Some people would have you believe claimants involved in civil actions against the police are only interested in financial compensation. As this blog post shows, they’re not.
Recent news reported the enactment of the Policing and Crime Bill under which approximately 49,000 gay and bisexual men found guilty of decades old sexual offences in England and Wales have been posthumously pardoned. In addition, the new law will allow approximately 15,000 living men who were found guilty of sex acts that are no longer illegal to apply to the Home Office for a pardon.
The offence of gross indecency was created by Section 13 of the Sexual Offences Act 1956 at a time of intolerance to the practice of homosexuality between men. The offence of indecency between men (colloquially known as “gross indecency”) was referred to, together with the offence of buggery, as “an unnatural offence”. Society did not recognise or approve of the practice of homosexuality between men until the Sexual Offences Act 1967, subject to limitations. However, the legal recognition did not correspond, entirely, to attitudes. Since 1956, there has been an evolution in the attitude towards homosexuality between men, it being noteworthy that there was never any corresponding offence of homosexuality between women. Effectively, a gender distinction existed until the introduction of the Sexual Offences Act 2003, whereby the concept of “indecency between men” was finally abolished.
This development reminds me of a case in which I was involved in a short time ago. My client was the victim of serious Police Misconduct and pursued a complaint (that was not upheld) and a subsequent civil claim (for which he secured substantial damages and an apology). In line with the complaint findings, and following receipt of a formal letter of claim, the offending police force denied liability. In the circumstances, it was necessary to issue Court proceedings.
My client considered himself a man of good character and I described him as such in the Statement of Claim. In response to the claim, the police force filed a Defence in which they denied that my client was a man of good character on the basis that in July 2002, received an adult caution for an offence of “gross indecency” (a consenting homosexual act with another man aged between 18 – 21).
Indeed, my client accepted that he had received a caution in 2002 for Gross Indecency, a year before the final abolition of that offence. In truth, he (like many) believed the caution to be spent and “scrubbed” from the records. He was outraged that reference had been made to the caution which was clearly done to blacken his name and intended to scandalise.
I prioritised my client’s ongoing claim. Following settlement (my client received substantial damages and a formal letter of apology) I sought to have removed from both local and national police records, details of the index arrest but also of the caution for Gross Indecency. The deletion of records pertaining to the index arrest was straightforward. Deletion of the caution for Gross Indecency was not. My client had been arrested by British Transport Police but processed by another force. Following enquiries with this other force, I lodged an application for deletion with British Transport Police.
The grounds on which the application was based were not only that the caution was for an offence that had since been abolished, but also because of a failure to adhere to Guidance on the issuing of cautions.
The Guidance for the administration of a simple caution provides that the following criteria must be satisfied:
- The offender has made an admission of guilt.
- The offender understands the implications of accepting a caution.
- The offender consents to accept the caution.
For the purposes of clarification, the Guidance provides that an admission is “A clear and reliable admission to committing the offence or offences for which the simple caution is being given”.
As the Guidance makes clear, “Accepting a simple caution has potentially significant implications for an offender all of which must be explained to the offender before he or she is invited to accept it and the simple caution is administered”.
Specifically, the implications include:
- A simple caution is an admission of guilt to committing an offence and forms part of an offender’s criminal record.
- The simple caution forms part of an offender’s criminal record and a record will be retained by the Police for future use. It may also be disclosed in Court in any future proceedings.
- A simple caution may be disclosed to a current or prospective employer in certain circumstances.
- All information relating to simple cautions is retained on the Police National Computer (PNC).
Finally, the Guidance recognises that before the administration of a simple caution, a Police Officer should ensure that the offender has had the opportunity to receive free and legal independent legal advice in relation to the alleged offence.
On behalf of my client, I submitted the following;
- He did not, at any time, make any admission of guilt which would amount to “a clear and reliable admission to committing the offence”. Specifically, he disputed that the relevant conduct was such as to amount to an act of “gross indecency”, accordingly, on that basis alone my client was not eligible to be offered a simple adult caution.
- The full implications of accepting a Police caution were not explained to him. Specifically, my client was advised that a caution represented a “slap on the wrist”. Further and more worryingly, my client was told that the caution would last for “between 5-10 years”, which is clearly wrong, when the period is indefinite. The Guidance, by recognising that a simple caution has “potentially significant implications for an offender” repudiates the suggestion that a caution can ever be regarded as a “slap on the wrist”. Moreover, my client was not advised that the caution would form part of his criminal record, that it would be retained by the Police for future use, that it may be disclosed in any future Court proceedings, that it may form part of a disclosure to a current or prospective employer or that it would be retained on the Police National Computer. The failure to advise my client in these terms was a derogation from the accepted practice and misled my client into believing that it would be no more than a “slap on the wrist”.
- He was not at any stage given the option, at any time of receiving any legal advice.
After numerous reminders, my client finally received confirmation that his caution was deleted 12 months after submitting the application. My client was delighted; “Words can’t express how thankful I am to hear you had the caution successfully removed for me. I can now continue my life without the thought of it hanging over me”.
My job goes beyond winning compensation in the case I am instructed to pursue. Vindication, an apology, and removal of erroneous data from the Police database are of significant importance to my clients. In this case I was proud to be able to help remove the stain on my client’s name and good character caused by an improperly administered caution based on an ‘offence’ of sexual relations between consenting adults which we as a society have thankfully recognised is no crime at all.
Iain Gould - Actions Against the Police Solicitor 