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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Aru, R (On the Application Of) v The Chief Constable of Merseyside [2004] EWCA Civ 199 (30 January 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/199.html Cite as: [2004] EWCA Civ 199, [2004] WLR 1697, [2004] 1 WLR 1697 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE ELIAS)
The Strand London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE MAURICE KAY
____________________
THE QUEEN ON THE APPLICATION OF CHARLIE ARU | Appellant | |
-v- | ||
THE CHIEF CONSTABLE OF MERSEYSIDE | Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR JOHN DE BONO (instructed by Helen Mercer, Merseyside Police, Liverpool L69 1JD) appeared on behalf of the Respondent
____________________
Crown Copyright ©
"... I am satisfied that [Mr Aru] has not shown to the requisite standard that events occurred as he maintains. I am not prepared, in the light of the documentation and the evidence I have heard, to say that these police officers did, on the balance of probability, act in the way which he indicated. Without his being able to establish that, it is common ground that this application must fail."
"It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."
That has to be seen in context. As Lord Hoffman stated in Government of the United States of America v Montgomery [2001] 1 WLR 196 (at page 202C), the second of Viscount Simon's sentences is "illustrative" and "not an exhaustive definition of such proceedings". In Amand Lord Wright said (at pages 159-160):
"The words 'cause or matter' are, in my opinion, apt to include any form of proceeding. The word 'matter' does not refer to the subject matter of the proceeding, but the proceeding itself. It is introduced to exclude any limited definition of the word 'cause'. In the present case, the immediate proceeding in which the order was made was not the cause or matter to which the section refers. The cause or matter in question was the application to the court to exercise its powers under the Allied Forces Act and the order and to deliver the Appellant to the Dutch military authorities. It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That was the matter of substantive law. The writ of habeas corpus deals with the machinery of justice, and is essentially a procedural writ the object of which is to enforce a legal right."
Later, he said (at page 162):
"... If the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is 'a criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but the effect of the order is to subject by means of the operation of English law the persons charged to a criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter..."
In Day v Grant [1987] 1 QB 972 Sir John Donaldson MR said (at 976A):
"So Lord Wright was saying that you look not at the particular order under appeal, but to the underlying proceedings in which that order was made and those are the proceedings which have to be characterised as criminal or non-criminal."
"Where proceedings are initiated in the Crown Court following an allegation of a breach of the criminal law, it appears to me that an overall view of the proceeding is appropriate and not an order by order analysis (lord Wright in Amand). That was also contemplated by Viscount Simon LC in Amand when referring to 'the nature and character of the proceedings' and by Lord Donaldson's reference to looking at the 'underlying proceedings' in which the order was made... As Lord Hoffman observed in Montgomery, Viscount Simon LC in Amand when referring to the direct outcome of proceedings being the possible punishment of the Defendant was giving an illustration relevant to the facts of that case and not an exhaustive definition of the proceedings.
The Crown Court orders under consideration did not cease to be orders in 'a criminal cause or matter' because, upon the verdicts entered, the statute empowered the court to make a custodial order in the absence of a conviction. The orders were in no way collateral to the criminal proceeding which had been initiated by the making of the criminal charge. They provided a method of giving effect, in circumstances in which a conviction is not appropriate, to what had plainly been initiated as a criminal proceeding. They were not collateral to the criminal proceedings in the way that restraint and confiscation orders are."
"It is a method of disposal of criminal cases outside court which is more severe in possible consequences than a warning but usually less severe in its outcome than a successful prosecution.
A formal caution is not something to be regarded lightly. Records are kept of the administering of cautions. The Home Secretary has power to direct over what period of time records should be retained... We understand... that in practice a record of caution will be kept for a minimum of three years. Such a caution, while carrying no immediate disagreeable consequences for the recipient, has potential adverse consequences for him should he be accused of offending on a future occasion. He is more likely to be prosecuted for that offence and he will not be able to claim a good character before the trial court. If convicted, the existence of a prior formal caution may affect his sentence. Formal cautions are usually cited after any conviction of a juvenile. In practice they are rarely cited in cases of adult offenders but may be referred to if they are relevant to the crime under consideration."
(The question of the relevance of extant cautions to the issue of good character in the context of a subsequent criminal trial was further considered by the Court of Appeal Criminal Division Martin [2000] 2 Crim App R 42). This is to be contrasted with proceedings such as those relating to an application for an anti-social behaviour order which are civil because no criminal offence need be established, no conviction or condemnation as guilty of an offence is implied, no penalty ensues (unless and until there is a subsequent breach) and the order does not go on the person's criminal record. For these reasons such orders were classified by the House of Lords in Clingham v Royal Borough of Kensington and Chelsea [2002] UKHL 39 as not relating to a criminal cause or matter. They are civil, their purpose is preventive and they are more akin to injunctions.
"1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal."
This provision does not avail Mr Aru. It was not incorporated into English law by the 1998 Act. Moreover, I cannot see how a caution, which can be challenged by way of an application for judicial review, can be said to give rise to even an arguable breach of the Seventh Protocol. In my judgment neither Article 6 of the Convention, nor Article 2 of the Seventh Protocol has any application to the present case.
(Appeal dismissed; the appellant do pay the respondent's costs of the appeal, such costs to be the subject of a detailed assessment by a costs judge).