the caution.
[4] If your occupation is defined as a 'notifiable occupation' the caution will be disclosed by the police to your employer. If the caution relates to an offence which is specified in a list maintained by the Department for Education and Skills you will be disqualified from working with children in a regulated position and will commit an offence if you undertake or seek to undertake such work.
[5] You are not permitted to lawfully conceal a simple caution if specifically asked if you have received any cautions, for example by prospective employers. However you will not be required to admit the existence of a previous simple caution if asked if you have any previous convictions.
[6] If a victim requests your name and address in order to institute civil proceedings the information must be disclosed by the police .....
Do I have to accept a caution?
[7] No. Simple cautions are only for people who accept that they committed the offence being investigated. If you do not agree you committed the offence you should talk to someone who can give you legal advice. You should always bear in mind the consequences of receiving a simple caution as outlined above."
"I admit the offences described on page 2. I agree to a caution. I am aware that details may be disclosed to a court should I subsequently be found guilty of an offence. I am aware that a caution does not preclude an aggrieved party bringing criminal proceedings or a civil action."
The form was countersigned by Police Sergeant Dickson. I should add that the "offences described on page 2" were ones contrary to Section 160 of the 1998 Act.
"24 Has the offender been made aware of the significance of a simple caution?
If a simple caution is being considered, then the full implications must be explained (and provided in writing) to the offender. Under no circumstances should suspects be pressed, or induced in any way to admit offences in order to receive a simple caution as an alternative to being charged. See paragraphs 33 to 41 for further information on the implications of accepting a caution and the Appendix for a sample pro forma to be given to and signed by the offender.
25 Has the suspect given informed consent to being cautioned?
'Informed Consent' can be given when the suspect has received in writing an explanation of the implications of accepting a simple caution before he/she agrees to accept a simple caution. After receiving this, if the suspect does not give his/her consent, the police may choose to continue with a prosecution in accordance with the Director's Guidance on Charging. Officers must avoid any suggestion that accepting a simple caution is an 'easy option'.
.....
36 It is particularly important to explain the consequences of accepting a simple caution where the offence is listed in Schedule 3 to the Sexual Offences Act 2003 before the caution is administered. Accepting a simple caution in relation to such an offence will result in the offender becoming a 'relevant offender' for the purposes of the notification and registration requirements of Part 2 of the Act. This means that the offender will be put on the 'sex offenders register' for 2 years from the date of the caution.
.....
44 ..... The simple caution should be deemed to have been administered only when the offender has signed a form which makes clear the implications for accepting the caution. The offender should be given a copy of the form to take away ..... "
For the avoidance of doubt, this quotation includes only the comparatively small relevant parts of paragraph 44.
"I have admitted to committing the offence(s) shown above. A simple caution is not a criminal conviction, but I understand that details of the caution will be kept on police databases."
In relation to the first sentence of this paragraph, it is not disputed that the claimant had in fact admitted the offence. With regard to the second sentence, Detective Sergeant Potter informed the claimant orally before he signed the caution that the caution would not be a criminal conviction but could be referred to in any subsequent criminal proceeding. Similar information was conveyed by paragraphs 1 and 2 of the 2005 form. The declaration in the caution which the claimant subsequently signed stated:
"I am aware that details may be disclosed to a court should I subsequently be found guilty of an offence."
"If new evidence comes to light suggesting that the offences I have committed are more serious, you might still take legal action against me."
It is not disputed that this information was not conveyed to the claimant. It had in fact represented the law both when the 2005 form was issued and when the 2008 form was issued though it was only expressly referred to in the 2008 form. It would have been more satisfactory had the equivalent of paragraph 2 of the 2008 form been drawn to the claimant's attention. But, in my judgment, the failure to do so does not take this case into the category of those in which a caution should be quashed. The paragraph represented the existing law and the claimant was at all material times legally represented. The failure to draw the equivalent of paragraph 2 to the claimant's attention could not in my mind be described as a significant and substantial failure.
"If there are any victims as a result of these offences they might still take civil action against me and you might give my name and address to the victims so they can do this."
In my view this information was sufficiently conveyed by paragraph 6 of the 2005 form. In addition, the declaration in the caution signed by the claimant included the words -
"I am aware that the caution does not preclude an aggrieved party bringing criminal proceedings or a civil action."
"If I am charged with another offence and I go to court, you will tell the court that I have received this simple caution."
Detective Sergeant Potter told the claimant orally that a caution could be referred to in any subsequent criminal proceeding, and the same was made clear in my view in paragraph 2 of the 2005 form. Moreover the declaration on the caution signed by the claimant stated:
"I am aware that details may be disclosed to the court should I subsequently be found guilty of an offence."
"I understand that accepting this [simple] caution may mean that some countries will not allow me to live there permanently and some may not allow me to visit (for example, on business, for a holiday or as a student)."
It is accepted that this information was not imparted to the claimant in any form. However the information is limited to information that the caution may, and I emphasise the word "may", mean that the claimant might have difficulty with entry into or residence in some, and I emphasise the word "some", countries. Paragraph 9 did no more than represent the law. And indeed I accept the submission made on behalf of the defendant by Mr Holdcroft of counsel that it did no more than impart material or information that one would expect to have been widely known in any event. The failure to impart to the claimant information equivalent to paragraph 9, again, in my judgment, cannot properly be described as significant and substantial.