10 September 2015

The Divisional Court, sitting today in Belfast, quashed a decision of the PSNI to administer an informed warning on an 11 year old boy without referring him to the possibility of seeking legal advice beforehand. The court was told that D (“the applicant”) was 11 years of age when he left his mother’s house to live with his father as a consequence of a serious deterioration in his family relationships. In September 2013, the PSNI received a report of an 11 year old male said to be out of control. When they arrived at the premises they found the applicant’s father restraining the applicant on the floor. The applicant’s father alleged that both he and the applicant’s aunt had been attacked and that the applicant had attempted to stab him with a knife. The police officer handcuffed and restrained the applicant until he calmed down. He was then arrested upon suspicion of having committed assault occasioning actual bodily harm, possession of an offensive weapon with intent, resisting police and issuing threats to kill. The applicant was interviewed the following day in the presence of an appropriate adult and his solicitor (however it was subsequently confirmed that neither his father nor his aunt wished to make a complaint). After consultation with his solicitor, the applicant was then interviewed under caution in the presence of the appropriate adult and his solicitor. He was advised of the ways in which the matter may be dealt with should there be sufficient evidence to proceed. These included an informed warning (“IW”), a restorative caution or being reported for prosecution. He was told that an informed warning or a restorative caution could only be given if he admitted his involvement in the offence, but even if he did admit the offence, he may still be referred for prosecution through the courts. The applicant’s solicitor indicated that it was going to be a “no comment” interview and it proceeded on that basis. The applicant was released unconditionally on all charges except for that of resisting the police. Following the police interview, a report was submitted to the PPS recommending no prosecution in respect of the offence of resisting police on the grounds that it was not believed to be in the public interest to pursue that single matter. The recommendation was based on the applicant’s age, his troubled family background, his lack of offending history and the decision by his father and aunt not to pursue the complaint. The PPS decided that it was in the public interest to prosecute and considered a number of diversionary options including an IW, a caution or a youth conference. The PPS decided an IW was appropriate because it was considered less serious and had a shorter lifespan. The IW was administered in December 2013 by a PSNI Youth Diversion Officer (“YDO”). The applicant’s father and his social worker were present. The YDO explained the nature of the IW procedure, confirming that it was an alternative to going to court and that, if accepted, an IW would appear on his police record. The applicant said that he understood and would like to have the matter disposed of in that manner. The YDO then read the IW to the applicant and confirmed that he admitted the offence of resisting arrest and consented to the matter being dealt with by that procedure. The applicant subsequently lodged judicial review proceedings to challenge the decision to administer an IW without providing him with legal representation during the process. The challenge was focussed solely upon the question of consent when such consent was based upon an admission of offending without the benefit of legal advice. It was claimed that this was a breach of the applicant’s rights under Article 8 of the ECHR. The Divisional Court firstly considered whether the admission by the applicant to the offence in the absence of being informed that he had a right to legal advice was a breach of Article 8. It referred to case law which appeared to state that cautions or warnings, the receipt of which takes place in private, do represent an aspect of the recipient’s private life thereby engaging Article 8. It then considered the context of the applicant’s consent in this case. The Court noted that the applicant was initially interviewed by the police in the presence of his solicitor and an appropriate adult and was, at that stage, informed that an IW was one of the potential outcomes and that this would appear on his criminal record and might be disclosed in any subsequent proceedings. When the YDO met the applicant, his father and his social worker to administer the IW, he was informed that it was an alternative to going to court, that by accepting the IW it would appear on his police record and would remain “live” for a period of 12 months. The PSNI submitted that its Youth Diversion Scheme (“YDS”) procedure arose from common law and was not the product of any statutory or regulatory provision. It sets out three conditions to be satisfied for an IW to be lawfully administered in accordance with the procedure: there has to be evidence judged to be sufficient to support a successful prosecution; the young offender has to admit the offence; and the parent or guardian of the young offender has to give informed consent. The Divisional Court stated that this was a case which had to be seen in the context of its own specific circumstances. It said it was inclined to the view that the administration and receipt of an IW in accordance with the PSNI’s YDS procedure engaged Article 8(1) of the ECHR. The Court said that even if it was not correct in holding that Article 8 was engaged in this case, it had to consider whether it was lawful at common law to subject the applicant to the YDS procedure. Counsel for the PSNI conceded that the scheme arose from the PSNI’s common law powers and was grounded on the principle of informed consent. The possibility of prosecution had not been removed prior to the administration of the IW. The Court said the PSNI would not have been in a position to give objective advice in relation to whether there would be a prosecution. It added that while the applicant may have been told that the IW would be “live” for 12 months, there was no evidence to indicate that he received any information explaining that the offence of resisting arrest was one of a list of offences which was not eligible for “filtering out” and therefore remained disclosable by Access NI. The Divisional Court said that the legal requirement of procedural fairness, reflecting the principles of natural justice, has always been an entirely contextual principle within the content of the duty depending upon the circumstances of the particular case. It incorporates the basic right to be given sufficient information to enable an informed decision to be reached by the subject whose future may be adversely affected. Noting the “damaging and destabilising” background of the applicant, the Court commented: “One of the most difficult and depressing realities which the courts have to deal with in this jurisdiction is the number of very young individuals, failed by their families, educational and social circumstances, who find themselves having to cope with complexities of the law generally as a consequence of negative peer influence combined with poor judgment. They are frequently at risk of acquiring a record of one kind or another which has the potential to adversely affect them long into the future. Diversionary schemes … represent praiseworthy attempts on the part of the PPS and PSNI to recognise the risk and to achieve a just balance between those rights of the individual and those of the community. It is accepted that those concerned sought to conscientiously comply with [the YDS procedure] in administering the IW. However, the court is obliged to subject the operation and outcome of any such scheme to the closest scrutiny so as to ensure compliance with the law.” The Divisional Court concluded that, in the particular circumstances of this case, the applicant’s consent could not be regarded as sufficiently or properly informed and that, consequently, the decision of the PSNI to administer the IW without referring to the possibility of seeking legal advice beforehand was not in accordance with the law and should be quashed and that the IW should be removed from the applicant’s record.