Stratton, R (on the application of) v Thames Valley Police

The claimant challenges a caution administered to her on behalf of the defendant (the Chief Constable) on 29 January 2008 on the basis that she had not admitted the commission of an offence and that she was not warned of the adverse consequences to her. She brings this challenge late because it was not until December 2010 that she discovered the serious adverse consequences to her in relation to her employment of the caution. She then spent several months thereafter attempting to get the caution withdrawn in correspondence with the defendant Police.

It was common ground that the policy of the Chief Constable in relation to the decision to issue a caution required that the offender had to admit the offence, that the evidential and public interest test for prosecution had to be met and the consequences of acceptance of the caution had to be made clear so that the offender gave informed consent to the acceptance of a caution.

No issue arose as to the evidential and public interest tests as set out recently in this court in Caetano v Commissioner of Police for the Metropolis [2013] EWHC (Admin) 375; Mr Biggs accepted that in all the circumstances there was evidence on the account of the complainant on which a prosecution could have been brought and that the public interest test would have been met.

On the night of 12/13 January 2008 when the claimant was just over 23 years old, she was at a pub called The Litten Tree, Aylesbury within the ThamesValleyPolice area. An incident then occurred between the claimant and another young woman called Chloe Cotton.

Some days thereafter Chloe Cotton made a complaint to the police. A statement was then taken from her on 18 January 2008 in which Chloe Cotton stated that after some words between them earlier in the evening the claimant poured a drink over her as she came up the stairs. She retaliated by throwing what was in her glass at the claimant; it was about two inches of liquid. That hit the claimant on her chest. She then saw something hitting the top of her head and a clear glass drinks bottle fall to the ground. As a result she had a large lump on her head, although it had gone by the time she made her statement.

Some time thereafter the police telephoned the claimant and asked her to go to the police station as someone had accused her of an assault. On 29 January 2008 she went to Aylesbury Police Station. The custody record shows that she arrived at the police station at 20:00 and was arrested by PC Wilson on the grounds she had committed assault occasioning actual bodily harm and criminal damage. Her detention was authorised at 20:38 on the basis that she was being detained to obtain evidence by questioning and it was necessary to preserve evidence by questioning.

At 21:04 she was interviewed by PC Lilley under caution. The tape of that interview is no longer available but there was a statement from PC Lilley which recorded that the claimant said that Chloe Cotton had thrown a drink over her for no apparent reason and that she, “in an involuntary reckless action threw a bottle in anger towards Chloe Cotton due to the fact that she had a drink thrown over her”. The statement also records, “that she was not necessarily acting in self defence and was not in fear for her wellbeing.” The statement goes on to say:

“She admitted that her actions would constitute a common assault after having the legislation points relayed to her.”

It appears that that statement was made the same day, 29 January 2008, but after the caution.

At 22:00 she was, according to the record of caution, cautioned for the offence of common assault. The form records her age and the fact that she was a nanny. The following was signed by the claimant:

“I acknowledge I admit the offence(s) and agree to be cautioned. I understand that if, in the future, I should appear before a court and am found guilty of another offence, then details of this caution may be given to the court.”

The caution was administered by Police Sergeant Digman.

A few days later, on 2 February 2008, a statement was taken from the claimant by PC Lilley. It was a manuscript statement written in PC Lilley’s hand. It set out her account of the incident. In setting out the background, her statement referred to Chloe Cotton throwing the entire contents of her glass over her. The statement then continued:

“She then quickly walked away leaving me completely drenched with the liquid and very shocked and upset at what had just happened. In reaction to what had happened I threw my bottle that I had in my possession in a reckless manner and may have struck Cotton.”

That statement was then used for the purpose of interviewing Chloe Cotton and administering a caution to her.

As we have set out, it was common ground that a caution could not be administered if she had not admitted the commission of the offence of common assault. It was her case and her evidence that she had not admitted the commission of the offence. The Chief Constable relied on the evidence of PC Lilley and her signature of the form.

The claimant challenged the account recorded by PC Lilley in the statement that he took on 2 February 2008 and his summary of what he said she had admitted in interview (as set out by us at paragraph 7 above). She asked the court to hear evidence from her. Statements were served from PC Lilley and the claimant; we permitted cross-examination of her and cross-examination of PC Lilley. In her statement she said that on arrival she was asked if she wanted a solicitor. She told the police that she had done nothing wrong and did not want to involve her parents which would have happened if she had asked for a solicitor. Her account was that she denied Chloe Cotton’s allegation that she had hit her over the head. She said that she discussed how the bottle had left her hand; she then told the police that she dropped it but the policeman said that “threw” described it better. She had told him she had not thrown it or intended to hurt Chloe. She was clear she had not said anything about acting in a “reckless manner”.

After the interview she asked the policeman if the arrest would affect her job as a nanny, as she was aware of the Criminal Records Bureau database. She said he assured her that it would not have any effect on that. He then asked her if she would make a complaint against Chloe Cotton; eventually she agreed to make a statement. After she had left the interview room an officer asked her to sign a form and then she would be free to go. She thought it was a sign-out form. The officer did not explain what it was; she signed and left.

PC Lilley, unsurprisingly, had only the faintest recollection about the case. That recollection related to the claimant being keen that Chloe Cotton should not “get away” with what she had done, although he accepted that this comment may have been initiated by a question from him as to whether the claimant wanted to make a complaint about Chloe Cotton. Apart from that, he had little recollection of what had happened and relied on the contemporary documents to which we have referred. When cross-examined, he did little more than deny the account of the claimant and adhered to what he had said in the contemporaneous documents.

It is very difficult for us, many years after the event, to determine precisely what happened. We have little doubt that the claimant in her evidence to us was honestly trying to do her best to recall what had happened.

However, over the intervening years she had become convinced that she had not admitted anything that amounted to a common assault; in particular she had never said that the bottle was thrown recklessly. We have little doubt that the word “recklessly” and some of the expressions set out in her statement and PC Lilley’s contemporary statement were words deliberately chosen by PC Lilley to describe what she said in a way familiar to a policeman. Nonetheless we cannot, at this stage in time, find that what was set out in the statement made on 2 February 2008 and signed by her was anything other than the gist of the account she had given, deliberately put by the police officer into more formal language. On that basis, therefore, her statement made to the police officer on 2 February 2008 was the statement in which she in effect admitted recklessly throwing a bottle in a public house, though we are satisfied they were not her precise words. We therefore cannot accept the submission made on her behalf that she had never admitted matters which constituted the offence of common assault.

The factual background

As we have set out, it was common ground that a duty lies on the police to explain the nature of the consequences to the offender before a caution is administered so that the consent given to a caution is an informed consent.

We have set out at paragraph 8, the fact that a caution was administered by Police Sgt Digman and the form given to the claimant. The form only referred to one consequence of the acceptance of a caution – it being used in court if she committed another offence. As we have set out in paragraph 12, her evidence was that in answer to her specific request she was told that it would have no effect on her employment. She had signed the form believing it was a form that was necessary for her to leave the police station.

The Chief Constable relied on the evidence of Police Sgt Digman. He could not recall the circumstances in which the caution was administered to her. His evidence was to his general practice. The evidence of PC Lilley was that he would not have given her any assurances about the future impact of the caution on her employment as a nanny.

In assessing the probability of what was explained to the claimant and the importance of the explanation, it is helpful first to set out briefly the way in which cautioning developed and the responsibility of the Home Office.

The development of the power to caution and of Home Office Circulars

In R v Commissioner of the Police of the Metropolis ex p Thompson [1997] 1 WLR 1519, Schiemann LJ observed:

“There is no statutory basis for the formal caution. As is well known, the phrase “formal caution” in this context is used to describe a discretionary procedure adopted by the police.”

The description of the caution as a “formal caution” was in use till 2005 when for reasons we shall explain it was renamed a “simple caution”.

It appears that the police began to use cautions much earlier than 1929 – the date suggested by Tasker Watkins LJ in R v Chief Constable of Kent ex p L (1991) 93 Cr App R 416. The practice may have begun early in the nineteenth century (see D Steer: Police Cautions: a study in the exercise of police discretion (1970)). It certainly was evident by 1853 when an order was issued within the Metropolitan Police:

“The Superintendents of Divisions in which lotteries for the distribution of game, wine, spirits or other articles are advertised by placards, bills or other notices, are to caution the persons connected with those schemes that they are illegal, and if persisted in will be prosecuted”

By the 1920s there were schemes for giving written warnings for motoring offences and in 1928, the Home Office was publishing statistics for cautions and by 1931 giving advice on the wording of cautions. In 1959, s.2(1) of the Street Offences Act made provision for removing from criminal records cautions given to women in respect of conduct in a street, unless the court was satisfied that the woman was not loitering for the purposes of prostitution.

There was a parallel development of cautioning young persons. Although such a scheme was established in Glasgow in 1905, it was not until later in the twentieth century that such schemes were adopted in England – see for example the observations of Tasker Watkins LJ in ex p L as to the favouring of such a scheme by Viscount Trenchard in 1932. In any event, by the 1960s, as the Home Office Research Paper, Police Cautioning in England and Wales (1976) makes clear there was strong support for the idea that young persons should be diverted away from the criminal justice system. In 1969, s.5(2) of the Children and Young Persons Act 1969 recognised a caution (along with dealing with the matter through a parent or teacher) as a matter to be considered before prosecution. The Metropolitan Police reflected this in the establishment in 1969 of a Juvenile Bureau, which was able to administer cautions in place of prosecutions in appropriate cases. The development of juvenile cautions is briefly referred to in the judgment of Lord Bingham in R (R) v Durham Constabulary [2005] 1 WLR 1184 at paragraphs 2 and 3.

The growth in the use of the cautions led the 1962 Royal Commission on the Police to note at paragraphs 365 and 378-9, that there were concerns about the uneven enforcement of the laws and the discretion to prosecute vested in Chief Constables. Similar concerns were reflected in the evidence of the Home Office in 1979 to the Royal Commission on Criminal Procedure.

In 1978, the Home Office issued the first circular to bring about uniformity of procedure and consistency in the use of cautions, then referred to as “formal cautions”. This was in relation to juveniles as cautions were relied upon by the police in deciding on a subsequent occasion whether to prosecute and by a court in deciding on sentence. In 1985, as an alternative to the Royal Commission’s recommendation of placing cautioning on a statutory basis, the Home Office issued its first general guidance on cautioning for adults (HOC 14/1985). The guidance was short and clear; it required that the significance of the caution had to be explained – a record would be kept and used if the person offended again for the purposes of deciding on whether to prosecute or whether to cite in court. It recommended keeping the record of cautions for 3 years.

This was amended over the years; for example the 1990 circular suggested cautions be administered by a person of the rank of Inspector or above. In successive circulars, restrictions on the retention of records were modified and the rank of officer who could administer cautions was relaxed.

The recording of cautions and the criminal records certificate system

Before referring to the Home Office circular that was in force at the time the claimant was cautioned, it is necessary to refer to changes in the way cautions were recorded and the supply of information contained in the records to others.

It has always been the position that at common law information about a person held by the police should not be disclosed save for the purpose of and to the extent necessary for performance of its public duty or enabling some other public body to perform its public duty: see the judgments of Lord Bingham CJ and Lord Woolf MR in R v Chief Constable of North Wales ex p Thorpe [1999] QB 396. In a circular issued by the Home Office in July (45/1986) the Home Office gave guidance on the disclosure of convictions; this included guidance in relation to disclosure to public bodies with responsibilities for the vulnerable. The circular made clear that cautions should be disclosed in respect of teachers and those working with children.

It appears from the report of the Bichard Inquiry (2004) that from November 1995, cautions were recorded on the Police National Computer. The retention of such records was governed by the Association of Chief Officers of Police (ACPO)’s General Rules for Criminal Record Weeding on Police Computer Systems and Code of Practice on Data Protection issued in 1995. This recommended that cautions should be retained for 5 years, though each police force had its own guidelines.

The significance of the recording of cautions on the Police National Computer was increased by the establishment of the Criminal Records Certificate System under Part V of the Police Act 1997. The Act made provision for giving prospective employers information about the criminal records of those who might have unsupervised contact with children; the system for standard and enhanced disclosure is described by Lord Hope in R(L) v Commissioner of Police of the Metropolis [2010] 1 AC 410; [2009] UKSC 3.

The Bichard Report in 2004 recommended a Code of Practice be drawn up by the Home Office covering record creation, review, retention, deletion and information sharing of such information. That was issued in July 2005. In 2006, ACPO issued new guidelines for the retention of records on the Police National Computer which replaced the 1995 guidelines; this provided for the retention of records until the subject reached 100 years of age, but with a process known as “stepping down” under which types of records would after a given period only be disclosed for police purposes or for enhanced disclosure. Cautions were stepped down after 5 or 10 years depending on the severity of the offence.

The result of these changes was that the purposes for which a caution could be used had extended a long way beyond using it simply for any subsequent occasion on which the individual might offend again.

The Home Office guidance in 2005

After these significant changes and in the light of the introduction of statutory “Conditional Cautions” under Part 3 of the Criminal Justice Act 2003, the Home Office issued in June 2005 a general circular (HOC 30/2005) in relation to cautions. This was the circular in force at the time the claimant was cautioned. The circular renamed formal cautions as “simple cautions” to distinguish these from the new Conditional Cautions.

The circular made clear that the full implications of a caution had to be explained to the suspect so that the suspect gave informed consent to the caution; the suspect should be made aware that the crime would be shown as detected against their name. Officers must avoid any suggestion that accepting a caution was an “easy option”. The circular stressed that the suspect should not be pressed to accept a caution; time should be allowed for him or her to consider the matter and if need be for independent advice to be taken. The circular advised that the offender should sign a form accepting the terms of the caution; the form should include:

“information on the consequences of accepting a caution, as below”

The section referred to “as below” was:

“Consequences of receiving a Simple Caution

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 they are dealt with, should they come to the notice of the police again. Simple cautions given for recordable offences are entered on the Police National Computer, where they are held in line with ACPO General Rules for Criminal Record Weeding on Police Systems… The fact of the 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. Therefore the significance of the admission of guilt in agreeing to accept a Simple Cautions must be fully and clearly explained to the offender.”

The Circular went on to point out that Simple Cautions were not (at that time) covered under the Rehabilitation of Offenders Act 1974 and therefore never became spent. A person could not therefore conceal a Simple Caution if asked by a prospective employer.

Although the Circular directed that “the offender should sign a form accepting the terms of the caution and should be given a copy of a caution acceptance pro-forma to take away”, no standard form for recording the delivery of the caution was attached.

Advice on revision to the guidance in 2007

In April 2007, ACPO issued a note to all its members stating that the Home Office was revising its circular to include a form to be given to an offender that set out clearly the implications for receiving a caution. In the meantime, the Office of Criminal Justice Reform had asked ACPO to remind all the forces of the implications of a simple caution and to ensure that the information was promulgated within each police force.

In addition to re-iterating what was set out in Home Office Circular 30/2005, it pointed out that a caution could be cited on a Standard or Enhanced Disclosure issued by the Criminal Records Bureau and thus could be made known to a prospective employer. It pointed out that where the person was in a “notifiable” occupation, the caution would be disclosed to the employer. It also referred to The Education (Prohibition from Teaching or Working with Children) Regulations 2003 (S.I. 2003/1184) as amended by the Education (Prohibition from Teaching or Working with Children) (Amendment) Regulations 2007 (S.I. 2007/195) coming into force on 28 February 2007 under which a person who was convicted of an offence specified in the regulations would be disqualified from working with children. The offence of common assault was not so specified.

Sometime in 2007, the Office of Criminal Justice Reform issued a booklet entitled “Out of Court disposals for adults: A guide to alternatives to prosecution”. It spelt out some of the matters to which we have referred in the preceding paragraph, but did not refer to the specific implications for those working with children.

Home Office guidance issued in 2008

In the Circular issued by the Home Office in 2008, the Home Office made clear that informed consent could only be given:

“when the suspect had received in writing an explanation of the implications of accepting a simple caution before he/she agrees to accept a simple caution.”

It made clear that a simple caution should be deemed to be administered when the offender had signed a form making clear the implications of accepting a simple caution. A new form to be signed by the offender was introduced. It spelt out in considerable detail the consequences at paragraphs 1- 9, including informing existing employers and prospective employers if a CRB check was needed. It also pointed out that accepting a caution might mean that some countries would not allow visits to that country or permanent residence.

The status of Home Office circulars in relation to the police power to caution

It is clear from the decision in Blackburn v Commissioner of the Police for the Metropolis [1968] 2 QB 118 at 135-6 (Lord Denning MR) and at page 138 (Scarman LJ) that the police do not act under the direction of the Home Office or any other part of the Executive. Thus a Home Office circular is merely guidance; it has no binding effect.

It is therefore the responsibility of each Chief Constable to set out his own policy, though for reasons of consistency, the Chief Constable will wish to take into account the views of the Home Office, particularly if, as in the case of Home Office Guidance on cautions, the guidance is clear and careful. That policy must cover those matters it is common ground are necessary to a proper and lawful exercise of the power to caution, including obtaining the informed consent of the offender by spelling out the consequences. In addition the Chief Constable is responsible for ensuring that there is a system in place for applying his policy, for if there is not, there is always the possibility that there will be a challenge to a particular caution as not being administered in accordance with the policy.

It is clear that by 2007, the consequences of a caution to an individual had become more significant, particularly in respect of anyone who held a post or who might wish to work in occupations where a CRB check would be necessary. The circular from ACPO to which we have referred at paragraphs 35-36 made this clear. It was therefore important that each Chief Constable had to take account of that development in the policies adopted and in the way in which cautions would be administered.

The duty of the Chief Constable

The Chief Constable, in accordance with his constitutional position drafted his own policy for the ThamesValleyPolice which was approved on 31 January 2006. It was this policy that was in force when the claimant was cautioned; it mirrored in substantially the same terms Home Office Circular 30/2005 to which we have referred at paragraphs 32- 34. The ThamesValleyPolice policy had attached as appendix C a form to be used when administering the caution and to be given to the offender. That part of the form to be signed by the officer administering the caution stated:

“When cautioning the offender, I informed him/her that details of the offence(s) may be revealed at any further court proceedings the offender may be involved in.

The part to be signed by the offender stated:

“I fully admit the above offences and acknowledge that I have been cautioned by them and fully understand the caution”

Although, unsurprisingly, the Chief Constable has not been able to find any documentation showing that the policy was made known to the officers in the ThamesValleyPolice, it was believed that the policy was to be publicised either by being made available on the intranet or by being sent to managers within the force. Only one matter is clear. The form used by Sgt Digman contained the wording we have set out at paragraph 8; the only consequence of a caution that it stated was the possibility of it being used in subsequent court proceedings. Although different in form to the standard form of the ThamesValleyPolice set out at paragraph 42, it did not differ in substance.

The police in the Thames Valley were made aware of the ACPO circular in 2007 drawing attention to the need to spell out the consequences of a caution (to which we referred at paragraphs 35-36) by a message posted on the Thames Valley intranet explaining in outline the circular and asking officers to read it. An e-mail was sent to officers in the Thamesvalleypolice force pointing out the publication by the Office of Criminal Justice Reform booklet “Out of Court disposals for adults: A guide to alternatives to prosecution” (to which we referred at paragraph 37). Police Sgt. Digman was not one of those to whom the e-mail was sent. Despite enquiry, the evidence filed on behalf of the Chief Constable did not establish what training had been given to officers in relation to cautioning, though this was now to be a standard part of training.

However, the form in use by the force had not been altered so that it spelt out clearly what the consequences actually were.

The importance of spelling out the consequences and obtaining informed consent

As is clear from our outline of the way cautions have evolved, they were seen as a means of diverting those who had committed a single offence from the courts, reducing the risk of re-offending and of criminalisation; a record would be kept in case the person offended again so that it could be used in deciding whether to prosecute or by the court in sentencing. There is nothing that shows it was used for any other purpose.

However, the system evolved, as we have explained, so that the caution became part of the criminal record of an individual for other purposes; it became very similar to a conviction. In some respects it was more serious than a conviction as (until the insertion of a new Schedule 2 to the Rehabilitation of Offenders Act 1974 by the Criminal Justice and Immigration Act 2008) it never became spent and so remained a part of the person’s criminal record.

There were therefore a number of factors that made the spelling out of the consequences of greater importance.

These effects were then compounded by the evolution of the use of cautions as a part of a person’s criminal record for the purposes of vetting staff (as we have explained).

It is evident from what we have set out at paragraphs 35-37 that by 2007 the Home Office appreciated these issues and therefore the need to amend the procedure for obtaining consent; it did not make its recommendations until its 2008 circular. However, it was the duty of the Chief Constable to keep the policy under review and, if circumstances required, to amend the policy without awaiting detailed guidance from the Home Office. It is clear from the ACPO circular that ACPO considered that Chief Constables had to ensure that members of the force were aware of the importance of spelling out the consequences.

The position in the present case

It is hardly surprising that the recollection of the two police officers does not extend to the caution administered to the claimant. As we have set out in paragraph 14, the claimant was doing her honest best to recall what happened. As she was in employment as a nanny and was aware of the requirements imposed in respect of working with children, we consider that on the balance of probabilities she did inquire whether accepting a caution would affect her employment. At this stage in time, it is not possible to say with any precision what she was told, but we do not find it unsurprising that she considered signing the form was a formality that would enable her to leave the police station. As the form merely pointed out that the caution would be used if she offended again she probably thought no more of it.

The form did not make clear that the consequences to her were much more serious, particularly as she worked with children and she might require a CRB check. On the evidence called by the Chief Constable, we can find nothing in the particular facts of this case that supports the position that these consequences were spelt out to her, let alone spelt out in such a way that she gave her informed consent to the caution. The obvious way to have spelt this out was to have taken the simple step of amending the form or giving detailed written guidance or training as to what had to be done. This was particularly important for persons in the position of the claimant where the long term consequences were so serious.

In our view, the form, far from spelling out the consequences, implied that the only consequence was use in other court proceedings. In circumstances where she was unrepresented and the acceptance of the caution given her occupation were so serious for her, we find, having heard her evidence and having considered all the documentation and other facts that in the particular circumstances of this case she did not give her informed consent to the caution.

It follows that the caution must be quashed.

However, we wish to make clear that the directions given by the Chief Constable as to the way in which cautions are now administered and the form in use should ensure that the consequences of a caution are fully explained and informed consent is given. Provided that when each caution is administered, the offender is carefully taken through the implications now spelt out in the Ministry of Justice’s 2013 guidance entitled “simple Cautions for Adult Offenders” at paragraphs 53-64, he or she signs a form spelling all of this out and that person’s understanding of each of the consequences is appropriately evidenced, a case such as the present should not arise. Furthermore in the light of the judgment of the Court of Appeal in T v the Chief Constable of Greater Manchester Police [2013] EWCA Civ 25; [2013] 1 Cr App R 27 (subject to a current appeal to the Supreme Court), new filtering rules came into effect on 29 May 2013 so that old and minor cautions and convictions no longer appear on certificates.

There is now a further safeguard. As was explained in Blackburn, Chief Constables are accountable to the law and to the law alone. The bringing of proceedings such as this by way of judicial review is one way of ensuring that those operating the system of cautions established by a Chief Constable act in accordance with the law.

Another is the system now being adopted by Magistrates to review in general the way in which cautions are properly administered. The primary purpose of such a general review is to see if cautions are being used for the appropriate offences. However it should extend also to the issues such as whether a simple caution (as opposed to an oral warning) is appropriate in all the circumstances (given the criminalising effects of a caution under current legislation and practice) and whether there are proper procedures in place to ensure that informed consent is given; this last is particularly important to those with educational impairments or those to whom the long term consequences can be so serious. Such a system may well be the more efficacious and cost effective way of ensuring that the use of cautions is in accordance with law and the public interest is protected than proceedings such as this many years after the event.