Appeal from High Court judgment declining judicial review of police decisions to issue formal warnings rather than prosecute – Solicitor-General’s Guidelines for the Use of Warnings – Police Instructions for Formal Warnings – are formal warnings inherently unlawful as punitive alternatives to prosecution without statutory or common law authority?
Lincoln v Attorney-General [2024] NZCA 515
In June 2020, Richard Lincoln reported an incident to the police where Geoffrey Cavell allegedly entered his property, refused to leave and assaulted him. The police response was to issue Cavell a formal warning letter.
In September 2022, Lincoln reported Cavell to police for breaching a restraining order by sending a text message and posting on his business’ Facebook page. The police response was to again issue Cavell a formal warning letter.
Lincoln was unhappy with these outcomes and commenced judicial review proceedings to challenge the legality of the police decisions not to prosecute Cavell.
In July 2023, the police sent Cavell a letter informing him that the formal warnings had been withdrawn. This followed the High Court judgment in S v Commissioner of Police [2021] NZHC 743, [2021] 3 NZLR 392, which held there is no statutory or common law power for police to issue a formal warning in the absence of an unequivocal admission of offending by the offender.
Lincoln nevertheless pressed on with his judicial review claim.
The High Court considered three issues:
- Whether the judicial review application was entirely moot because the police had withdrawn the formal warnings (No)
- Did the formal warnings constitute an unlawful bargain not to prosecute Cavell? (No)
- Were the formal warnings issued in breach of Lincoln’s right to natural justice? (No)
Lincoln’s application was dismissed. He appealed.
The Court of Appeal noted that it was not concerned with the validity or effect of the warnings given to Cavell (which had since been withdrawn). The only potentially ‘live’ issue was whether formal warnings are an inherently unlawful alternative to prosecution without any statutory or common law authority.
Applicable principles: Criminal Procedure Act 2011, s 185 – Solicitor-General’s Guidelines for the Use of Warnings – Police Instructions for Formal Warnings – are formal warnings an inherently unlawful interference with the rights and interests of the warned person? (no) – does the issuance of a formal warning involve the exercise of a power to impose a punishment? (no) – do formal warnings absolve warned persons of criminal liability? (no) – recognition of prosecutorial discretion in common law and statute.
Held: The appeal is dismissed. Formal warnings are not inherently unlawful.
Note: The court noted that formal warnings were not immune from challenge. The exercise of prosecutorial discretion must itself be lawful. The legality of a formal warning will depend on the facts and in particular whether the warning can be said to be incidental to the exercise of prosecutorial discretion, the nature and form of the warning and the consequences of it.
0 Comments