Neutral Citation Number:   [2006] EWHC 1904 (Admin)                                

Case No: C0/5684/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24  July 2006

Before:

THE HONOURABLE MR JUSTICE SILBER
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Between:

	R (on the application of RUPERT WYMAN)	Claimant	
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	THE CHIEF CONSTABLE OF HAMPSHIRE
CONSTAULARY	Defendant	

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Hugh Southey (instructed by Bhatt Murphy) for the Claimant 
Geoffrey Weddell   (instructed by Force Solicitor, Winchester) for the Defendant 

Hearing date: 5 July 2006
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APPROVED JUDGMENT

The Honourable Mr Justice Silber: 
I. Introduction 
1.	The claimant on this application is Rupert Wyman, who is an undergraduate at Southampton University and who challenges the decision of Police Sergeant Simon Reason made on 6 May 2005 to administer a formal caution to the claimant that he had sexually assaulted a woman at a nightclub in Southampton in the early hours of 6 May 2005.  The relevant terms of the caution are set out in the Appendix to this judgment. Sir Michael Harrison, who was sitting as a Deputy High Court Judge, gave the claimant permission to pursue this application.
2.The grounds of challenge are first that the claimant did not make   a clear and reliable admission to the alleged offence of sexual assault so as to justify him receiving a formal caution and second that   the formal caution is flawed on the face of the record because it misrepresents the circumstances of the alleged offence. 
 II. What kind of admission is required for a caution to be administered?
3. Mr. Hugh Southey counsel for the claimant contends that in order to be cautioned, it was necessary for  the claimant to have made a clear and reliable admission to the offence for which he was cautioned, which was sexual assault, but that the claimant did not make such an admission. Thus he submits that that the caution under challenge must be quashed but this is disputed by Mr. Geoffrey Weddell, counsel for the defendant.
4.There is no statutory framework governing the police cautioning of adults in the circumstances of the claimant’s case. The significance of a formal caution was described by Schiemann LJ (with whose judgment Butterfield J agreed) in R v Metropolitan Police Commissioner ex p Thompson [1997] 1 WLR 1519 when he said at page 1521 that:

“A formal caution is not something to be regarded lightly.  Records are kept of the administering of cautions. … Such a caution, while carrying no immediately disagreeable consequence for the recipient, has potential adverse consequences for him should he be accused of offending on a future occasion.  He is more likely then to be prosecuted for that offence and he will not be able to claim a good character before the trial court.  If convicted, the existence of a prior formal caution may affect his sentence.  Formal cautions are usually cited after any conviction of a juvenile.  In practice they are rarely cited in the cases of adult offenders but may be referred to if they are relevant to the crime under consideration”.

 5. Schiemann LJ then proceeded to explain the role of the court before quashing the caution when he said that:
“So far as the jurisdiction of this court is concerned, it is common ground that judicial review is available as a remedy in respect of a caution; that this court will not invariably interfere, even in the case of a clear breach of the guidelines relating to the administration of cautions, as the availability of a remedy is a matter for the discretion of the court; that police officers responsible for applying the Home Office Circular which sets out the guidelines “must enjoy a wide margin of appreciation as to the nature of the case and whether the preconditions  for a caution are satisfied;” and that it will be a rare case where a person who has been cautioned will succeed in showing that the decision was fatally flawed by a clear breach of the Guidelines. That much is clear from a decision of this court, R. v Commissioner of Police for the Metropolis, Ex parte P. (1995) 160 J.P. 367”.    
6.   It is settled law that before a caution can be administered, there has to be a clear admission by a defendant. The   Home Office Circular 18/1994 entitled ‘The Cautioning of Offenders’ and the ‘National Standards for Cautioning (Revised)’   provides guidance on the approach that the police should take to cautioning. It states with the emphasis as in the original that:
“A formal caution is a serious matter. It is recorded by the police; it should influence them in their decision whether or not to institute proceedings if the person should offend again; and it may be cited in any subsequent court proceedings.  In order to safeguard the offender's interests, the following conditions must be met before a caution can be administered - 
-there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction; 
- the offender must admit the offence; 
- the offender (or, in the case of a juvenile, his parents or guardian) must understand the significance of a caution and give informed consent to being cautioned. …
Note 2B A caution will not be appropriate where a person does not make a clear and reliable admission of the offence (for example if intent is denied or there are doubts about his mental health or intellectual capacity). … 
Note 2D: In practice consent to the caution should not be sought until it has been decided that cautioning is the correct course”
7..A failure to comply with the requirements of the Home Office circular can justify the Administrative Court quashing the caution following judicial review proceedings. For example, this court may strike down a caution where no admission has been obtained. In R v Commissioner for Metropolitan Police ex parte P (1995) 160 Justice of the Peace Reports 367, Simon Brown LJ (as he then was) with whom Curtis J agreed, explained at page 374 (with my emphasis added) that:
“It follows, in my judgment, that there was here no clear and reliable admission of guilt at any stage. I am invited to look at the evidence in the round and cumulatively to find such an admission. I decline to do so. In my judgment, the applicant made no admission of guilt, whether as an aider and abettor, or on the basis of joint enterprise. In short, I conclude that there was here the clearest failure to comply with the condition that the offender must admit the offence, and that a caution will not be appropriate without such a clear and reliable admission”. 
	
8.  The issue of cautioning is akin to the issue of formal warnings which are applicable to children and young persons under the Crime and Disorder Act 1998 and such warnings were recently considered by the House of Lords in R (on the application of R) v Durham Constabulary [2005] 1 WLR 1184. Baroness Hale (with whose speech   Lord Steyn agreed) explained ( with my emphasis added) that:
“46…Two important decisions were made in this case. The first was the child's decision to make the admissions he did. The second was the police officer's decision to administer a final warning rather than to prosecute him. … it is absolutely vital that children's admissions, like adults’, should be voluntary and reliable”.

9.Mr. Southey submits that that Home Office Circular 18/1994 and the authorities to which I have referred   make it clear that a caution will only be lawful if the person cautioned had already made a clear and unambiguous admission.
10. The defendant  takes issue with the claimant’s contention and in the Grounds for Resistance, it is contended  that:
“There is no requirement for the admission need to be a formal  admission in the same way as plea entered in court. During his interview the claimant admitted all the elements of the offence...contrary to section 3 of the SOA”
11. In my view, the correct position is that:
 (i) there must be clear and reliable evidence of a voluntary admission before a caution can be given;
	(ii)  the admission must relate to all the ingredients of the offence; and
	(iii) in order to ascertain if there is such evidence of a confession, it is necessary  to consider all the evidence of interviews with the person cautioned in order to determine  if such  an admission was made.
   III. To what does an admission for sexual assault have to relate?
12.	The caution administered to the claimant in this case   was for a sexual assault, which is an offence created by section 3 of the Sexual Offences Act 2003 (“the 2003 Act”)  and I must now explain the statutory landscape. Section 3 provides that:
“(1)A person (A) commits an offence if-
(a)he intentionally touches another person (B),
(b)the touching is sexual,
(c)B does not consent to the touching, and
(d)A does not reasonably believe that B consents.

(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section”.

13.Section 75 of the 2003 Act provides assistance on how sexual assault can be proved by stating that:

“(1)If in proceedings for an offence to which this section applies it is proved-
(a) that the defendant did the relevant act,
(b)that any of the circumstances specified in subsection (2) existed, and
(c)that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

(2) The circumstances are that-
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b)any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant's physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.”

14. Section 76 of the 2003 Act is also relevant to section 3 and it  provides that:

“(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed-

(a) that the complainant did not consent to the relevant act, and
(b)that the defendant did not believe that the complainant consented to the relevant act.
(2)The circumstances are that-
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant”.

15. Section 78 of the 2003 Act provides that:
“For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that-

(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”.
IV. Did the claimant make an admission, which enabled a caution to be administered to him?  
16. It is agreed by counsel  that the only place where such evidence of an admission by the claimant  can be found in this case  is in  the answers given by the claimant when he was interviewed by Police Constable Clarke. There are two transcripts of this evidence available. It was common ground between counsel  that they and I should use the transcript prepared by solicitors for the claimant, which I will analyse in order to determine if there has been a clear admission in respect of each of the four ingredients of the offence of sexual assault, which are set out in section 3 of the Act and which I have set out in paragraph 11 above.
17.Mr. Southey relies on the following extracts of the interviews with his emphasis added to show that there was no confession   of all the requirements of the offence of sexual assault. 
“Wyman: Intent at all, yeah just sort of dancing and then Jack went from the other side and it probably was slightly sandwiched and it may well have actually been the alleged incident because I’m not totally sure that she was happy …
Wyman: I’m not sure she wasn’t unhappy, but she wasn’t really happy - she wasn’t too bothered I don’t think. …
Wyman: … no intent at all I never danced with any intent I might well have touched her bottom, yeah but I wouldn’t have done anything else, I wouldn’t have whether she had the skirt or Wyman: …I sort of I think I don’t know whether she wanted to be danced with or not I just sort of grabbed her, not like
PC Clarke: (Laughs) That’s fine I know what you mean yeah
normal trousers I’d never lift it up, I wouldn’t do that, I’ve never done that I‘ve never had a problem before, never done it before. …
Wyman: I’m positive though when I started dancing with her she was ok, she wasn’t that unhappy. …
PC Clarke: Ok and you were dancing with her quite provocatively but you didn’t feel she had a problem with it?
Wyman: No. . . 
PC Clarke: Ok. But because you weren’t aware of her pulling away which might be from the position that you were at?  You didn’t realise she was having a problem with it?
Wyman: I couldn’t see her face from behind anyway I didn’t know what was going on I was just dancing with her.
PC Clarke: So you just thought she was having a giggle with you?
Wyman: Yeah all my mates were laughing we were just messing around” 

18.  Mr. Weddell submits correctly in my view that the interview needs to be considered as a whole and in particular he relies on   the following exchanges with my numbering and my emphasis in bold added in the transcript of the interview:

 The Claimant -This was next to the bar, again where we were all standing. I sort of I think I don’t know whether she wanted to be danced with or not but I just sort of grabbed her, not like

PC Clark-(Laughs) That’s fine I know what you mean yeah.

PC Clark- Can I just get you to tell me what happened then just when you and Jack were dancing with this girl?
 
The Claimant- I danced

PC Clark- Where was this?

The claimant- This was next to the bar where we were all standing. I sort of I think I don’t know whether she wanted to be danced with or not but I just sort of grabbed her, not like… intent at all, yeah just sort of dancing and then Jack went from the other side and it probably was slightly sandwiched and it may well have actually been the alleged   incident because I am not totally sure she was that happy.

PC Clark- Ok so what were you if I get you to just go a bit more in depth because I am not 100% sure if this is the alleged incident as such.

The Claimant - I’m not sure she wasn’t unhappy, but she wasn’t really happy- she wasn’t too bothered I don’t think.

 The Claimant - Groping her bum a bit. I can’t remember anything else.

PC Clark- Ok 

 PC Clark- And while you were dancing with a female although you can’t confirm if it’s the female in this picture?

The Claimant- I’m positive though when I started dancing with her she was ok.

PC Clark- Ok, but because you weren’t aware of her pulling away which might be from the position that you were at? You didn’t realise she was having a problem with it?
The Claimant - I couldn’t see her face from behind anyway I didn’t know what was going on I was just dancing with her.

The Claimant- Yeah well she just didn’t seem to particularly happy afterwards I don’t think but like from what I could see from behind obviously I don’t really know what’s going on. I don’t think she was either happy but I wouldn’t have said she was particularly distressed about it either.
		
PC Clark-Yeah you don’t remember her trying to push you off?

The Claimant- I don’t remember her lashing out I wasn’t smacked I wasn’t slapped nothing at all. Obviously you would expect it in an incident like that yeah someone at least hit you I don’t know pinch you smack you nothing”

19. A fundamental dispute in this case is whether the claimant made the appropriate admissions in respect of the ingredients of the offence of sexual assault and in particular that in the words of section 3 of the Act :

“..(b) the touching is sexual, (c) [the person touched] does not consent to the touching, and (d) [the claimant] does not reasonably believe [the person touched] consents”.

20. The claimant submits that the passages of the interview, which I have just quoted, make it clear that the claimant did not admit that he had committed an offence contrary to section 3 of the 2003 Act as:

	(a) it is not suggested that sections 75 and 76 of the 2003 Act (which are set out in paragraphs 12 and 13 above) applied in this case and so any admission to the alleged offence by the claimant  would require an admission that the victim did not consent; and
	(b) the passages quoted amount to a denial that the alleged victim did not consent to the touching. Instead it appears that the Claimant was saying that he believed that the victim did not have ‘a problem’ with the dancing; 

21. The defendant attaches great importance to the claimant’s comment in the interview that” I don’t know whether she wanted to be danced with or not but I just sort of grabbed her”.  In my view, the  statements made by the claimant in his interview did not constitute any admissions in respect of requirements (c) and (d), as I have explained because he said when he started dancing “she was ok”. He then said when they were dancing he did not feel she had a problem with him dancing “quite provocatively”. He then agreed with the police officer who said “you just thought she was having a giggle with you”. The claimant then explained that he could not see the claimant’s face, before stating “I do not think she was either happy or I would not have said she was particularly distressed about it either”. In addition the words in bold in paragraph 15 do not show that the complainant was indignant or  that something had been done to her without her consent.

22. None of those comments show an admission by the claimant first   that the complainant did not consent to the touching and second   that the claimant did not reasonably believe that she consented. In those circumstances there was no appropriate admission to those ingredients of the offence and that a formal caution should not have been administered with the consequence that it should now be quashed. It would be advisable if a police officer is contemplating administering a caution for him or her to put to the defendant the ingredients of section 3 of the Act, which I have set out in paragraph 11 above.

23. I ought to say that if I had been in doubt   (which I am not) as to whether there had been an appropriate admission so as to justify administering the caution, then I would have come to the   conclusion that the caution had to be quashed for the additional reasons that:

(a) as Mr Weddell accepts that the defendant as the prosecutor has the onus of making me sure that there was an appropriate admission and  I am certainly not so satisfied; and
(b) there is no admission  in the interviews that the  touching in question was sexual, which is requirement (b) of section 3 of the Act. The claimant did not accept that his hand went under the skirt of the complainant or that by grabbing the complainant’s bottom outside her skirt, his touching was sexual. 

24. In all those circumstances, it follows that there was not a clear and reliable admission to the alleged offence of sexual assault which would justify the claimant being formally cautioned. In those circumstances the caution must be quashed. So it is unnecessary for me to deal with the second submission of Mr Southey that the former caution was flawed on the face of the record because it misrepresented the circumstances of the alleged offence.

25. After I circulated a draft of this judgment I asked counsel for their submissions on the order that I should make. They both agreed that I should order that the caution should be quashed and that the defendant should pay the claimant’s costs to be assessed if not agreed.

 26. The claimant then sought  an order  that: 

“All records relating to the caution administered to the claimant on 6th  May 2005 be destroyed and the said caution be expunged from all relevant records, within 14 days of the date hereof”.

27. The approach of the defendant was not to oppose this order but Mr. Weddell felt obliged to draw my attention to various general matters not “on any specific instruction from the Chief Constable, but with a view to assisting the Court”. He pointed out that the police might wish to prosecute the defendant for sexual assault in proceedings in which the prosecutor should be able to question the claimant as to why he signed the caution. The difficulty about this point is that if this was a valid point, I would have expected the defendant as the Chief Constable   to have advanced this point as he must have already considered whether he wished to consider prosecuting the claimant  but, as I have explained, he does not oppose the order set out in paragraph 26 above.

28. The second point made by Mr. Weddell is that the claimant might sue the defendant in respect of the administration of the caution in which case the destruction of the caution and all records relating to the caution will prejudice the defendant. The existence of the caution is a matter recorded in this judgment and the relevant parts of it  are set out in Appendix. I do not understand why the relief granted in this case should be different from that granted in P’s case to which I referred in paragraph 7 above where Simon Brown LJ ordered that the court “would accordingly quash the caution and require it to be expunged from the [police’s] record”(page 375 F). The relief sought by the claimant goes further and it extends to the interviews and the investigations of the complaint against the claimant. I do not understand why the records of them should be destroyed as there is no challenge to them. Indeed if the claimant had been interviewed and not cautioned, there would not have been any request for these documents to be destroyed.  I propose to exclude them from the order but I   will give liberty to the parties to apply as they have not had an opportunity to make oral submissions although both parties have made oral submissions.

29. So the terms of the order will be:

1. The caution administered to the Claimant on 6th May 2005 be quashed and expunged from all relevant records, by 8 August 2006;

2. All records relating to the caution administered to the Claimant on 6th May 2005 be destroyed by 8 August 2006 save for any document obtained in relation to or as part of the investigation by the police of the complaint of Eleri-Sarah Arthur that the claimant had sexually assaulted her on about 6 May 2005 including but not limited to (i) records of the interview between the claimant and Police Constable Clarke and (ii) any witness statements;

3. The Defendant do pay the Claimant’s costs of the claim, such costs to be subject to detailed assessment if not agreed;

4. There be detailed assessment of the Claimant’s costs in accordance with Regulation 107 of the Civil Legal Aid (General) Regulations 1989 pursuant to the Community Legal Service (Funding) Order 2000;

5. Liberty to the parties to apply.

Appendix

 EXTRACT FROM RECORD OF ADULT CAUTION

Offences Included In Caution 

H5661 002.08.016.01 SEXUAL TOUCHING OF A FEMALE AGED 13 OR OVER NO PENETRATION- SOA 2003
Date and Place of Offence: 06/05/2005 00:00 AT SOUTHAMPTON IN HAMPSHIRE 44SC	

Full circumstances and officers comments:

[Rupert Wyman] admitted to touching aggrieved’s bottom whilst dancing with her in a provocative manner, although he cannot recall if he put his hand up her skirt and does not recall her protesting directly to him.  [Rupert Wyman] apologetic and advised it has taught him a lesson and in the future he will not consume as much alcohol or dance with females not known to him. 

FORMAL CAUTION

I admit to the offence(s) listed above and agree to be cautioned. I understand that this caution will be kept on record and may be cited if I should subsequently be found guilty of an offence by a court. I also understand that, in certain circumstances, it may be disclosed for employment vetting purposes.

Signed……[Rupert Wyman]…………………………………………