10am on Wednesday 14 September 2016
Review finds wide variation in the use of pre-charge warnings by Police
In a report released today, the Independent Police Conduct Authority has found that, while the practice of issuing
pre-charge warnings to offenders has had a number of benefits, they are being used inconsistently and sometimes
inappropriately.
A pre-charge warning is an alternative to prosecution for offenders who have committed offences with a maximum penalty
of not more than six months’ imprisonment. It involves the use of Police discretion not to prosecute even though there
is sufficient evidence to do so. A pre-charge warning is issued after a person has been lawfully arrested for an
eligible offence, and other specific criteria are met.
The purpose of a pre-charge warning is to resolve offences where Police intervention is required, but there is no public
interest in taking the offender through the Court process. It is intended to be an effective mechanism for holding the
offender to account and deterring them, by showing them that the offence is being treated seriously and recording the
warning as part of their criminal history.
In May 2015, in the context of a more specific complaint, a Police officer in the Bay of Plenty raised concerns about
the way that the pre-charge warning policy was being applied locally.
The Authority’s investigation into the officer’s specific complaint identified a number of issues with pre-charge
warning policy and practice. As a result, the Authority undertook a wider review.
In the course of that review, the Authority examined available statistics on the use of pre-charge warnings, and
interviewed custody supervisors and front line staff in four Police districts about their perceptions of pre-charge
warning policy and practice in their local area.
The Authority has found that pre-charge warnings are a cost effective means of dealing with low level offending where
there is sufficient evidence to prosecute but no public benefit in doing so. It is also more effective than prosecution
in reducing reoffending by offenders who have not previously been before the courts.
However, the Authority has found that there are substantial and undesirable inconsistencies between Police districts in
the extent to which pre-charge warnings are used and the types of offenders to whom they are given.
“The inconsistencies in practice are mainly due to the broad nature of the Police pre-charge warning policy,” said Judge Sir David Carruthers, the Chair of the Authority. “The policy needs to be revised to provide clearer direction to officers.”
The Authority has drawn attention to a number of particular problems with current practice.
First, it is unclear whether victims must be consulted about the possibility of a pre-charge warning before it is given.
It is also unclear whether pre-charge warnings should be used when the victim is seeking reparation for financial loss
connected with the offence, since the giving of a pre-charge warning generally means that no reparation can be obtained.
Practice in both these respects is variable.
“The views of victims should always be sought and considered in cases where the decision is finely balanced or where
reparation is sought,”said Sir David. “Where the victim is seeking reparation, a pre-charge warning should never be given unless the victim agrees or the
payment of reparation is realistic and enforceable.”
There is also a lack of clarity about the extent to which pre-charge warnings should be given to offenders who have
previously been convicted or received a warning or Police diversion. In some cases, warnings are given to offenders with
substantial criminal histories.
The Authority has found that in some cases this may be justified, but has recommended to Police that the policy be
revised to make clear the circumstances in which this is justified.
During the review, the Authority noted that pre-charge warnings are more likely to be given to non-Māori offenders than
to Māori offenders. Statistics show that a much higher proportion of Māori offenders committing eligible offences have
previous criminal convictions.
“While the Authority has not come across evidence that clearly demonstrates differential treatment on the basis of
ethnicity is happening, the possibility that it could happen is enough to reinforce the need for more guidance on the
exercise of Police discretion in this area”, said Sir David.
ends