Aru, R (on the application of) v Chief Constable of Merseyside Police

MR JUSTICE ELIAS: This is an application for judicial review upon permission granted by Sir Richard Tucker. The claimant in this case, Mr Charles Aru, has received a caution from the police. He alleges that it was unlawfully imposed and contrary to the relevant rules relating to the giving of cautions, and that it should be quashed. Unusually for a judicial review case, the outcome here (both parties accept) depends on disputed factual evidence. Accordingly, Stanley Burnton J gave permission for cross-examination of relevant witnesses in this case, and I have heard evidence today from those witnesses.

The legal context is not in dispute, but I need to say a little bit about it in order to put the claimant's application in context. A brief history of the granting of formal cautions is set out by Watkins LJ in the case of R v Chief Constable of Kent ex parte L (A Minor) [1993] 1 AllER 763B-C. There he points out that the granting of cautions has never been put on a statutory basis and was only given a degree of formal recognition from 1968. The current procedures relating to cautions are set out in a Home Office circular entitled "The cautioning of offenders" being circular 18/1994. The rules state in terms that "A formal caution is a serious matter." It has a number of potentially significant consequences for the person cautioned. For example, a record of it is kept for a minimum of three years. It means that a person accused of offending behaviour in that period is more likely to be prosecuted for that subsequent offence. He is unable to claim that he is of good character if he goes before a trial court, and the existence of a caution may affect sentence if he is subsequently found guilty. Furthermore, it is normal procedure for a person's fingerprints and photographs to be taken and retained by the police for the period of three years where a caution has been administered, whereas otherwise they would normally be destroyed immediately if he were neither cautioned nor prosecuted.

The relevant rules, as set out in the Home Office circular, are as follows:

Then note 2B:

And note 2D:

It is now well established that a caution may be quashed if it is given in breach of the rules: see, for example, the decision of the court in R v Commissioner of Police for the Metropolis ex parte Thompson [1997] 2 Crim App R 49 and R v Commissioner of Police for the Metropolis ex parte P (1996) 160 JP 367. In the latter case Simon Brown LJ indicated that the granting of a caution may be reviewable where the rules were not complied with, and it was not necessary that there had to be flagrant or deliberate breaches of the guidelines before judicial intervention could occur.

In this case the claimant says that he did not properly admit to the offence in question. I shall first of all set out briefly the account that he gave of his treatment and then indicate why he says the conditions were not met.

The claimant says that he was walking down a street in Liverpool when an unmarked car came towards him. He was walking along the pavement. Two men got out of the car. They were in civilian clothes. One informed the claimant that he was a police officer. He says the other did not. One showed a badge, the other did not. "Apart from that, he didn't tell me anything". The policeman indicated that there had been break-ins in cars at an adjacent car park and that he wanted to search the claimant. The claimant says he asked why and was told to put his hands up. The officers, he says, manhandled him: there was no need for them do that; he was not acting aggressively; it was plain that he was not being violent. He says they threw him to the floor and put handcuffs on him. His head was facing the ground at that time. He was then bundled into a car and taken to a police station. He was a short time later put into a cell.

He says that when he was in the cell the two police officers came in and subjected him to a humiliating strip search, during which he was forced to strip and left without clothes for a couple of minutes. He says they looked between his toes and behind his ears. The officers then left. He says that about 15 to 20 minutes later one of them, Constable Anderson, came back. He did not open the door but he looked through the hatch and told the claimant that there were two ways of dealing with his situation: he could either admit his guilt and accept a caution or he could go to court, in which case he would get a criminal record. The claimant says that he felt threatened: he had never been in that situation before because he had never had any problems with the police. In the circumstances he accepted the caution. He felt that he was being manoeuvred into a situation and he just wanted to get away from the police station. He did not believe that if he went to court he could successfully defend himself, because it would be his word against the police word.

Subsequently he made a complaint to the police and has initiated these proceedings.

The account given by the two police officers, Constable Anderson and Constable Perigo, is rather different. They say that when they were driving down West Derby Street, a street in Liverpool, the claimant was looking suspicious. He was walking upon a bank overlooking the car park and staring intently at the cars. Essentially what they say is that when they approached the claimant they did show their identity cards -- Constable Anderson said he had his in his hand, but Constable Perigo showed his -- and that they both indicated that they were police officers. They say that the claimant appeared to be nervous and agitated; he was fidgeting with his hands in his pockets; he suddenly became very aggressive and was alleging that he was being picked on because he was black, and he was swearing at them in a very unpleasant manner. They say that the claimant then pushed Constable Perigo on his shoulders with two hands, with the palms of his hands. They took this to be threatening behaviour and took steps to restrain him. Thereafter the evidence that they give is consistent broadly with what the claimant says about their pinning him to the ground and putting handcuffs on him and then taking him into the police station.

They say, however, that once in the police station they did not go to the cell once he had been placed in the cell and they did not strip search him at all. Constable Anderson denies that he went to the cell or spoke to the claimant in the way in which I have indicated, giving him the option of either accepting a caution or having to face a full trial.

I also heard evidence from the custody sergeant in this case, Sergeant Murphy. He could recall the claimant coming into the police station. He remembered that he was of a very calm demeanour, especially for such a large man who had apparently been aggressive to two police officers earlier. He said before me that he could recall the claimant sitting down when he administered the caution to him, but he could not actually remember precisely what he said to him. He did, however, indicate that he was sure he would simply have dealt with Mr Aru in exactly the same way as he would with anyone else in those circumstances, and he set out the procedures with which he would comply when administering the caution. It is not disputed that if he complied with those procedures, then as far as his conduct was concerned, it was perfectly proper.

I should also add that there are documents in the bundle before me, in particular the custody record, that shows that the claimant has signed a form in various places, indicating, for example, that he accepted that he was given an opportunity to speak to a solicitor and rejected that; and that later he did consent to the taking of fingerprints and a photograph and DNA samples, and the document that he signed spells out what will happen to those fingerprints and photographs and DNA samples once they have been taken from him.

He has also signed a document which is the formal caution itself. It is pertinent to note that that document sets out what the consequences of a caution may be and states in terms that in order to accept the caution you must fully admit the offence. At two places this document is signed. In relation to one the document says this: "I choose to fully admit the offence and I accept the caution freely", and in another it says:

The claimant submits that there has been a breach of the rules here, arising in this way. Although accepting, as I understand it, that he was dealt with properly by Sergeant Murphy, the custody sergeant, he says that nonetheless the caution is not valid and ought to be quashed because the only reason that he gave his consent to it was that he had been treated in this humiliating and unacceptable manner by the two police officers, and he had not admitted the offence because he genuinely felt that he had committed it. Mr de Bono, for the defendant, accepts that if the conduct of the officers was as is alleged by the claimant, then indeed it would be right for the caution to be quashed. That is why everything turns on whether the officers did behave as is alleged.

It is common ground that the onus is of course on the claimant to satisfy me that he was treated in the way in which he alleges he was. It is also common ground that the nature of the allegations are serious, in the sense that they suggest that there was deliberate wrongdoing by these police officers, and that that is a factor that must be taken into account when considering the standard of proof in a case of this kind.

In approaching this evidence there are certain conclusions which I think I can reach with some confidence. Firstly, I accept the evidence of the custody sergeant, Sergeant Murphy. I am satisfied that in all likelihood he would have complied with the procedures relating to the giving of cautions, and that he would have explained, as he said he always did, what the implications of the caution were. I am also satisfied that he would have gained an admission from the claimant that he had committed the offence and that that would have been obtained before he administered the caution. I found him a straightforward witness. Furthermore, that is all supported by the relevant documentation to which I have referred.

Initially, it is right to say, the claimant thought that he had not signed anything at the police station, and he did not think that Sergeant Murphy had read out to him what the consequences of receiving a caution were. He doubted whether the signatures were his, at one stage, but realistically he accepts now that he must have signed these forms, though he says that he cannot recollect having done so. It is not seriously suggested (and could not seriously be suggested now) that these signatures are a forgery, and I have no doubt that so far as the conduct of Sergeant Murphy was concerned, he behaved perfectly properly. He had information which on the face of it suggested that an offence had been committed, he had an admission from the claimant relating to that, and he administered the caution. He gave a number of reasons for doing that, including the fact that the claimant was well-behaved in the police station and that he had no previous record.

But, as I have indicated, that is not the end of the matter because, even though the procedures were on their face properly complied with, the question still arises as to whether the claimant was led to admit this offence contrary to his true belief because of improper behaviour by the two officers.

The claimant relies upon certain matters which he says indicate that these two officers behaved improperly. In particular he focuses upon two features of the documentation that these officers filled in after the arrest of the claimant. They both filled out their notebooks but they did not fill out the notebooks in relation to this incident at the time when the incident occurred. It is common ground that that was some time around 5.20 -- the precise time is not clear -- and that they got back to the relevant police station at 5.40. Constable Perigo said that they then went back out on duty about an hour later. But the incident was not recorded in Constable Perigo's notebook until 8.30 in the evening. He noted in fact that it was a late entry and noted the offence as having occurred at 5.20. In the case of Constable Anderson there is no time recorded at which he noted this matter in his notebook. He says that in fact he did not have his notebook with him at the time and he entered it much later, having borrowed the notebook of Constable Perigo to remind himself of the earlier incident. That is not good practice, as Mr de Bono recognises.

Mr Thomas, for the claimant, submits that it is quite telling that neither of these officers completed their notebooks at the relevant time. He says that they were in the police station for the best part of an hour, there was plenty of opportunity to fill out the notebooks, and he suggests that one reason they did not do so was because they were in the cell with the claimant.

The second document which was relied upon is a document called form MG5, a case summary or case report. That sets out an account of the arrest and the circumstances in which it took place. The final sentence of that report in this case is as follows: "Later the same day the defendant was cautioned for the offence." Constable Perigo accepted that that final sentence would have been written at the time when the case summary was put together. That was put together, on the evidence of both officers, before they went back out on police duty after having taken the claimant to the police station. That would mean that it would be before, at any event, seven o'clock. According to the custody record, it was some time after that that the claimant admitted the offence and was cautioned. So, says Mr Thomas, it is plain in the circumstances that the officers could only have known that he was going to be cautioned because they had effectively given him no option. They, or more accurately Constable Anderson, had told him that he could either accept the caution or he would be prosecuted.

Mr Thomas makes some additional observations. He submits it would be unlikely that the claimant would have been aggressive and hostile towards the police on the street, and yet be so calm when he got back to the police station. He submits also that there would have been plenty of opportunity for the police officers to go to the cell and carry out a strip search.

Mr de Bono, for the defendant, submits that it simply is not appropriate in the circumstances of this case to infer that the officers have acted in the way alleged. He made a number of submissions about how I should approach the evidence in this case. As to the final sentence on the MG5 to which I have referred, he says that the likelihood always was in these circumstances, so far as the officers understood it, that the claimant would be cautioned for the admitted offence. That is because they considered that the claimant clearly had acted in breach of section 5, but in view of his calm behaviour now and the fact that he was a person who had no prior record, the result would in all probability be a caution. True it is that they put the statement as though he had been cautioned, rather than that they understood that he would be cautioned; but that, according to their evidence, is because they would set out what they anticipated would happen. If they proved to be wrong, then they could always amend the record, but they did not expect in those circumstances anything but a caution. He says that there is nothing very sinister in this because they did not have to put the sentence in at all.

Secondly -- and I think this does have some force -- it was clear from the documentation that I have that as well as filling out the case summary or case report, these officers filled out other documentation on computer which they have to deal with when they arrest somebody in these circumstances. They completed a document MG4 which indicates that they had completed forms which would be necessary for either the preferring of a charge or the giving of a caution. Why, says Mr de Bono, would the officers have completed both those possibilities, it being a decision of the custody sergeant which to invoke, if they had known that he was going to be given a caution and that the possibility of a charge was not a realistic one?

Thirdly, Mr de Bono asks why would the officers have had any reason to pick on this defendant. It was not as if he had injured a colleague or done something adverse to them which would specifically have led them act in this way.

As to the strip search, he says that the evidence demonstrates that it would not be straightforward for them to have carried out that without it being seen by the custody sergeant. Sergeant Murphy indicated that he has the corridor on which the cells are situated in his sight and he did not see these officers go to the cell. That is plainly not conclusive because he accepted that they could have gone without his knowing of it, but he did say he did not authorise it. It is possible that they could have got keys either from the desk where he was sitting, if he were absent for a moment or two, or from one of the two assistants who were assisting Sergeant Murphy on that day. But nonetheless, the fact that Sergeant Murphy did not see it is some evidence, submits Mr de Bono, that it did not occur.

He also relies upon the fact that Mr Aru's own evidence has plainly been at fault in certain ways. I have indicated that that is so. I have no doubt, as I have already indicated, that he was properly dealt with by Sergeant Murphy and did make the admissions, in accordance with the rules, before Sergeant Murphy.

Finally, Mr de Bono relies also upon the complaint that was lodged by the claimant. That does not refer to the strip search at all. That is not, however, a document which is signed by the claimant. It would have been completed by an officer to whom he was making the complaint and he says that he did mention the strip search. But it is true to say that it is not recorded in the initial report in the complaint against these police officers.

It is against that background that I have to decide whether the strip search and the visit from Constable Anderson took place. In my judgment, the claimant has not satisfied me to the relevant standard of proof that it did take place. It seems to me that the failure to make a recording at the relevant time of the incident in the notebooks is a matter of bad practice but I accept that, as Mr de Bono submits, even on the claimant's own evidence these police officers would have been in the cells only for a few minutes. They could easily have completed these notebooks and visited the cells, and I do not think that one can infer that the reason they did not make up the notebooks was because they were occupied with the claimant. That is simply not his own evidence on this matter. It does seem to me, in addition, that the claimant might have been expected to say something to Sergeant Murphy about these matters at the time when the caution was being administered. By then the two police officers had left the police station and yet he does not appear to have given any indication to Sergeant Murphy that anything was amiss at that stage.

I have been more concerned about the MG5 and quite why the last sentence is framed in the way in which it is. It does seem to me an unsatisfactory practice, if indeed it is the practice, for police to anticipate what might be done and to represent it in an official document as though it has been done. That is so even if the document may later be changed. But, in any event, as I have indicated, it would be strange, I think, if the police were in those circumstances to have completed both the caution and the charge forms as though both were still possible options. I also have to give weight, inevitably, to the fact that, as I have said, all these documents have been completed and signed by the claimant without any qualification or any indication at the time that they were inaccurate and that he was being subjected to improper pressure which caused him to accept the caution.

I should perhaps add finally that I do not have the impression that the claimant was deliberately trying to mislead me in the witness box. It is difficult to know precisely the basis of his allegations, but it perhaps suffices for me to say that I am satisfied that he 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 probabilities, act in the way which he indicated. Without his being able to establish that, it is common ground that this application must fail.

MR DE BONO: My Lord, I understand the claimant to be legally aided. I would ask for an order that the claimant do pay the defendant's costs, but obviously subject to the usual order. As to what the wording should be, perhaps if we could come to that in a moment.

There is one other matter which is relevant which I have warned my learned friend about, and that is this. The claimant has intimated another claim -- civil action -- against those defendants, arising out of a different matter only a few weeks after this incident. Those proceedings have not yet been launched, but a letter before action has been written. I would ask the court to make an order allowing for any costs that the claimant owes to the defendant to be recovered out of any damages or costs ordered to be paid by the defendant to the claimant in that action, if and when it comes. Because the difficulty that those who instruct me have is that they frequently face claims -- often more than one -- from one claimant who can, without such an order, keep making a claim because each time there is just a legal aid order, which means that no costs are recovered. If the order which I suggest is made, then it means that the costs which are owed by the claimant to the defendant in these proceedings could be recovered by the defendant --

MR JUSTICE ELIAS: I see the effect of it. Have I got the authority to make an order of that kind? I do not know, I have never been asked to do it before and I have not given my mind to it.

MR DE BONO: I cannot find a specific authority, because the situation is probably not very common, but in my submission it is a logical extension of two principles: first, that you can make any order about costs that is just; and secondly, that even if you did not refer to the other action, the effect would be the same in terms of possibilities, because at some stage, following a successful civil action by the claimant against the defendant in respect of this other incident, he would have a pot of money which the defendants could then go to the court for this action, and say "He now has the means to pay our costs in that action."

MR JUSTICE ELIAS: I understand that, but it seems to me there could be difficulties about that kind of principle. Take a case where you have an insolvent claimant. There may be various debts that he owes, and effectively you are giving yourself priority against all others.

MR DE BONO: Yes.

MR JUSTICE ELIAS: I am not convinced that you can properly do that. I am prepared to do it this way. I will make the usual costs order with an opportunity for you, if you think you can try and persuade me that that is right -- notwithstanding that it would give you priority in any subsequent liquidation or something of that kind -- it really preserves that pool for you. I have some doubts whether that can be done. If you want to make legal representations to me in writing about that -- obviously, in terms of Mr Thomas, then if he wishes to comment on them, he can do so -- I am prepared to consider them if they are done within the next 14 days. So I make this order that I make now, on costs, an order which will come into effect, say in 21 days, unless I have indicated to the contrary. Will that be acceptable?

MR DE BONO: Yes, I would be grateful. Thank you.

MR JUSTICE ELIAS: Then you can think about it a bit more. But at the moment I have to say that I am not sure that it would be a proper order for me to make.

MR DE BONO: I am certainly not in a position to develop the argument.

MR THOMAS: My Lord, unfortunately I am not in a position to --

MR JUSTICE ELIAS: -- to rebut.

MR THOMAS: (a) my learned friend only mentioned it to me this morning and (b) the claim that my learned friend has intimated I know nothing about because -- it is not that I am not instructed in it, I understand it is with possibly a different firm of solicitors.

MR JUSTICE ELIAS: Well, that again could be a problem too.

MR THOMAS: Exactly, and I think the other firm of solicitors may wish to make representations as well.

MR JUSTICE ELIAS: I think you may be better off with just a standard costs order, but I leave it open so you have the opportunity.

MR THOMAS: So it is the standard costs order.

MR JUSTICE ELIAS: Well, I have indicated that I will leave it open for 21 days.

MR THOMAS: So be it.

MR JUSTICE ELIAS: It will bind in 21 days unless I change it. But I am just indicating that I think it is a bit of an optimistic run.