This note discusses the recent decision by the House of Lords in R v Durham Police and another, ex parte R.1 This case concerns the legality of the reprimand scheme introduced by the Crime and Disorder Act 19982 which replaced the previous informal and formal system of cautions. The principal issue in this case was whether it was necessary for an offender to consent to a reprimand being issued or whether one can be imposed on a youth offender. Consent was a pre-requisite for formal cautions, and continues to be so for adult offenders yet the statute is silent as to the place of consent in the reprimand system. The House of Lords, in this case, decided that consent was not required before the police could issue a reprimand and it is contended in this article that this has significant implications for the right of juvenile offenders to due process.
The case is important but also quite unusual in that it is one of these rare situations when the decision is de jure unanimous but de facto a majority decision, with Lady Hale and Lord Steyn strenuously objecting to the decision but without actually dissenting. The objection takes the form of an examination of International law although Lady Hale concludes that its place within the European Convention on Human Rights remains questionable and thus the temptation to proceed to Strasbourg for a definitive ruling may well be compelling.