Police appeal warning ruling

Police have appealed a decision by a High Court judge ruling that their much-used ‘‘formal warnings’’ are illegal.

But at the same time they are launching a review into the practice, to ensure the warnings are issued ‘‘consistently’’.

Stuff revealed in April that Justice Paul Davison had found that the warnings – issued 20,000 times in the past 10 years to people who hadn’t been convicted of any crime – had no basis in statutory or common law and were a breach of the Bill of Rights Act.

Davison’s ruling related to a high school teacher who had received a ‘‘formal written warning’’ for allegedly sexually grooming a 15-year-old female student.

Police believed they had enough evidence to prosecute, but decided not to because they did not want to ‘‘further stress’’ the alleged victim, who did not want to make a complaint.

The warning was recorded on the intelligence database and details were provided to the Teaching Council and an institute of technology during police vetting.

Police argued that they had the common law power to issue a formal warning as part of their ‘‘prosecutorial discretion’’ and that the power was used ‘‘fairly and properly’’.

But Justice Davison said the teacher had effectively been subjected to the same legal and professional consequences as if he’d been convicted. The judge set aside the warning, declared it unlawful and ordered it to be removed from the police database.

Davison went further, saying the current regime for issuing warnings ‘‘raises very serious natural justice concerns’’ and required a ‘‘careful examination ... most appropriately by Parliament’’.

In a statement released yesterday afternoon, police said an appeal had been filed against the ruling by Crown Law, on behalf of police.

‘‘We continue to provide staff with information concerning the proper approach to formal written warnings,’’ a spokesperson said.

At the same time, police announced they are launching a project to review the formal warning policy to ‘‘ensure it remains appropriate’’.

Jevon McSkimming, Deputy Commissioner for strategy and service, said the warnings were a ‘‘tool’’ police could use to resolve incidents without requiring court action.

‘‘They are intended to be an effective mechanism for holding an individual to account and deterring further offending by showing them that the offence is taken seriously and recorded as part of their criminal history,’’ McSkimming said.

‘‘Following [the High Court judgement] we recognise the importance of maintaining the public’s confidence in this important tool.’’

The project launched yesterday and would look at further policy development and what additional support and monitoring could be provided to staff to ensure formal warnings were consistently applied, he said.

‘‘The decision to issue a formal warning is at the discretion of an officer. It involves an assessment of the underlying factors of the incident to determine the best option to support both the perpetrator and victim, to help prevent future harm.’’

In the meantime updated guidance had been given to staff ‘‘reminding them of the conditions that must be met prior to a warning being issued’’.

The Police Association has called on police to stop issuing the warnings.

‘‘As the judge points out, by doing formal warnings without an admission of guilt ... they are playing investigator and judge really, which is inappropriate,’’ association president Chris Cahill said.

‘‘We continue to provide staff with information concerning the proper approach to formal written warnings.’’

Police spokesperson