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Review of pre-charge warnings

14 September 2016

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-Maori offenders than to Maori offenders. Statistics show that a much higher proportion of Maori 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.

Public Report

Review of pre-charge warnings (PDF 493 KB)

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