Judgments - Regina v. Durham Constabulary and another (Appellants) ex parte R (FC) (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice) Regina v. Durham Constabulary (Appellants) and another ex parte R (FC) (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice) (Conjoined Appeals)

A statutory reprimand or final warning may be imposed on a young offender without the consent of the offender or an appropriate adult. The scheme requires a reliable admission, but Parliament deliberately omitted the former requirement of consent to the disposal.

A criminal charge ceases for the purposes of article 6 when a firm decision rules out prosecution. A subsequent process does not determine a criminal charge where it involves no adjudication of guilt and can lead only to preventive, rehabilitative or welfare measures rather than punishment. The warning scheme under sections 65 and 66 of the Crime and Disorder Act 1998 therefore did not engage article 6.

A 14-year-old admitted conduct amounting to indecent assault during a police interview. The police decided that prosecution was not in the public interest and administered a final warning under sections 65 and 66 of the Crime and Disorder Act 1998. Neither the child nor his stepfather was asked to consent. They were not initially told that the warning required registration under the sex-offender legislation.

The Queen's Bench Divisional Court, in [2002] EWHC 2486 (Admin), held that the warning procedure had determined a criminal charge without a valid waiver of the child's article 6 rights. It quashed the warning. In the conjoined appeals, the Chief Constable and the Secretary of State challenged that conclusion.

The central questions were whether the criminal charge survived the decision not to prosecute, whether the warning determined that charge, and whether informed consent was required.

1. Appeals allowed unanimously. Lord Bingham delivered the leading speech. Lord Rodger and Lord Brown agreed with his reasons. Baroness Hale reached the same result with considerable misgivings, and Lord Steyn agreed with her while assenting to the order. The order of the Divisional Court was quashed.

2. Per Lord Bingham, sections 65 and 66 of the Crime and Disorder Act 1998 deliberately dispensed with the consent formerly required for a juvenile caution. Parliament specified the conditions for a reprimand or warning but omitted consent, despite its established place in the former scheme. The statutory guidance likewise treated the disposal as a police decision once the offence had been admitted.

3. Lord Bingham reserved his position on whether the respondent had ever faced a criminal charge. The appellants maintained their concession that he had, so the House proceeded on that assumption. A criminal charge could not endure after a firm decision had eliminated any possibility of trial, condemnation or punishment.

4. Per Lord Bingham, the police officer did not adjudicate upon guilt. The officer assessed the sufficiency of the evidence, the admission, the public interest in prosecution and the appropriate diversionary disposal. A determination of a criminal charge must expose the person to possible punishment. Measures which can culminate only in prevention, rehabilitation, treatment or welfare ordinarily fall outside the criminal limb of article 6.

5. The warning and its consequences were preventive and rehabilitative. Recording the warning and the restricted availability of that information did not amount to a public pronouncement of guilt. Registration, referral to a youth offending team and the possible effect on a later sentence did not convert the procedure into a criminal trial or punishment. Article 6 was therefore not engaged, and no waiver was required.

6. Baroness Hale agreed that the decisive voluntary act was the child's reliable admission, not consent to the police disposal. Consent was also important before participation in a rehabilitation programme. She expressed grave concern about the scheme's rigidity, its cumulative consequences and its consistency with international children's-rights standards, but concluded that it remained compatible with the European Convention.

7. Lord Bingham added, obiter, that any interference with private life was lawful, pursued legitimate crime-prevention aims and was necessary. Differential treatment of children and adults was also readily justified by children's vulnerability, immaturity and greater responsiveness to education and formative intervention.

1. House of Lords: By [2005] UKHL 21, allowed the conjoined appeals unanimously and quashed the Divisional Court's order.
2. Queen's Bench Divisional Court: In [2002] EWHC 2486 (Admin), reported at [2003] 1 WLR 897, held that the warning was incompatible with article 6 in the absence of an informed waiver and quashed the decision to warn.