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Cite as: [2012] EWHC 283 (Admin)

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Neutral Citation Number: [2012] EWHC 283 (Admin)
CO/1285/2010

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand
London WC2A 2LL
20 January 2012

B e f o r e :

LORD JUSTICE AIKENS
MR JUSTICE MADDISON

____________________

Between:
LEE Claimant
v
CHIEF CONSTABLE OF ESSEX POLICE Defendant

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Mr Leslie Thomas and Mr T Stoate (instructed by Guile Nicholas) appeared on behalf of the Claimant
Mr Matthew Holdcroft (instructed by Legal Department, Essex Police Force) appeared on behalf of the Defendant

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. MR JUSTICE MADDISON: This is an application by the claimant, David Lee, for judicial review of a decision made on 10 July 2009 by the Chief Constable of the Essex Police ("the defendant") refusing to quash a caution that had been administered to the claimant on 19 August 2008 in relation to offences of possessing indecent photographs of children contrary to Section 160 of the Criminal Justice Act 1998. More specifically, the claimant seeks a declaration that the defendant erred in law when making his decision, an order quashing that decision and an order requiring him to quash the caution.
  2. At the time when the claimant was cautioned, the guidance to be followed by police officers as to whether a caution should be administered in a particular case and, if so, how it should be administered was provided by Home Office Circular No 16/2008. This had come into effect on 10 July 2008, replacing Home Office Circular No 30/2005. However the police sergeant involved in administering the caution had not been made aware of the circular of 2008 and was following or purporting to follow that of 2005. It was the claimant's appreciation of this that led to his making a complaint to the Professional Standards Department within the Essex Police on 19 November 2008. When this was rejected on 4 February 2009 the claimant appealed to the Independent Police Complaints Commission ("IPCC") on 6 March 2009. Complaint was made not only that the wrong circular had been applied but also that the officers of the Essex Police had relied too heavily on the fact that the claimant had been legally represented when he was cautioned and had failed properly to consider whether the claimant had made a reliable admission of guilt before administering the caution.
  3. On 29 May 2009 the IPCC upheld the complaint insofar as it related to the application of the wrong circular. In the light of that, the claimant's present solicitors wrote to the defendant on 11 June 2009 asking him to quash the caution. The defendant replied by letter dated 10 July 2009 declining to do so. It was this that prompted the present application for judicial review.
  4. It will be helpful at this stage to set out the sequence of events that led to the claimant being cautioned. In this regard the defendant has relied in paragraphs 11 to 13 of his skeleton argument, as if they were evidence, on things reportedly said by Mr Oddy - the claimant's legal representative at the time that the claimant was cautioned - to Mr Mark Harris (one of the partners in the solicitor's firm by which Mr Oddy was employed), and then passed on by Mr Harris to the claimant, in correspondence relating to a complaint which the claimant was then making against the solicitor's firm. There is no witness statement from Mr Oddy. We accept the submission made by Mr Thomas, counsel for the claimant, that the matters referred to in paragraphs 11 to 13 have no evidential status. We will disregard them.
  5. It is accepted however that the defendant is entitled to rely on the witness statements of Detective Sergeant Gregory Potter and Police Sergeant Rob Dickson, dated 11 and 18 July 2011 respectively, which form part of the core bundle of documents provided for the court.
  6. On 6 November 2007, four police officers attended at the claimant's home. They searched it. A number of computers, video cassettes and discs were taken from the house and family area. They were later examined and found to contain four indecent moving images of children, three at level 4 on the Copine Scale and one at level 3.
  7. Shortly after 11 o'clock on the morning of 19 August 2008, the claimant attended voluntarily - indeed by prior arrangement - at Braintree Police Station. He was accompanied by a legal representative Mr Kevin Oddy, to whom I have already referred. Mr Oddy was a legal executive and a trained police station representative employed by the solicitors firm of Sanders Witherspoon. The claimant was arrested by Detective Sergeant Potter on suspicion of possessing the indecent images contrary to Section 160 of the 1998 Act. He was cautioned and made no reply. He was seen by a custody sergeant who authorised his detention. He was placed in a cell prior to having a consultation with his solicitor. At about 11.20, before the complainant was interviewed, Detective Sergeant Potter, by way of pre-interview disclosure, informed Mr Oddy in writing of the circumstances which had led to the claimant's arrest and showed Mr Oddy the indecent images concerned. He also indicated that because of the small number of images and because the claimant was of previous good character the claimant could be eligible for a caution but would have to comply with the requirements of the Sex Offenders Register for two years.
  8. Mr Oddy then had a private consultation with the claimant from 11.33 to about 12.06, these times being taken from the custody record. Detective Sergeant Potter then interviewed the claimant under caution. The interview lasted from about 12.06 to about 12.52, again according to the custody record. Mr Oddy was present. It is accepted that during the interview the claimant made a clear admission of guilt though the reliability of the admission is something to which I will have to return.
  9. On conclusion of the interview, but still in the interview room, Mr Oddy informed Detective Sergeant Potter that the claimant would accept a caution and that he - Mr Oddy - had explained the two-year sex offenders registration requirement to him. Detective Sergeant Potter then said that as admissions had been made during the interview he would try to obtain authority to deal with the matter by way of a caution. He then spoke by telephone to Detective Inspector Enstone who authorised a caution to be administered.
  10. At about 13.20 Detective Sergeant Potter accompanied the claimant and Mr Oddy to the custody area and explained to the custody sergeant Rob Dickson that the claimant had made admissions in interview regarding the possession of indecent images of children and that Detective Inspector Enstone had authorised the issue of a caution. Police Sergeant Dickson then explained that by signing the caution the claimant would be admitting his guilt of the offence. The caution, it was explained, would not be a criminal conviction but could be referred to in any subsequent criminal proceedings and would have to be disclosed were the claimant to apply for certain types of employment.
  11. Police Sergeant Dickson accepts that he was unaware of the 2008 Home Office circular, and was guided by a document referred to by him as the Essex Police Adult Cautioning Policy which itself was based on the 2005 Circular. On page 5 of this 2005 policy the following is stated:
  12. "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."
  13. The claimant then signed a caution form. The form incorporated the following declaration:
  14. "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.

  15. Then the claimant signed a sex offenders registration form. This part of the process was overseen by Detective Sergeant Potter. Before the claimant signed the form, Detective Sergeant Potter explained to him that by signing it he might be precluded from working with children and gave him a separate form explaining the requirements and restrictions that would apply to him when he had signed the sex offenders registration form. That sex offenders registration form the claimant then signed.
  16. I turn to the law governing applications for judicial review of this kind. The law is to be derived principally from two authorities: R v Commissioner of the Police for the Metropolis ex p P, The Times, 24 May 1999, Vol 160 JP 367 and R v Metropolitan Police Commissioner ex p Thompson [1997] 1 WLR 1519.
  17. The law in my view can be shortly stated. The court has jurisdiction to quash a caution but only in an exceptional case where a caution is administered in clear breach of the guidelines set out in the relevant Home Office circular. However police officers responsible for applying the circular must enjoy a wide margin of appreciation of the nature of the case and whether the pre-conditions for a caution are satisfied. Even if there has been a clear breach of the guidelines, the court retains a discretion not to interfere. In each of these two cases the caution concerned was in fact quashed, in the former because the person concerned had been cautioned even though there was no evidence of his guilt and he had not made a clear and reliable confession of the offence concerned; and in the latter because the person concerned had been wrongly induced to accept a caution. Plainly each of these cases fell into the exceptional category to which I have referred.
  18. In my judgment, in the light of those authorities, the present application is to be determined by considering to what extent the police officers concerned did and did not in fact comply with the 2008 Circular - of which they were ignorant - and then by considering whether the extent to which they did not do so can be described as significant and substantial and took the case into the limited category described by the authorities to which I have referred in which it is appropriate for the court to quash a caution. It is not helpful, in my view, to consider to what extent they did or did not comply with the 2005 circular, it being common ground that this circular had been withdrawn at the relevant time.
  19. The claimant contends that the police officers dealing with him were in breach of paragraphs 24, 25, 36 and part of 44 of the 2008 circular. These paragraphs read as follows:
  20. "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.

  21. One of the claimant's contentions is that Police Sergeant Dickson was in breach of paragraph 24 of the 2008 circular by raising the prospect of a caution before the claimant made any admissions. This had the effect, it is submitted, of pressing the claimant to admit offences in order to receive a simple caution and thus render the admission that followed unreliable. In my view, this argument seeks to resurrect an argument that the claimant was induced to accept a caution, in relation to which the claimant was refused permission to proceed at an earlier hearing. The argument proceeds by drawing a distinction between the words "press" and "induce" in paragraph 24 of the 2008 circular. It is right, as Mr Thomas observes, that these two words are referred to disjunctively in paragraph 24 and there may be some cases in which it may be possible to conclude that a person, though pressed, had not been induced or vice versa. In their application to this case however it is not possible in my view to draw a significant distinction between them.
  22. I would add however that Detective Sergeant Potter did no more than inform Mr Oddy before his consultation with the claimant that a caution might - and I emphasise the word "might" - be available. During the later interview with the claimant, Detective Sergeant Potter did not refer to the possibility of a caution or offer any other kind of inducement to confess any crime or to accept a caution. It was only after the interview that Mr Oddy said that the claimant would accept a caution, and it was only after that that Police Sergeant Dickson asked Detective Inspector Enstone to consider whether a caution might be administered. Contrary to a contention made in writing on the claimant's behalf, paragraph 24 does not prohibit any mention of a possible caution by a police officer at any stage before a confession is made. Had it been necessary to do so, I would therefore have found that there was in this case no evidence of inducement or pressure.
  23. Next, the claimant contends that in breach of paragraphs 24, 25 and 36 of the 2008 circular he was not provided with a written explanation of the consequences of accepting a caution, in particular in relation to but not confined to the impact of the notification and registration requirements of Part II of the Sexual Offences Act 2003, before he agreed to accept the caution. In my judgment, that submission is unsustainable in the face of the evidence of Police Sergeant Dickson relating to the 2005 form to which I have already referred. Police Sergeant Dickson states that the claimant "would have been handed a copy of the form and told that the form fully explains what the caution would mean to him" and that the claimant "then signed the caution".
  24. Next, the claimant contends that in breach of paragraph 44 of the 2008 circular and the simple caution form (the 2008 form) annexed to it, the form he signed when acknowledging the caution did not make clear the implications for accepting the caution. Nor did it require him to acknowledge by signing it that he had read and understood the implications.
  25. If he was given the 2005 form it was not a document that he was required to - or did - sign. He was, it is submitted, accordingly denied what has been described by Mr Thomas as a "cooling-off period" which, if not expressly referred to in and required by the 2008 circular, can be implied from the requirement of paragraph 25 that the document that is signed itself sets out the implications of receiving a caution.
  26. It is right, as can be seen by comparing the 2005 form and the 2008 form, that the 2005 form was not signed by the claimant even though it was provided to him. In my judgment, however, this failure on the part of the police does not come close to bringing the case into the category of those in which it would be appropriate to quash a caution. I say this for the following reasons. First, on the evidence of Police Sergeant Dickson, the claimant was indeed handed the 2005 form, which explained a number of the implications of accepting a caution, before he accepted a caution albeit that the 2005 form was not signed. He was handed it at a time when he was accompanied by his legal representative. In the ordinary course of events, one would have expected the legal representative to consider the contents of that form with his client.
  27. Secondly, the contents of the simple caution form annexed to the 2008 circular were, in my view, substantially and sufficiently conveyed to the claimant before he signed the caution that he did. The 2008 form contains nine paragraphs. It is necessary, in view of the submissions made to us, to consider some of them separately. Paragraph 1 reads:
  28. "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."
  29. I turn to paragraph 2 of the 2008 form. This reads:
  30. "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.

  31. I turn to paragraph 3 of the 2008 form. This reads:
  32. "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."
  33. Paragraph 4 of the 2008 form reads:
  34. "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."
  35. Paragraphs 5 to 7 of the 2008 form can be taken together. It is not, in my view, necessary to cite them verbatim but they all relate to the effect of a caution on certain kinds of future employment. Detective Sergeant Potter orally informed the claimant that a caution would have to be disclosed were he to apply for certain kinds of employment. Paragraphs 2, 4 and 5 of the 2005 form - read together - indicate the types of future employment in relation to which a caution might be taken into consideration though, it is right to say, not in the same detail as paragraphs 5 to 7 of the 2008 form. To the extent however that paragraphs 5 to 7 are more detailed than the information in fact given to the claimant, it is my judgment that this failure could not begin to be described as significant and substantial.
  36. Paragraph 8 of the 2008 form - again it is unnecessary in my view to cite it verbatim - refers to the Sex Offender Register and the obligations and requirements that go with being placed on that Register. It is quite clear that paragraph 3 of the 2005 form was substantially to the same effect as paragraph 8 of the 2008 form.
  37. Finally, paragraph 9 of the 2008 form reads as follows:
  38. "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.

  39. By way of conclusion, therefore, it appears to me that although the police officers dealing with the claimant were ignorant of the 2008 circular, they did in fact substantially comply with it though I accept that they did not do so entirely. The outcome, in my judgment, was that the claimant was well aware before he signed the caution of the significant implications of doing so and that he gave informed consent when accepting the caution. The extent to which the police officers did not in fact comply with the 2008 Regulation can, in my view, properly be described as falling well short of significant and substantial, and indeed falling well short of those that arose in the two cases to which I referred in which the cautions were quashed. It has not therefore been shown, in my judgment, that the defendant acted unlawfully or unreasonably in refusing to quash the claimant's caution.
  40. I would accordingly refuse this application for judicial review of that decision.
  41. In conclusion, although he has not succeeded, I would like to compliment Mr Thomas on the skilled and appropriately enthusiastic way in which he made his submissions and the considerable charm with which he did so.
  42. LORD JUSTICE AIKENS: I agree with my Lord that this claim for judicial review must be dismissed. I agree with the reasons that he has given. I wish to associate myself with the remarks that my Lord has made about the attractive and forceful submissions of Mr Thomas on behalf of the claimant. Mr Thomas could not have done more in the way he presented the case. But, as my Lord has concluded and as I conclude, this is not a case where this court should intervene.
  43. I would wish to emphasise, however, that the process set out in the Home Office Circular on Simple Caution of Adult Offenders - called HOC 16/2008 - is there to be complied with, not disregarded or flouted by the police who are responsible for administering a simple caution to adults. In an appropriate case this court would not hesitate to intervene, but that is not this case.
  44. In the result, this claim must be dismissed.
  45. Thank you, Mr Thomas.
  46. MR HOLDCROFT: This is an application for costs. There is not a schedule here. I have had a conversation with my friend outside the court. I think it is agreed that an order in principle could be made that costs be agreed, the claimant do pay the defendant's costs, such costs to be subject to detailed assessment if not agreed.
  47. LORD JUSTICE AIKENS: The only problem with that is that detailed assessment is in itself a costly business.
  48. MR HOLDCROFT: Yes.
  49. LORD JUSTICE AIKENS: Unless it is absolutely necessary to subject the parties to that, speaking for myself, I would much prefer that there be some mechanism by which this court can deal with it summarily. It saves everyone time and it saves everyone expense.
  50. MR HOLDCROFT: If I could ask for five minutes, it is likely to be a matter on which counsel could agree.
  51. MR THOMAS: In relation to the issue of costs, I do wish to address you on the principle of costs in the light of your Lordship's findings. My principal submission would be that this is a case, bearing in mind the admitted breaches, that there should be no order for costs. I appreciate that this is a case which I have lost in the sense that I have not succeeded in getting the decision quashed.
  52. Having said that, this is a case whereby the Essex Police, for no good reason - - and no good reason has been put forward, that much is evident from the IPPC's decision letter which your Lordships have seen, and no good reason has been put forward by my friend on behalf of the Essex Police in relation to these proceedings. I make the point that perhaps the most appropriate order on the facts of this case should be no order for costs.
  53. LORD JUSTICE AIKENS: Thank you, Mr Thomas. (To Mr Holdcroft) Have you a copy of the schedule?
  54. MR HOLDCROFT: I do not have a schedule.
  55. LORD JUSTICE AIKENS: I thought you said you had one.
  56. MR HOLDCROFT: No. I do not have a schedule.
  57. LORD JUSTICE AIKENS: Are you in a position and are you willing to tell the court what the figure of the costs is that has been calculated by those behind you?
  58. MR HOLDCROFT: I am in a position to say that counsel's fees alone are in the region of 4,000.
  59. LORD JUSTICE AIKENS: There will be the costs of those instructing you.
  60. MR HOLDCROFT: Those who sit behind me say that there may have been another eight to ten hours of their work at 125 an hour which would come to 1,250 on top of counsel's fees. I am surprised at the hours. They seem very light.
  61. LORD JUSTICE AIKENS: You have obviously done all the work, Mr Holdcroft. So we are talking about total costs of something in the region of 5,250.
  62. MR HOLDCROFT: Yes.
  63. LORD JUSTICE AIKENS: Is there anything you wish to say in response to Mr Thomas's submission that the proper order in this case, bearing in mind the admitted breaches, is no order for costs?
  64. MR HOLDCROFT: I say there are no good reasons to deviate from the usual order for costs following the event. I hope it was clear from my summary grounds and my detailed grounds that the defendant accepted from the outset that there were failings. But I also hope it was clear to the court that the position was that there had been substantial compliance and that it was a matter where, taking the view as a whole, it would be inappropriate to remove the caution, particularly taking into account surrounding issues of offences of that nature.
  65. LORD JUSTICE AIKENS: We will consider the question of costs. (Pause)
  66. We have come to the conclusion on the question of costs that justice will be done if we say that the claimant will have to pay a proportion of the costs. Bearing in mind that it is said that the total costs are in the region of 5,250, we think that the right order to make is that there be an order that the claimant pay the respondent's costs in the sum of 2,500.
  67. Would you like some time in which they should be paid? Normally it is twenty-eight days.
  68. MR THOMAS: Twenty-eight days is fine. I do not seek to go beyond what is the usual order.
  69. Can I raise one matter? I am instructed and I do seek permission to appeal to the Court of Appeal. I can make my submission very shortly, very quickly. It is simply this. I do say that despite findings of fact that your Lordships have made, I say that there is an argument between "press" and "inducement" - number 1.
  70. Secondly, I do say that there is an argument in law in relation to the effect where you have a police force which says it completely omitted to comply with the written requirement of handing documentation over because "we were unaware of [it]" even though orally we may have complied. And, secondly, even though in part our 2005 guidelines cover some of the parts, I say that is nevertheless a significant breach.
  71. Finally, I say there is an argument, contrary to your Lordships finding, that the cooling-off period, in other words paragraph 25 of the 2008 guidelines which seeks to draw a distinction between explaining the consequences as per paragraph 24 but then handing the written document to the offender and giving the offender a chance to consider that before signing the caution is sufficient to render the breach significant.
  72. Finally, I say that bearing in mind the decision not to permit the claimant to argue the inducement point in these proceedings, that is something I would like to take up with the Court of Appeal as well.
  73. LORD JUSTICE AIKENS: I think you are probably too late for that.
  74. MR THOMAS: If I am, my argument would simply be that these proceedings were ongoing. Even though your Lordship said that you were going to limit me, it would have been premature for me to have challenged that point until the outcome of these proceedings.
  75. LORD JUSTICE AIKENS: Mr Thomas, there is no doubt, is there, that this is not a criminal cause or matter?
  76. MR THOMAS: Yes. That is right. Otherwise it would go to the Supreme Court.
  77. LORD JUSTICE AIKENS: Yes.
  78. MR THOMAS: I understand that.
  79. LORD JUSTICE AIKENS: Is that common ground between you?
  80. MR HOLDCROFT: Yes.
  81. LORD JUSTICE AIKENS: Is there anything you want to say on that application?
  82. MR HOLDCROFT: I hear what my friend says. He has not, in my view, identified any errors of law made by your Lordships. Nor has he identified any other good or policy reason for grant of permission at this stage. (Pause)
  83. LORD JUSTICE AIKENS: Mr Thomas, we are going to refuse your application for permission to appeal. This is something you can pursue with the Court of Appeal if you wish to do so.


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