20,000 formal warnings under the microscope
Police issued more than 20,000 formal warnings between 2010 and 2020. The legality of the warnings was thrown into doubt after a High Court decision in 2021. Martin van Beynen looks at progress since.
For many people facing a possible criminal charge, a formal warning might be r–egarded as a big relief. According to police, formal warnings hold an individual to account and deter further offending “by showing them that the conduct is taken seriously and is recorded as part of their police history”.
The warnings are also useful for recording behaviour that provides context if the person offends again and can alert prospective employers entitled to ask for a police check.
(In the year to June 2019, police issued 68,449 warnings – about 32,000 for traffic offences – and in the 12 months to June 2023 issued 50,000 to 60,000 – 25,000 to 30,000 traffic – warnings. Not all warnings are formal warnings.)
The decision to issue a formal warning is, according to police, at the discretion of an officer “who has to assess the best option to support both the perpetrator and victim, to help prevent future harm”.
Before 2021, police had no protocol for issuing formal warnings for alleged serious offending, even though one was in place for minor offending.
For Mr S, a formal warning had dire consequences and his subsequent High Court challenge to the legality of formal warnings would cause police a major headache.
Mr S was a teacher and assistant dean at a New Zealand high school. He had known X, 15, who was a friend of his son, for several years and said he saw her as one of his family. She had a turbulent home life, was missing school and had mental health problems.
Mr S supported her with regular meetings, phone calls and text messages and his principal eventually told him to stop the text messages. He continued and, in 2018, during a 10-week period, he and X exchanged 1861 text messages – some accompanied with heart emojis.
He told her he loved her and bought her unwanted gifts. On one occasion, when X was in particular distress after telling her mother about sexual abuse by a third party, Mr S drove to her workplace and gave her a hug. He encouraged her to go police about the sexual abuse.
Police began investigating after being alerted to the relationship through other inquiries. X denied anything inappropriate or untoward had happened, although said she found Mr S’ behaviour “a bit weird” at times. During the police investigation the principal notified the Teaching Council of the inappropriate text messages and Mr S handed in his teacher’s certificate and resigned.
Police thought the hug constituted the crime of meeting a young person following sexual grooming, but for various reasons, not least of which was that X did not support a prosecution, decided not to charge Mr S. Instead police sent him a formal warning by letter in February 2019. At the same time they entered the warning on their National Intelligence Application (NIA) database.
The Police Vetting Service, over Mr S’ objections, then notified both the Teaching Council and Mr S’ current employer, an educational institute, about the formal warning, prompting Mr S’ High Court challenge.
His lawyer argued the police had breached Mr S’ right to natural justice as enshrined by the Bill of Rights and Justice Paul Davison, in a judgment released in April 2021, agreed.
Mr S should have been given adequate notice of the possibility of a formal warning and its entry on the police database, the judge ruled. Police should also have given him an opportunity to be heard “regarding that possibility and whether it was lawful”.
“The effect of the formal warning... resulted in the applicant being subjected to effectively the same legal and professional consequences as would be the case if he had been convicted of the grooming offence, without the applicant ever having had any opportunity of defending the allegations and notwithstanding that his responsibility for the alleged offending had not been either admitted or determined by a court,” Justice Davison said.
In answer to the question of whether police had a legal basis for issuing formal warnings at all, Justice Davison said there was clearly no power conferred by statute and although police had policies and procedures for warnings about minor offending, none existed for warnings regarding more serious offending.
In Mr S’ case, where he had made no admission, the police officers were placed “in the position of being investigator, prosecutor, and judge”, Justice Davison said.
While police had power to issue warnings under their inherent powers, they could not do so when the person did not admit the offending and where the formal warning had the same impact as a criminal conviction.
The decision was a shock to police. They had issued 20,000 formal warnings in the decade before the ruling. Perhaps most had been issued after an admission, but they had no way of knowing without going through each case.
In addition, if some alleged offenders could show the formal warnings affected their reputation and income-earning ability, did that open the floodgates to claims for damages and compensation?
Sex abuse campaigners were also disturbed by the decision, claiming the decision put the rights of offenders ahead of their victims. The warnings were useful in cases where victims would not or could not assist a prosecution, they said.
“The effect of the formal warning ... resulted in the applicant being subjected to effectively the same legal and professional consequences as would be the case if he had been convicted of the grooming offence, without the applicant ever having had any opportunity of defending the allegations and notwithstanding that his responsibility for the alleged offending had not been either admitted or determined by a court.”
Justice Paul Davison
Initially, police decided to appeal the decision but abandoned the appeal in August 2021, saying that after a closer consideration of the facts and legal issues, the rationale for continuing with the appeal no longer applied.
Superintendent Iain Saunders said he was confident a review of the formal warning policy would result in “staff delivering warnings consistently and fairly”.
“The case was unique and has provided police with an opportunity to review and develop our policy with the benefit and clarity provided by the High Court judgment,”
But was the case really unique? Saunders didn’t mention the 20,000 formal warnings given in the previous 10 years and few questions appear to have been asked about them.
A recent Christchurch case sparked renewed interest.
It involved former police officer Geoff Cavell and a former Timaru man called Richard Lincoln.
Lincoln was in a relationship with Cavell’s ex-wife and relations between him and Cavell were fractious, resulting in several incidents.
In 2020 and 2022, Lincoln complained to police about incidents he believed should have resulted in charges against Cavell.
Police believed they had enough evidence to prosecute Cavell but sent him formal warnings instead.
In a High Court challenge, Lincoln alleged the warnings amounted to an agreement between Cavell and police to stifle a prosecution, which was unlawful.
The High Court ruled the decision not to prosecute Cavell was a justifiable exercise of prosecutorial discretion, and police were under no obligation to consult with Lincoln before deciding whether Cavell would be prosecuted, she said. Lincoln is appealing the decision. An interesting feature of the case was the formal warnings issued to Cavell had to be withdrawn because they were deficient for the same reasons Mr S succeeded.
Police protocols have, since December 2021, required formal warnings to be supported by clear admissions of offending and informed consent to the formal warning process. Recipients are cautioned the warning will be recorded on the NIA (National Intelligence Application) database and could be disclosed by the Police Vetting Services.
Formal warnings can be contested up to four weeks after the warning and reviews outside that time can also be requested where personal circumstances change.
Press inquiries to the police media team about the fate of the 20,000 formal warnings were not very illuminating.
An initial response said only that “work to review historical formal warnings is ongoing while police ensure the amended policy is being adhered to, and that errors are rectified as soon as possible”.
When asked what the work actually entailed, the police media team replied that “police are in the final stages of an internal assessment of formal warnings issued historically at the time of Case
S v the Commissioner of Police. This assessment is informing the remedial process going forward in respect to historical formal warnings.”
Police were then asked what was involved in the internal assessment and why it has taken so long.
The answer: “There is no formal timeline for completing this process. Police will issue further information about the outcome of the assessment, and the way forward, when the current process is complete.”
However, Acting Superintendent Fleur de Bes later elaborated, saying police were, over the next four months, checking a selection of formal warnings identified following the initial assessment phase.
“The assurance process checks that the information recorded within the warning record/file meets the required standard. The files will be checked alongside the policy criteria (at the time the warning was issued), and S case law.
“Once this phase is complete, police will be able to provide an update on the findings,” she said.
And what about people who had been the subject of those 20,000 warnings? Had any sought revocation and claimed compensation after the S v Davison case?
De Bes said apart from S, who was paid his legal costs, only one other person had sought compensation for legal costs involved in challenging a formal warning that was removed.
She said the police minister would be fully briefed on the issue shortly.