The Future of Formal Warnings

In Lincoln v Attorney-General [2024] NZCA 515, the Court of Appeal examined the use and legality of formal warnings given by the New Zealand Police | Nga Pirihimana o Aotearoa. The appellant, who had complained to the Police about alleged offending by another person, sought to overturn a High Court judgment declining to judicially review two decisions of the New Zealand Police to issue formal warnings instead of prosecuting the alleged offender. 

The Police’s general instructions provide that formal warnings are available as an alternative to prosecution where the following requirements are met:

a)      The offender must be 18 years or over.

b)      The evidential test for prosecution (as set out in the Solicitor-General’s Prosecution Guidelines) must be met.

c)      The public interest must be in favour of a warning (taking into account the factors from the Solicitor-General’s Prosecution Guidelines).

d)      The offender must clearly admit to the offending or alleged behaviours.

e)      The offender must provide informed consent to take part in the warning process.

Police will also assess the seriousness of the charge and its suitability for resolution in this way.

In 2020, Mr Cavell had allegedly entered Richard Lincoln’s property, refused to leave and assaulted him. Mr Lincoln reported this to Police, who then issued a formal warning. The formal warning listed the allegation of common assault but noted that the decision had been made to issue a formal warning instead of prosecuting Mr Cavell.

Then in 2022, Mr Lincoln made another Police report alleging that Mr Cavell had breached a restraining order by texting Mr Lincoln and making a post on his business’ Facebook page. In response, Police issued another formal warning to Mr Cavell.

Mr Lincoln was unimpressed that Mr Cavell had not been prosecuted, and was further frustrated when the police withdrew the warnings against Mr Cavell in light of the High Court’s decision in S v Commissioner of Police [2021] NZHC 743, [2021] 3 NZLR 392. That case held that there was no statutory or common law power for Police to issue formal warnings in the absence of an ‘unequivocal admission’ of guilt and in the absence of clear internal guidance (which was only developed subsequent to that decision).

Mr Lincoln’s application for judicial review was declined by the High Court. The Court held that not prosecuting Mr Cavell was a justifiable exercise in prosecutorial discretion, and that Mr Lincoln’s natural justice rights had not been breached.

 As well as bringing a judicial review application, Mr Lincoln also privately prosecuted Mr Cavell on the grounds of two charges of contravening a restraining order.

 Mr Lincoln appealed on the grounds that the Judge was wrong to not find the warnings inherently unlawful. Mr Lincoln complained that formal warnings were constitutionally dangerous, providing an alternative to prosecution and absolving criminal liability for the warned person.

The Court of Appeal, however, agreed with the High Court, concluding that while warnings that affect the rights and interests of affected persons may be amenable to review on legality grounds, formal warnings are not inherently unlawful alternatives to prosecution. The Court made the following points:

1.      The Police policy governing the issuance of formal warnings is lawful. This policy requires the warned person’s consent, and does not inherently infringe on the rights and interests of the warned person.

2.      Formal warnings do not absolve the warned person of criminal liability. A warning is not synonymous with an acquittal or immunity from prosecution.

3.      Prosecutorial discretion – whether to commence or refrain from prosecution – is long recognised by law. The Solicitor-General’s Prosecution Guidelines provide a legal framework for exercising this  discretion. This means that the decision to issue a formal warning instead of filing charges will be lawful as long as it is consistent with the Guidelines.

4.      The Court distinguished S v Commissioner of Police. In S, there were concerns of the punitive effects on the employment of the warned person, in circumstances where there had not been an unequivocal admission of guilt.

Ultimately, the appeal was dismissed. The Court of Appeal also held that it was clear  Mr Lincoln had pursued the case for personal reasons. The High Court’s order that Mr Lincoln pay costs was therefore not disturbed.

Attempts to judicially review the exercise of prosecutorial discretion are rare, and always provide useful guidance about the exercise of that discretion. While the application for judicial review was unsuccessful, the Court of Appeal did place considerable weight on the Solicitor-General’s Prosecution Guidelines as a framework for decision-making.  That suggests that prosecution agencies will need to ensure that their own internal guidance is closely aligned with the Solicitor-General’s Guidance. In difficult cases, it may be prudent to take advice before making a final decision.

Article written by Whakaahurangi Gallgher, Maia Childs and Tim Bain

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