Game, R (on the application of) v Avon & Somerset Police

Judicial review of a decision to retain a police caution concerns the lawfulness of the decision-making process, not a rehearing of the underlying facts. A chief officer’s discretion to delete a police record is exceptional and should ordinarily be exercised only where the arrest or sampling was unlawful, or it is established beyond doubt that no offence existed. Evidence suggesting an inducement to accept a caution must be considered, but does not necessarily make deletion exceptional. A breach of record-retention guidance does not automatically invalidate the decision or require deletion. The court may quash an unlawful decision, but the discretionary decision whether to delete the caution remains for the chief officer.

The claimant sought judicial review of the refusal by the Chief Constable of Avon and Somerset Police to remove a caution administered in 2004. He alleged that he had been induced to admit the offence by assurances that the caution would have no lasting effect, and complained that parts of the custody record and interview evidence had not been retained.

The claim followed earlier unsuccessful judicial review proceedings concerning the same events. The central issues were whether the Chief Constable’s decision-making process was unlawful, whether the circumstances were exceptional so as to justify deletion of the police record, and what significance should be attached to the unavailable records.

1. The claim was dismissed. The court’s task was to determine whether the Chief Constable’s refusal dated 25 May 2011 was lawful. It was not to resolve the disputed factual account of what occurred in 2004 or to decide directly whether the caution should be deleted.
2. The applicable guidance gave chief officers discretion, in exceptional circumstances, to authorise deletion of records held on the Police National Computer. Exceptional cases were rare and could include an unlawful arrest or sampling, or circumstances in which it was established beyond doubt that no offence existed.
3. The court distinguished R v Commissioner of Metropolitan Police ex parte Thompson [1996] EWHC (Admin) 379. The alleged inducement in that case operated before the interview and admission of guilt. On the evidence considered here, the Chief Constable was entitled to regard the present circumstances as materially different and not exceptional.
4. The Chief Constable had considered the claimant’s account, the available police records and the surrounding circumstances. The claimant accepted the physical circumstances underlying the caution, although he disputed his intent. The inconsistencies in the police material did not make the decision irrational or procedurally flawed.
5. The court accepted that the missing custody material and interview record were more than purely administrative information and that the guidance contemplated retention of relevant records for at least six years. Even assuming a failure to comply with the guidance, that did not determine the lawfulness of the later decision. The Chief Constable had taken the available information into account, and the alleged failure did not require a different outcome.
6. The court also rejected the criticism of delay. The claimant had no evident reason to challenge the caution until he discovered that it could affect a criminal records check. Permission to appeal was refused because there was no realistic prospect of success.

The judgment states that the claimant had previously brought unsuccessful judicial review proceedings concerning the same caution, including proceedings against the Independent Police Complaints Commission and an earlier claim against the Chief Constable. Those decisions were not under appeal in the present claim.

Permission to appeal was refused at the hearing. The claimant was informed that he could renew the application before the appeal court.