M v Leicestershire Constabulary

A juvenile final warning is lawful only where the statutory preconditions are all satisfied, including a clear and reliable admission to every element of the alleged offence. The court must identify the elements of the offence and analyse the suspect’s words in context. An admission is not reliable where it results from confusing, compound or persistent leading questions. Nor can acceptance of a warning support an admission where the suspect was told that refusal would probably lead to prosecution. The seriousness and consequences of a final warning make careful scrutiny essential.

The claimant, aged 13 when the events occurred, sought judicial review of a decision by the defendant to issue him with a final warning for attempted rape. Permission was initially referred to the Divisional Court and, once granted, the substantive claim was heard immediately.

The statutory scheme was contained in sections 65 and 66 of the Crime and Disorder Act 1998. The sole issue was whether the claimant had made a clear and reliable admission to all elements of attempted rape, particularly an intention to penetrate the complainant without her consent.

1. Outcome. The court quashed the final warning. The statutory preconditions in section 65 of the Crime and Disorder Act 1998 had not been met.
2. Under section 65, a warning requires, among other matters, evidence giving a realistic prospect of conviction and a clear admission by the young person to the offence. The scheme does not require the young person’s consent to the warning. The court followed the legal position explained in R (R) v Durham Constabulary [2005] 1 WLR 1184, that the police do not adjudicate guilt when administering a warning.
3. Attempted rape, for present purposes, required an act more than merely preparatory, an intention to penetrate the complainant’s vagina without her consent, and the absence of a reasonable belief in consent. The prepared statement admitted conduct sufficiently proximate to an attempt, but did not admit the necessary intention concerning non-consensual penetration.
4. The subsequent interview did not cure that deficiency. The officer used compound and leading questions which bundled several propositions together and repeatedly suggested that the claimant had committed the offence. The questioning was inconsistent with the requirement that interviews with juveniles be short, clear and concise. The answers therefore did not amount to a clear and reliable admission.
5. The court also applied the principle in R (Thompson) v Commissioner of Police of the Metropolis [1997] 2 CAR 49 that an admission relied upon for a caution should precede any decision or inducement that a caution will be the disposal. The claimant’s apparent acceptance could not support reliability after he was told that refusal would probably result in court proceedings.
6. The respondent was ordered to pay the claimant’s costs, subject to detailed assessment, and publicly funded costs were also to be assessed.

The single judge referred the permission application to the Divisional Court. The Divisional Court granted permission and heard the substantive judicial review immediately. The final warning was quashed.