R(R) v Durham Constabulary

The House considered whether the statutory scheme in sections 65 and 66 of the Crime and Disorder Act 1998 (as amended) for reprimanding or warning children and young persons engaged rights under article 6 of the European Convention on Human Rights. The court held that the decision to give a reprimand or warning, following a prosecutorily effective decision not to prosecute, did not involve the determination of a criminal charge for the purposes of article 6 and therefore required no waiver by informed consent to a trial. The court also treated the measures attached to warnings (recording on the Police National Computer, possible registration under the Sex Offenders Act 1997 and referral to youth offending teams) as preventive, welfare or rehabilitative rather than punitive in character, and therefore not within the criminal limb of article 6. Relevant statutory provisions considered included sections 65 and 66 of the Crime and Disorder Act 1998 and related amendments and guidance.

The appellant challenged the lawfulness under the European Convention on Human Rights of a 'final warning' given to him under sections 65 and 66 of the Crime and Disorder Act 1998. The warning had been issued after the police concluded there was sufficient evidence and the young person admitted the offending, but a decision was taken that it would not be in the public interest to prosecute. The claimant sought judicial review on the ground that the procedure amounted to a determination of a criminal charge by the police in breach of article 6 because no informed consent or waiver of trial rights had been obtained.

Procedural history: The Divisional Court (Queen's Bench Division) quashed the warning as incompatible with article 6 ([2002] EWHC 2486 (Admin); reported [2003] 1 WLR 897). The Chief Constable and the Secretary of State appealed to the House of Lords.

Issues before the House:

• Whether the decision to issue a reprimand or final warning under sections 65 and 66 involved the determination of a criminal charge within the autonomous Convention meaning of article 6.
• If article 6 were engaged, whether the warning procedure was unlawful in the absence of the young person's informed consent.
• Ancillary questions on the character of consequences attached to warnings (recording, registration obligations, referral to youth offending teams) and their compatibility with Convention rights (articles 6 and 8) and with relevant international instruments concerning children.

Court's reasoning: The House emphasised that article 6 protects the process of adjudication leading to possible punishment; where a firm decision is taken not to prosecute and no possibility of condemnation or punishment remains, the 'criminal charge' ceases to exist for the purposes of article 6. The court analysed Strasbourg and domestic authority distinguishing penal/adjudicative processes from measures of a preventive, rehabilitative or welfare character. It concluded that reprimands and warnings, and their attendant consequences as legislated and guided, are primarily preventive/rehabilitative and not penal in character; therefore they did not amount to a determination of a criminal charge requiring the safeguards of article 6. The House observed the international and welfare context of youth diversion, acknowledged serious concerns about consequences for children and the desirability of informed processes, but held that on the Convention issues raised the warning scheme was compatible with article 6. The appeals were allowed and the Divisional Court's order quashing the warning was set aside.

Appeal allowed. The House held that the warning/reprimand scheme under sections 65 and 66 of the Crime and Disorder Act 1998 did not involve the determination of a criminal charge for the purposes of article 6 ECHR once a decision not to prosecute had been taken; the measures were preventive or rehabilitative rather than punitive, so article 6 did not require an informed consent waiver of trial rights. Consequently the Divisional Court's quashing of the warning was overturned.

Judicial review in the Queen's Bench Divisional Court: R (FC) v Durham Constabulary [2002] EWHC 2486 (Admin); [2003] 1 WLR 897 (order quashing warning). Appeal to the House of Lords resulting in this judgment: [2005] UKHL 21.