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When are Offenders “Warned in Lieu of Prosecution”?

5 min read

The now famous case of the 23-year old NUS undergraduate who was administered a conditional warning by the police in lieu of prosecution for filming another student showering has regenerated debate about when police warnings are justified in criminal cases.

What is a police ‘warning’?

Warnings are one of the three possible outcomes to criminal investigations – the other two being charging in Court or no further action taken. A ‘warning’ is a similar concept to the ‘caution’ issued by the United Kingdom’s Crown Prosecution Service (CPS).

In Singapore, there are no prosecutorial guidelines issued by Attorney-General’s Chambers or the police on what category of cases are appropriate for warnings to be issued. The evidential difference between cases where warnings are issued as opposed to being charged in Court is also not known. The Court of Appeal has only stated that stern warnings are issued after investigations have been carried out with regard to the offence in question.1

Based on anecdotal observation, warnings are usually issued by law-enforcement agencies for relatively less serious offences, and/or where the person under investigation is a first offender. Where there are aggravating circumstances (eg. presence of multiple offences, value of items involved are high), warnings may not be appropriate.

The issuing of these warnings is not statutorily governed. However, authorities may, in cases of high public interest, briefly cite their reasons for warning instead of charging.
What is the difference between a stern and a conditional warning?

  1. Stern warnings (ie. no condition attached); and
  2. Conditional warnings (usually for 12 months or 24 months).2

Conditional warnings require the offender’s acceptance of conditions stated.3 The condition is typically for offenders to remain crime-free for a period of one year after the issuance of the warning (12-month conditional warning) or even two years (24-month conditional warning). One circumstance where a conditional warning is issued could be where there is the risk of the offender re-offending, although there are less compelling grounds to charge.

What happens if I refuse to accept the warning?

Where the police have informed you that you will be issued a warning, you have to admit to the offence and agree to be warned instead of prosecution. If on principle you decide not to accept, the Prosecution is able to charge you instead.

What happens to my court charges after I have been warned by the police?

Where a stern warning has been administered, the authorities will not take further action to prosecute the offender for the offence. However, in the case of conditional warnings, the authorities reserve the right to prosecute the original offence if there has been a breach of the condition or if there has been a fresh offence – especially where the fresh offence is similar to the first.4
When an offender has been charged and thereafter given a conditional warning, the prosecution can apply for a discharge not amounting to an acquittal.5 If the individual remains crime-free, for the stipulated period of the conditional stern warning, he will be granted a discharge amounting to an acquittal.6

Where an unconditional stern warning has been issued after being charged, the Prosecution will then apply for a discharge amounting to an acquittal, and thereafter withdraw the charge.7

An interesting question is whether a stern warning bars a subsequent private prosecution. There is no local authority on this. The position in the United Kingdom is that a stern warning would bar such private prosecution.9

Does acceptance of warning leave a “criminal record”?

A warning, conditional or stern, is not considered a criminal conviction since it is decided through an extra-judicial process. Offenders who are administered a warning will not have a ‘criminal record’ under the Registration of Criminals Act.

However, records of warnings are kept and maintained in the police database. It is unclear as to how long a stern warning is maintained by the police and how records of such warnings are shared amongst government agencies.

Should you reoffend in the future, the fact that you have been warned once for a similar offence may be a factor against you being warned again – on the basis that you did not learn from the chance given to you.

The relevance of warnings in future court cases

The High Court in GCO v Public Prosecutor [2019] SGHC 31 confirmed that “a warning – stern or conditional, has no legal effect in sentencing”. The Court stated that, “a stern warning is nothing more than an expression of the relevant authority’s opinion that the offender has committed an offence, and that if he were to subsequently engage in criminal conduct, leniency may not be shown to him and he may be prosecuted for the subsequent conduct.” As such, the Court stated that, “the recipient of the conditional stern warning cannot be heard to complain of being taken by surprise should he end up being prosecuted for the warned offence.”

Conclusion

For more legal advice on whether your police investigation is likely to result in court prosecution or a warning, contact one of our dedicated specialist criminal lawyers who will be able to give you quality advice and personal attention to your specific legal troubles.

1 Tan Eng Hong v Attorney-General [2012] SGCA 45 at [183].
2 Tan Hee Joek, “Be Warned of the Stern Warning” http://v1.lawgazette.com.sg/2013-09/843.htm accessed 18 June 2018.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid.
8 Public Prosecutor v A. Karthik [2017] SGDC 341 at [28].
9 The House of Lords barred a subsequent private prosecution following a stern warning stating that a prosecuting a person who had been led to believe that accepting a stern warning would remove the possibility of criminal prosecution amounted to an abuse of process. Jones v Whalley [2007] 1 AC 63.
10 Wham Kwok Han Jolovan v Attorney-General [2015] SGHC 324 at [44].
11 Id at [34].

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