Case No. CO/3720/2009 
Neutral Citation Number: [2009] EWHC 3640 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 8 July 2009
 
B e f o r e:

SIR ANTHONY MAY 
President of the Queen's Bench Division 

MR JUSTICE SAUNDERS
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Between: 
"M" 
Claimant

v 

LEICESTERSHIRE CONSTABULARY 
Defendant 
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MR S FIELD (instructed by JOHNSON PARTNERSHIP) appeared on behalf of the Claimant 
MR J ELEY (instructed by CPS) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE SAUNDERS:  This is an application for permission to apply for judicial review, to quash a decision made by the defendant to give a juvenile final warning to the claimant in relation to an allegation of attempted rape.  The single judge referred the question of permission to the full court and directed that if granted the substantive application should be heard immediately.  At the outset of this hearing we gave permission.
2.	Both the claimant and the complainant in the allegation of rape, as it started out, were 13 at the time and therefore their identities should not be disclosed.  I shall call the claimant "M" because that is how he is referred to on the papers, and the complainant "C".  "M" and "C" were friends.  At the time of these events they could be loosely described as girlfriend and boyfriend.  On the afternoon of 15 September 2008, "M" visited "C" at her house.  She was alone in the house because her mother had gone to work, and she was in bed in her pyjamas.  "C" left a note on the front door inviting "M" in and saying that she was asleep.  "M" went upstairs; there was some sexual activity with consent between them, but then "C" decided to go to sleep.  She says that she was awoken by a sharp pain, "M" was on top of her and he had his penis out of his trousers.  She told him to go, which he did, and she complained to her mother.  
3.	After a meeting between the two mothers, the matter was reported to the police.  There was no scientific or medical evidence to support the allegation that penetration had occurred, which is why "M" was given a final warning for attempted rape rather than the completed offence.  "M" was arrested that night, kept in custody, and then interviewed the next day until about 4.30 in the afternoon when he was released on police bail.  A final warning was issued for the offence of attempted rape on 21 January 2009.  
4.	The legislative framework for final warnings of juveniles is to be found in section 65 and 66 of the Crime and Disorder Act 1998.  I shall cite only those parts of the section which are relevant to this case.  Section 65, headed "Reprimands and warnings", subsection (1):
"Subsections (2) to (5) below apply where, a) a constable has evidence that a child or young person (the offender) has committed an offence; b)  The constable considers that the evidence is such that if the offender were prosecuted for the offence there would be a realistic prospect of his being convicted; c)  The offender admits to the constable that he committed the offence; d)  The offender has not previously been convicted of an offence; and e) the constable is satisfied that it would not be in the public interest for the offender to be prosecuted."
5.	And the relevant part of section 66 headed 'the effect of reprimands and warnings':
"(1)where a constable warns a person under section 65 above, he shall, as soon as practicable, refer the person to a youth offending team.
(2) a youth offending team a) shall assess any person referred to them under subsection (1) above; and b) unless they consider it inappropriate to do so, shall arrange for him to participate in a rehabilitation programme.
(4) where a person who has been warned under section 65 above is convicted of an offence committed within two years of the warning, the court by or before which he is so convicted under subsection a) shall not make an order of conditional discharge in respect of the offence unless it is of the opinion that there are exceptional circumstances relating to the offence or the offender which justifies doing so; and b) where it does so, shall state in open court that it is of that opinion and why it is.
(5)  The following, namely b), any warning of a person under that section may be cited in criminal proceedings in the same circumstances as a conviction of the person may be cited."
6.	In 2002 the Home Office issued guidance as to the administration of the scheme.  The relevant parts of that guidance are as follows:
"(1.1)  This guidance provides advice to the police and youth offending teams on the operation of final warning schemes.
(1.2)  The principal aim of the youth justice system established by section 37 of the Crime and Disorder Act 1998 is to prevent offending by children and young people.
(1.3)  The final warning scheme aims to divert children and young people from their offending behaviour before they enter the court system.
(1.4)  The scheme was designed to do this by ending repeat cautioning and providing a progressive and effective response to offending behaviour, providing appropriate and effective intervention to prevent reoffending, and ensure that young people who do reoffend after being warned are dealt with quickly and effectively by the courts."
7.	4.9 sets out a step by step guide to the decision making process:
"(4.9)  The first step is to decide what offence is supported by the evidence. 
Step 2, is there sufficient evidence against the young person to give a realistic prospect of conviction if he or she were to be prosecuted.
(4.10)  For action to be taken under the scheme, the evidence must meet the required standard, that it could be used and would be reliable such that a jury or bench of magistrates properly directed in accordance with the law would be more likely than not to convict the young person.
Step 3, does the young person admit the offence?  
(4.12)  A reprimand or warning can be given only if the young person makes a clear and reliable admission to all elements of the offence, this should include an admission of dishonesty and intent where applicable.  
(4.13)  Unlike adult cautions, the young person does not consent to the reprimand or final warning.  Under the legislation it is a matter for the police to decide the appropriate disposal in accordance with the statutory criteria.  
(4.14)   Young people and their parents or carers, or other appropriate adults, should have access to information about the options available, including the final warning scheme, so that they can make an informed decision before the question as to whether they admit the offence is put to them.  For instance, they should be aware that the police will decide the appropriate disposal under the final warning scheme in the light of the statutory criteria.  The status of a reprimand or final warning should also be explained, including the fact that a record will be kept for a minimum of 5 years, or until the offender reaches 18 years of age, which ever is the longer, that it can be cited in criminal proceedings, in some cases it can be made available to employers.  If the offence is listed under the Sex Offenders Act 1997, that a reprimand or final warning will also require them to register with the police for inclusion in the Sex Offenders Register.
(4.15)  If the young person does not make an admission, he or she cannot be reprimanded or finally warned.  The police will decide whether to take no further action or to charge the young person, and may seek the advice of the Crown Prosecution Service before making the decision.
Step 4, has the young person previously been convicted of an offence?"  
8.	By a further circular issued in 2006, the Home Office prescribed that, in cases of rape and attempted rape, the decision whether to reprimand, give a final warning or charge, was to be for the Crown Prosecution Service.  It should be noted, as I have already said, this scheme differed from the previous non‑statutory regime of cautions in that it does not require the consent of the juvenile or his parents before the caution is administered.  
9.	No one argued in this case that a final warning would not have been a suitable disposal for this case, provided that the necessary statutory conditions had been met.  The making of and receiving of a final warning should not be taken lightly, the consequences can be serious.  A final warning is recorded and can be relied on in court if the recipient is charged with any future offence, or it may well be, he can be cross‑examined about it, with the leave of the judge, if he appears in a case as a witness.  With an offence of attempted rape, as here, the recipient of a final warning goes on to the Sexual Offenders Register for a period of a year.  While a final warning is not a conviction, details of a final warning for an offence such as this may well have to be disclosed if the recipient was to apply in the future for employment with children.  He might also have to disclose that he had been on the Sex Offenders Register.  Serious as it is however, a final warning may seem a more attractive option than facing a trial in a court where, if convicted, the offender may receive a more severe penalty.  Because of the risk of a person admitting an offence because of the express or implied promise that he will receive a caution if he does, this court made it clear in R (Thompson) v The Commissioner of the Metropolitan Police [1997] 2 CAR page 49 that any admission on which the police rely should have been made before a decision to caution had been made, and not in order that a caution may be the only penalty.
10.	As I have made clear, in section 65.1A to E pre‑conditions to the imposition of a final warning are set out.  It is not disputed that those subsections were met in this case, except for pre‑condition C, that is that the offender admitted the offence to a constable.  While the statute gives the discretion to the constable to decide whether to give a final warning, and therefore to decide whether an admission of the offence has been made, the decision in cases of this gravity is made by the Crown Prosecution Service.  The Home Office guidance has amplified the test as to whether an admission has been made to say: 
"A reprimand or warning can be given only if the young person makes a clear and reliable admission to all elements of the offence."  
11.	The House of Lords in R (R) v Durham Constabulary [2005] 1WLR page 1184, considered the workings of this scheme in detail and decided that the consent of neither the young person nor a parent was required before a reprimand or final warning could be issued.  It also decided that Article 6 of the European Convention on Human Rights was not engaged by the process, at least once a decision had been taken not to charge.  Lord Bingham summarised the position in the case of R in this way at paragraph 13: 
"The police officer, having satisfied himself that he had evidence that R had committed offences, having formed the opinion that the evidence was such that there would be a realistic prospect of R's conviction, having satisfied himself that R had admitted the offences, and having satisfied himself that R had not been convicted before, had only two decisions to make:  Whether it would be in the public interest for R to be prosecuted, and whether, if not, he should be reprimanded or warned or no further action taken.  It was..." said Lord Bingham "...no part of his duty to decide or determine or adjudicate whether R was guilty or not, and however parliament envisaged the exercise of such a function, it would not have entrusted it to a police officer."
12.	While agreeing with the result, Baroness Hayle had serious reservations on the scheme, based in part on international conventions concerning the interests of the child with which this scheme did not comply.  She said this at paragraph 46:
"However, as there was no public pronouncement of guilt, was there a determination of the charge?  Two important decisions were made in this case: the first was the child's decision to make the admission that he did, the second was the police officer's decision to administer a final warning rather than to prosecute him.  It is good for children to learn to take responsibility for their actions, that is part of growing up to be a responsible member of society.  It is therefore good for children to own up when they have done wrong.  But it is absolutely vital that children's admissions, like adults, should be voluntary and reliable.  Corners should not be cut just because the offender is a child, they must not be under any pressure to 'admit it and we will let you off with a caution'.  In essence that is the case of U, which was decided together with this, which was successful in the Divisional Court, and there has been no appeal.  His case, like the earlier case, R v the Commissioner of Police for the Metropolis ex parte P demonstrates that judicial review can be an effective safeguard in such cases."
13.	It is therefore right that this court should give anxious consideration to whether the criteria had been met in this case.  No doubt, as the House of Lords found, the correct legal position is that the making of a final warning does not involve any finding of guilt, but that is small comfort to a claimant whose life may be affected by the fact that there is a final warning on his record.  The issue for us, and the sole issue, is whether "M" made clear and reliable admissions to the offence of attempted rape.  If he did, then the final reprimand was lawful; if he did not, then the final reprimand is unlawful.  In order to decide whether there were clear and reliable admissions to all elements of the offence, it is necessary to identify the elements of the offence which had to be proved and then analyse what was said by the suspect.  
14.	An offence of attempted rape would be charged as contrary to section 1, subsection 1 of the Criminal Attempts Act 1981.  For the purposes of this case "M" would have been guilty of attempted rape if he did an act which was more than merely preparatory to the commission of the full offence of rape, intending to penetrate "C"'s vagina when she did not consent to the penetration and "M" did not reasonably believe that "C" consented.  There were three interviews of "M", which were all conducted on 16 December, on which the defendants rely.  Present at those interviews, in addition to the police and "M", were a representative from a firm of solicitors, and "M"'s aunt who was present as the appropriate adult.  During the first two interviews, while "M" admitted being there with "C", and agreed that some sexual activity took place, there was nothing which could be interpreted as an admission of attempted rape.  In the course of the third interview it was suspended at the request of the legal representative.  When the interview recommenced, the legal representative produced a prepared statement which read as follows: 
"My first account in interview is correct.  I did visit her at the address and went up to her bedroom.  I did perform a sexual act on ["C"] by touching her vagina with my fingers.  This we had done before.  I am not too sure of the exact version of events, but after the touching I went to the toilet.  I did spill my urine on the floor and I did clean it up, and I did wash my hands.  I then returned to ["C"], she was still on the bed, I thought she was asleep.  I can not say what was running through my head at the time, and I'm not sure of the exact events that took place.  I remember undoing my zipper and my penis was erect.  I laid on top of her, her trousers were still down from before when I was touching her.  I am not sure if my penis went inside her, it was only there a second then she woke up and everything after that that ["C"] states is true."
15.	On any construction of that document, what "M" admits in the course of that prepared statement was more than merely preparatory to the offence of rape.  What, it is argued, is not clear from that prepared statement is whether he was admitting to intending to penetrate "C"'s vagina at a time when he did not reasonably believe that she was consenting.  It seems that the officer carrying out the interview was not satisfied there had been an unambiguous admission because he carried on interviewing "M".  There are passages in that further questioning that the respondents rely on as amounting to admissions.  The officer said: 
"So you were going to try and have sex with her while she was asleep, is that right?"
A: "I was going to try and wake her up"
Q: "Had she said anything about having sex with you?" 
A: "We had discussed it a few times." 
Q: "But on this occasion?"  
A: "No."  
Q: "No.  So you undid your trousers and climbed on top of her and you tried to put your penis inside her?"
A: "I didn't exactly try and put it in her, I just got on top of her." 
Q: "well, What was your intention then?"  
A: "I just don't really know." 
Q: "Do you know whether you put your penis inside her?" 
A: "No, I don't." 
Q: "You are not sure?"  
A: "Well, I have never done it before, so how would I know?"
Q: "Okay, but you were trying to put it inside her?  I mean you said there 'I have never done it before so how would I know', so it suggests to me you are going to try and have sexual intercourse.  I have never done it before would suggest you are talking about sexual intercourse, is that right?" 
A: "Yes."
Q: "Right, So you are trying to put your penis inside her, and that is when she woke up and she pushed you off, is that right?"  
A: "Yes." 
Q: "Yes, all right, okay.  And she is asleep, she is not responding to what you are doing is she?"
A: "Well, she did wake up incredibly fast though I think." 
Q: "Well, I think, if somebody tries to do something like that they possibly would wake up, do you understand what I mean?  It might have been, you know, I don't know because I wasn't there, I mean, like I said, you said that the finger thing you had done that before, she might have been, you know, all right with that, I mean we do not really know, because again, you have not discussed anything and you are saying it was your assumption she was all right.  I mean we will after maybe clarify that with ["C"], how she felt about that, but obviously in her actions it is quite clear she was not very happy with the other thing that was happening was she?  She didn't know what was happening did she?  And if she doesn't know something is happening do you think she consents to it happening?  You are shaking your head there, no.  So in that respect you have tried to have sex with her without her consent, is that right?"
A: "I was going to wake her up to ask her." 
Q: "Yeah, but you have actually got on top of her first with your trousers down haven't you, with an erect penis?"
A: "Yeah."
Q: "Would it not have been better to like try and wake her up and say 'look, I like you, I love you, I would really like to make ‑‑ you know, have sex with you, how do we feel about that'?" 
 [no reply]
Q: "So are we saying your penis went inside her or not?"  
A: "Not." 
Q: "Are you sure about that?"
A: "I'm pretty sure because I just climbed on top of her." 
And then at page 158, an answer from "M": 
"She has never ‑‑ she has never said no when I have done anything to her, I just feel used."
Q: "Yes, you can see that, but you are not silly are you, you are not stupid, you understand what ‑‑ you know with sex and that, you know you can't go round doing things unless people let you do them can you?  You know the consent for you to do it, and in this case, yes you have touched, you thought ‑‑ I mean you said yourself you put your fingers between her legs, you thought you have done it in the past so it would be okay to do this.  You are telling me she didn't ‑‑ you know ‑‑ she smiled and she didn't say anything other than that, but initially you said that she woke up, opened her eyes and pushed you off when you are putting your fingers inside now and again.  The main thing that ["C"] said is that you were on top of her.  Yeah, that is when she pushed you off, then you then said you went to the toilet, tidied up, and then you decided you were going to have sex with her, you didn't discuss it with her did you?"
A: "No."
Q: "You know, you just got on.  You know, as far as you were aware, on the statement you said she was asleep, you have got on top of her, you have tried to put your penis inside her, and you have tried to have sex with her, and in all respects without any consent, yes?" 
A: "Yes."
And there the interview ended.  
16.	The police sent the file to the Crown Prosecution Service.  While the decision was clearly that of the Crown Prosecution Service, the police, it is apparent from the correspondence, did feel that the matter could appropriately be dealt with by some sort of counselling, without the need for official action by way of charge, warning or reprimand.  The Crown Prosecution Service reviewing lawyer did not agree.  She felt that the seriousness of the allegation required some action.  That decision was well within the bounds of her discretion.  She advised that the matter should be dealt with by way of a final warning linked with advice from the YOT Sex Team.  She did take the view that there had been a clear and unambiguous admission to attempted rape which she said was to be found in the prepared statement.  
17.	Before the final warning was administered, the police were informed there were some issues as to the reliability of the admission of guilt, and that "M" was not prepared to accept guilt which he would have to do on the form for the final warning to be made.  A police sergeant who was told of this, then informed "M"'s solicitor that if he did not accept the final warning, the likely outcome would be that the matter would go before the court.  Clearly, in those circumstances, as has been made clear by both this court and the House of Lords, no support for any admission can be drawn from "M" apparently accepting a final warning, because he was faced with the prospect, either accept the final warning or the matter will go to court, where of course the penalty could be greater.  
18.	We have considered the prepared statement with care.  We do not accept, as apparently the Crown Prosecution Service lawyer did, that the prepared statement contained a clear and reliable admission of guilt of attempted rape.  While it contains an admission to committing a sufficiently proximate act for an attempt, it does not contain any admission of an intention to penetrate the girl without her consent.  In so far as the subsequent questions are relied on as an admission; as can be seen from the passages I have quoted, the officer sets out a number of different propositions in one question so that it is impossible to decide what the suspect is agreeing to.  Also, the record of the interview seems to indicate towards the end of that interview the officer was simply not prepared to take no for an answer and persisted in a series of leading questions, suggesting to "M" that he had committed the offence.  The codes of practice under the Police and Criminal Evidence Act make it clear that in relation to interviewing a juvenile, they can make unreliable admissions if put under pressure or asked questions in a confusing manner.  Counsel has told us today that the guidelines for interviewing juveniles clearly requires questions to be short, clear and concise.  The questioning of "M" did not comply with those requirements.  
19.	We are not satisfied that what was said in the interviews and the prepared statement amounts to a clear and reliable admission of the offence.  "M" was not clearly and reliably admitting an intention to penetrate "C" even if she did not consent because she was asleep.  It follows that in our judgment the pre‑conditions of section 65 were not met in full to enable a final warning to be made, and accordingly that should be quashed.   
20.	SIR ANTHONY MAY:  I agree.
21.	MR FIELD:  My Lord, I have two applications.  The first is for a detailed assessment of the claimant's publicly funded costs.
22.	SIR ANTHONY MAY:  Yes, you can have that.
23.	MR FIELD:  The second, and I do not know if one cancels the other, is an application for costs against the defendants.  I have a obligation to ‑‑ 
24.	SIR ANTHONY MAY:  You have an obligation to make at that application.
25.	MR FIELD:  I have an obligation to make that application.
26.	SIR ANTHONY MAY:  Mr Eley, what do you say about that? 
27.	MR ELEY:  My Lords, there is very little I can say about that. 
28.	SIR ANTHONY MAY:  Yes, I think that is right.  There is to be public funded assessment in so far as it is necessary that an order that the respondent pay the applicant, now claimant's, costs, to be assessed.
29.	MR FIELD:  I am very grateful, my Lord.  
30.	SIR ANTHONY MAY:  We are grateful to both of you.  Thank you very much.