Earlier this week, the BBC and The Victoria Derbyshire programme reported on a new warning notice scheme being issued by some police forces in England and Wales. The notices are issued when police have received intelligence raising concerns about an individual’s sexual behaviour but there is insufficient evidence for the matter to proceed to charge.
The “C5” notice informs the person that the police have concerns about their sexual behaviour; it then describes a number of offences related to child sexual exploitation and the aim is said to be to educate and inform people about their behaviour.
Innovation and education should of course be welcomed. It is also well understood that the police are under pressure to deal with an increasing volume of allegations of sexual offences and so it is understandable that they are trying to find a solution. However, the issuing of these notices goes too far for a number of reasons.
- It is effectively criminalisation without due process for what are very serious offences of child sexual exploitation
It is not clear what quality of intelligence is required by the police before they give one of these warnings: will an anonymous tip off from a malicious neighbour be sufficient; would information from vigilantes be sufficient? There is no requirement for an objective review of the quality of the evidence. It cannot be right that unexamined intelligence can be used to mark someone’s record with something that points so fundamentally to a flaw in your character.
If the police feel that a person does pose a risk, there is already a system of pre-offence “sexual risk orders” that have procedural safeguards such as court approval where the police and court will have to turn their minds to the quality of the information received. See our blog here.
- No right to appeal
The C5 notices can be served on a person, at home, and there is no opportunity for that person to challenge or appeal the notice. There is no obligation to notify a parent or guardian if the notice is served on a child.
Practically speaking, there is very little anyone can do to challenge the notice or remove it from their record and any efforts to do this would be time consuming and very expensive with limited chances of success. If you refuse to sign the notice, there is nothing to stop the police recording that they sought to issue you a notice and you refused.
- One sided process
There is no formal opportunity to put your account to the police or have it recorded in any way. It is a one-sided process. The police simply receive information about an individual and make a decision to serve the notice with limited oversight. Once it has been served, it is recorded on the Police National Computer and will remain on that system until you are 99 years old.
- Consequences of C5 notices
The implications of receiving a notice are profound and serious. Information that is recorded on the Police National Computer can be disclosed when a person is asked to undertake an enhanced criminal records check. Enhanced checks are required where the person is applying to work with children or vulnerable adults.
The notices themselves are very broadly drafted and refer to a range of sexual offences and child sexual exploitation. The lack of specificity concerning the behaviour complained of could be very misleading to a future employer. This is particularly worrying when we consider that a 16 year old could receive this type of notice for some immature or even perfectly innocent behaviour and be faced with the prospect of a life-long limitation on their career choices.
These notices are not insignificant educational tools. They will come up again in a variety of everyday situations – if someone is going through divorce proceedings, trying to adopt, involved with social services or even trying to obtain residence in another country. Regardless of what the police say about it being primarily an educational tool, the majority of people will assume that there must be something to it if the police put a warning notice for child sexual exploitation on your record.
- Not a solution
Ultimately, the use of these notices is not satisfactory for anyone involved. If there is a real risk then that should be investigated, charged or a sexual risk order obtained. A notice is insufficient to deal with serious criminal behaviour. It is not satisfactory for victims because there is no proper examination of the evidence or charge and no risk assessment to inform public protection measures that might be required. In the absence of a genuine risk, then it cannot be right that someone can receive a warning on their record without being given an opportunity to put forward their account or appeal it.
We have seen with similar schemes, e.g. the harassment warning notices, that the notice can end up being used as an end in itself with real risks to the victims in those cases as the matter is seen as being dealt with once a notice is issued and the matter not investigated properly.
Most concerning from our practice working with children and young people is that these notices are being given to under 18s. We have concerns that vulnerable and young people will be targeted by this with long-lasting implications for their private lives and careers. The process has the effect of criminalising children and teenagers for immature and childish behaviour which is contrary to the existing legislation.
The C5 notice includes a warning that the police will continue to monitor the recipient’s behaviour. The legal basis of such “monitoring” is currently unclear and Hampshire police confirmed they have “followed up” nine of the 54 notices issued so far. There have been recent reports that Merseyside Police have been struggling and failing to visit high risk sex offenders once a year. This is for people who have been investigated, charged, convicted and sentenced – and deemed high risk. If visits and monitoring of the most serious high risk individuals is becoming unmanageable, then it is unlikely that this new warning notice process will be prioritised.
- Education and rehabilitation
Of course, rehabilitation is something to be encouraged and education about this issue is so important, but there can be education without criminalisation. The police could speak to people informally rather than putting a formal notice on their record; resources could be used to educate people in schools, clubs or at work places. There are organisations that offer this service for free - we do it in schools. It is educational and delivered to a much wider audience than the one individual.
There is a further argument to be made for using cautions with formal rehabilitation programmes. In those cases, the person will have made an admission, put forward their account and there is an official finding against them. This warning just goes too far from the required standards set by parliament. It is criminalisation by default, without the procedural safeguards required for a caution or a formal conviction.
If you have any questions about the issues raised in this blog, please contact a member of our criminal litigation team in confidence.