Wyman, R (on the application of) v The Chief Constable of Hampshire Constaulary

A formal police caution may be administered only where there is clear and reliable evidence of a voluntary admission. The admission must relate to every ingredient of the alleged offence. The court must assess the whole of the suspect’s interview evidence, rather than isolated words. For sexual assault under Sexual Offences Act 2003, this includes the sexual touching, absence of consent and absence of a reasonable belief in consent. Where the suspect has not admitted those matters, the caution is unlawful and may be quashed. The caution should then be expunged from police records, although unchallenged investigation material need not be destroyed.

Rupert Wyman sought judicial review of a formal caution administered by a police sergeant after an alleged sexual assault at a nightclub. He argued that he had not made a clear and reliable admission to the offence and that the caution misstated the circumstances. The defendant maintained that the interview contained admissions to the elements of the offence. The central issues were the nature of the admission required for a caution, whether the interview established the ingredients of sexual assault under Sexual Offences Act 2003, and the appropriate relief.

The claim succeeded and the caution was quashed.

1. A formal caution is a serious matter. Although there is no statutory framework governing adult cautioning in these circumstances, the applicable Home Office guidance requires evidence sufficient for a realistic prospect of conviction, an admission of the offence, and informed consent. Judicial review is available, although police officers have a wide margin of appreciation and successful challenges will be rare.
2. The required admission must be voluntary, clear and reliable, and must relate to all the ingredients of the offence. The court must consider all the interview evidence in the round when deciding whether such an admission was made.
3. Sexual assault under section 3 of the Sexual Offences Act 2003 requires intentional touching which is sexual, lack of consent, and absence of a reasonable belief in consent. The claimant’s interview did not admit either that the complainant did not consent or that he did not reasonably believe that she consented. His comments that she was initially alright, that he thought she was having a giggle, and that he did not perceive a problem were inconsistent with those admissions.
4. The caution therefore lacked the necessary clear and reliable admission and had to be quashed. The judge also observed that there was no admission that the touching was sexual, although it was unnecessary to decide the case on that additional ground.
5. The caution was to be expunged from relevant records. Records of the police investigation, including the interview and witness statements, were excluded from the destruction order because they had not been challenged. The defendant was ordered to pay the claimant’s costs.