[23] In R (T) v Chief Constable of Greater Manchester and others [2015] AC 49 the Supreme Court considered the case of an 18 year old claimant who had sought to enrol for a sports degree course at a university which involved contact with children. The university required him to obtain an enhanced criminal record certificate which revealed police warnings in respect of two stolen bicycles. The claimant sought judicial review asserting that the disclosure provisions of Part V of the Police Act 1997 in requiring the mandatory disclosure of all convictions and cautions relating to recordable offences held on the police national computer were incompatible with his right to private life guaranteed by Article 8 of the Convention. The court held that cautions or warnings, the receipt of which took place in private, represented an aspect of the recipient's private life, respect for which was guaranteed by Article 8.1 and that the disclosure by the State of the details of such caution or warning constituted an interference with that right and so had to meet the requirements in Article 8.2 of being in accordance with the law and necessary in a democratic society. The court applied the decision of MM v United Kingdom (Application No. 24029/07) noting that the jurisprudence of the ECHR imposed strict standards in relation to the use by the State of personal data and that the requirement of legality had been breached because the disclosure provisions under Part V of the 1997 Act contained no safeguards against arbitrary interference with the Convention right. There was no clear legislative framework for the collection and storage of data, no clarity as to the scope, extent and restrictions of the common law power to the police to retain and disclose caution data, and no mechanism for independent review of a decision to retain or disclose data.
Was the admission by the applicant to the offence of resisting the police a breach of Article 8 in the absence of the applicant being informed that he had a right to legal advice?
[24] We note the following in relation to this question:
( i ) In the circumstances of this case the decision that the applicant should receive an IW was taken by the PPS but the decision as to the circumstances under which such a warning should be administered was taken by the PSNI in accordance with the then current service procedure SP17.
( ii ) It is conceded that there is no clear domestic or European authority dealing expressly with this issue.
( iii ) In R(R) v Durham Constabulary [2003] 1 WLR 897 the Divisional Court did not consider it necessary to come to any conclusion as to the arguments based upon Article 8 and, as noted above, the Article 8 submission was not pursued before the House of Lords. In R (T) v Chief Constable of Greater Manchester Police Lord Wilson, delivering the primary judgment of the Supreme Court, after referring to the two main judgments in R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410 , said at paragraph [17]:
The context of the applicant's consent
[25] The relevant factual context in which the IW appears to have been administered to the applicant was as follows:
( i ) On 29 September 2014 the applicant was interviewed by Constable Keegan and Assistant Investigator Gowan in the presence of his solicitor and an appropriate adult. He was informed that the potential outcomes were an IW, a restorative caution or being reported for prosecution. He was also told that an IW or restorative caution could only be given if he had admitted his involvement in the offence and that, even if he did so, he could still be referred for prosecution. He was also told that an IW would appear on his criminal record and that it might be disclosed in any subsequent proceedings. His solicitor confirmed that she had discussed the potential disposals with the applicant. A 'no comment' interview then took place.
( ii ) Upon receipt of the PSNI file, the PPS decided that the evidential test for prosecution had been met but that the public interest could be sufficiently served by the administration of an IW.
( iii ) The PSNI Youth Diversion Officer, Constable Cunningham, was charged with arranging and implementing the IW procedure. The applicant's social worker, Ms Auld also attended. According to her affidavit Ms Cunningham explained to the applicant what an IW involved, that it was an alternative to going to court and that the implications for acceptance included the fact that it would appear on his police record. She may also have told him that the IW would remain 'live' for a period of 12 months.
( iv ) In the course of her affidavit Ms Cunningham maintains that she discussed the matter with Ms Auld and that she confirmed, inter alia, that the applicant understood the process and implications of an IW.
( v ) Ms Auld has stated on affidavit that she was telephoned by Constable Cunningham to arrange the administration of the IW. However, she asserts that, during that conversation, there was no discussion about the detail of an IW. Ms Auld was able to recall Constable Cunningham explaining to the applicant that the IW was an alternative to proceedings in court and she stated in her affidavit that the contents of paragraph 14, 15 and 16 of the Constable's affidavit accorded with her general recollections. Paragraph 15 included the assertion by Constable Cunningham that Ms Auld had confirmed that the applicant understood the process and implications of an informed warning. While there is no doubt that, as the applicant's social worker, Ms Auld was fully aware of and informed about his background of domestic, social and educational difficulty, as Ms Simpson reminded the court, Ms Auld was not a lawyer and her knowledge of the informed warning procedure was only as good as the information that she received from Constable Cunningham.
( vi ) There can be no doubt but that the applicant in this case was an extremely vulnerable young person. The various social work reports prepared in relation to the application for him to be admitted to secure accommodation confirm a highly disruptive and damaging family background including domestic violence together with alcohol and substance abuse. As a consequence, his own behaviour has been disruptive, aggressive and risk-taking. He has a history of absconding, an unstable educational background and a limited attention span. Despite his young age he himself has been involved in substance and alcohol abuse. He was removed from his mother's parental care on 23 September 2013 subsequent to allegations of being physically assaulted and arrangements for him to live with his father broke down following a number of volatile and aggressive exchanges.
Was the consent of the applicant informed in the circumstances?
[26] On behalf of the PSNI Mr Egan accepted that Service Procedure SP17 was not the product of any statutory or regulatory provision but arose from the common law powers of PSNI and was grounded in the principle of consent. In the course of his helpful skeleton argument he set out three conditions to be satisfied for an IW to be lawfully administered in accordance with SP17:
( a ) there had to be evidence judged to be sufficient to support a successful prosecution;
( b ) the young offender had to admit the offence, and
( c ) the parent or guardian of the young offender had to give informed consent.
[27] In R neither the Crime and Disorder Act 1998 nor the Guidance issued thereunder by the Secretary of State envisaged or required that the consent of the young offender should be sought or required prior to the administration of a warning and R was not aware of the consequent obligation to register with the police under the Sex Offenders Act 1997 until after the warning had been administered. The Divisional Court did not consider that failure to warn of the consequences of a final warning could render the decision to administer a final warning unlawful as a matter of domestic law and that conclusion was not challenged before the House of Lords. However, in R , as Lord Bingham indicated at paragraph [12] of his judgment it was inescapable that the criminal charge ceased to exist when a firm decision was made not to prosecute.
[28] In the instant case it would appear that the PPS reserved the right to proceed with the prosecution for resisting police in the event that the applicant refused to be subjected to the IW procedure. The applicant was expressly so informed in the presence of his solicitor by constable Keegan when the IW was being administered.
Discussion
[29] We consider that this is a case which must be seen very much in the context of its own specific circumstances. In that context while the replacement of SP17 by the YE procedure is a factor, particularly bearing in mind the impressive extent of the consultation upon which the latter has been based, we also bear in mind that most systems are capable of improvement and the fact that improvement takes place does not necessarily mean that the pre-existing system was unlawful.
[30] In principle we are inclined to the view that the judgment of Lord Wilson in T, an excerpt from which we have cited above, supports the proposition that the administration and receipt of an IW in accordance with SP17 engaged Article 8(1) of the Convention. We consider that R may be distinguished upon a number of grounds:
( i ) That case concerned a statutory scheme which the House of Lords noted did not require the consent of either the claimant or his step-father prior to the administration of a warning.
( ii ) The House of Lords also concluded in that case that any possibility of prosecution had been brought to an end by the decision of the police officer to administer the warning.
( iii ) The primary concern of the arguments in R was the potential application of Article 6 of the Convention and, as Lord Bingham specifically recorded, Article 8 was not pursued in oral argument before the House. However, while his remarks may have been, strictly speaking obiter, he was forthright in holding that the measures concerned were compliant with 8(2) justification as being compliant with the law, pursuant to a legitimate aim and necessary in a democratic society. In the instant case we consider that the fundamental issue is whether the particular circumstances in which the IW was administered were lawful as being compliant with procedural fairness.
[31] Even if we are not correct in holding that Article 8 is engaged in this case, we have to consider whether it was lawful at common law to subject this particular applicant to SP17. Mr Egan concedes that the scheme arose from the PSNI's common law powers and was grounded on the principle of informed consent. Unlike the statutory scheme in R, the possibility of prosecution had not been removed prior to the administration of the IW. At interview on 28 September 2013 Constable Keegan had informed the applicant that, even if he admitted the offence, he might still be referred for prosecution through the courts and, as Mr Henry made clear in his submissions to this court, the procedure adopted by the PPS was both sequential and flexible in that, if diversion had been refused, it would still have been a matter for the PPS to determine whether it was in the public interest to prosecute. Mr O'Donoghue submitted with some force that, in such circumstances, there must have been a significant prospect that a decision would be taken not to prosecute in the event of a refusal to accept an informed warning. The witnesses responsible for the most serious allegations had already withdrawn their complaints and the PSNI had indicated its view that it was not in the public interest to prosecute the applicant for resisting arrest. It seems to us self-evident that neither Constable Cunningham nor Ms Auld would have been in a position to give objective advice in relation to such a prospect. In addition, while the applicant may have been told that the IW would be 'live' for a period of 12 months there is no evidence to indicate that he received any information explaining that the offence of resisting arrest pursuant to Section 66 of the Police (Northern Ireland) Act 1998 was one of a list of offences which was not eligible for 'filtering' and therefore remained discloseable in the circumstances detailed in the memoranda compiled for the court by the PSNI.
[32] The legal requirement of procedural fairness, reflecting the principles of natural justice, has always been an entirely contextual principle with 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.
[33] We have referred above to the damaging and destabilising background of this applicant. 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 the 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 such as SP17 and its successor YE represent praiseworthy attempts on the part of the PPS and PSNI to recognise that risk and to achieve a just balance between the rights of the individual and those of the community. It is accepted that those concerned sought to conscientiously comply with SP17 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. In that context, we remind ourselves of the eloquent and authoritative review of national and international law relating to the rights of children contained in the judgment of Baroness Hale in R and echoed by Gillen LJ in the Northern Ireland Court of Appeal in M v A Health and Social Care Trust [2014] NICA 73 . After careful consideration, we have reached the conclusion 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 law and should be quashed and that the IW should be removed from his record.