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Subject Topic: Guidance on Police Caution Post ReplyPost New Topic
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Mizzy
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Posted: 15 October 2010 at 18:59 | IP Logged Quote Mizzy

Does anyone know if there is any guidance on when it is appropriate to issue a caution?
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Ron Barker
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Posted: 16 October 2010 at 01:52 | IP Logged Quote Ron Barker

Code C10: When a caution must be given

10.1 A person whom there are grounds to suspect of an offence, see Note 10A, must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or silence, (i.e. failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes, e.g.:

 

(a) solely to establish their identity or ownership of any vehicle;

 

(b) to obtain information in accordance with any relevant statutory requirement, see paragraph 10.9;

 

(c) in furtherance of the proper and effective conduct of a search, e.g. to determine the need to search in the exercise of powers of stop and search or to seek cooperation

while carrying out a search;

 

(d) to seek verification of a written record as in paragraph 11.13.

 



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Ron Barker
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Posted: 16 October 2010 at 03:39 | IP Logged Quote Ron Barker

Sorry Mizzy, I was half asleep.
 


Edited by Ron Barker on 16 October 2010 at 04:11


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Ron Barker
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Posted: 16 October 2010 at 03:40 | IP Logged Quote Ron Barker

CPS: You should refer a case to the police for a caution to be administered where the National Standards are satisfied. If the offender has not made a clear and reliable admission during the course of the police investigation, a caution cannot be administered and it would not, therefore, be appropriate to refer the case back to the police (R v Metropolitan Police, ex parte Andre Anthony Thompson TLR 18 December 1996). An admission obtained only during the administration of the cautioning procedure will not, in itself, be sufficient.


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Ron Barker
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Posted: 16 October 2010 at 03:55 | IP Logged Quote Ron Barker

A Simple Caution, (previous known as a formal caution, now renamed to distinguish it from a Condtional Coutions, is a non-statutory disposal for adult offenders. It may be used for cases involving first time, low-level offences where the public interest can be met by a Simple Caution. The administration of a Simple Caution for a recorded offence is treated as a sanction detection and an offence brought to justice (OBTJ).

  • The accurate recording of cautions can contribute to improved public confidence in the criminal justice system and also contributes towards reducing the likelihood of re-offending.
  • The police retain the authority to issue a Simple Caution in all cases other than those indictable only offences which meet the Threshold Test, as outlined in the Director's Guidance. These must be referred to the Crown Prosecution Service.

Police can also take early advice from the CPS at any point in an investigation on whether a Simple Caution is appropriate. The Director's Guidance states that "an investigating officer may wish to consult with a Crown Prosecutor in respect of any case where it is proposed to deal with an offender by way of a [Simple or Conditional] caution, reprimand or final warning."

  • Simple Cautions are a non-statutory disposal and the opportunity exists for police to exercise discretion in deciding to use them. Therefore it is not possible to set out definitive rules on the circumstances in which Simple Cautions are appropriate (for example that first time offenders should always be cautioned or particular offences should always result in a Simple Caution only). The questions to consider in each case are;
  • (a)whether a Simple Caution is appropriate to the offence and the offender;
  • (b)whether a Simple Caution is likely to be effective in the circumstances.
  • A simple caution May not be appropriate when the offender has received a Simple Caution, reprimand or warning for a related or similar offence in the past two years.2 In exceptional circumstances, where the matter is trivial or unrelated, a second Simple Caution may be given.

A simple caution has No statutory basis and can generally be given at the discretion of the police without reference to the CPS in all but indictable only offences.

Enforceable conditions cannot be attached to the caution

In most cases, a Simple Caution is a once and for all response to the offence committed.

In rare circumstances, further action may be taken against the offender for the same offence, for example;

  • where circumstances materially change criminal proceedings may be commenced;
  • where a private prosecution is brought (see for example Jones v Whalley (2005) EWHC 931 (Admin). If it was sought to introduce the caution as evidence of guilt on a subsequent private prosecution for the same offence it is overwhelmingly likely that the court would exclude it, whether under section 78 of PACE or at common law as an admission obtained by means of an inducement.
  • It is also important to note that a Simple Caution does not preclude the instigation of civil proceedings.

With the introduction of the statutory charging scheme, decisions to issue Simple Cautions must be made in accordance with the Director of Public Prosecutions' Guidance on Charging (the Director's Guidance).

Aims of the simple caution

The aims of the Simple Caution are:

  • to deal quickly and simply with less serious offences;
  • to divert offenders where appropriate from appearing in the criminal courts; and
  • to reduce the likelihood of re-offending.

Evidence of a person's Bad character

Legal advisors should bear in mind and should advise their client accordingly when they are considering whether to accept a Simple or Conditional Caution that although a caution is not a conviction it is an admission of guilt and may be used in evidence against them at any future proceedings under the provisions of the Criminal Justice Act 2003. See also: Bad character

R v Woodhouse, CA, 9 February 2009. W was facing trial on a charge of sexual activity with a child. Held: A single previous incident of exposure, resulting in a police caution, was properly admitted as bad character evidence notwithstanding its age (10 years previous) due to the similarities between the incidents. The fact that the earlier complainant gave evidence (described to be a ‘rare event’) did not render the proceedings unfair as W had had the opportunity to consider the victim’s witness statement prior to trial. (Transcript not yet available)

Section 98 of the 2003 Act, which defines "bad character" in the relevant chapter of the Act as being "evidence of, or of a disposition towards, misconduct". The use of the word "misconduct is not limited to previous convictions, nor to cautions. 

In Weir & Ors, R. v [2005] EWCA Crim 2866 (11 November 2005) The appellant was cautioned for taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978. The prosecution’s application to adduce this evidence was granted. The appellant challenged that decision at appeal. Held: the evidence of the caution was admissible pursuant to section 101(1)(g) because the defendant had in effect attacked the character of the complainant. The appeal against conviction was dismissed.

Simple cautioning process

Criteria for a Simple Caution

In considering whether a Simple Caution is appropriate, a police officer must consider the following facts:

  • Is there sufficient evidence of the suspect's guilt to meet the Threshold Test (as outlined in the Director's Guidance)?
  • Is the offence indictable only (and the available evidence meets the Threshold Test)? If the answer is 'yes', this disposal option must be referred to a Crown Prosecutor.
  • Has the suspect made a clear and reliable admission of the offence (either verbally or in writing)? An admission of the offence, corroborated by some other material and significant evidential fact will be sufficient evidence to provide a realistic prospect of conviction. This corroboration could be obtained from information in the crime report or obtained during the course of the investigation. A Simple Caution will not be appropriate where a person has not made a clear and reliable admission of the offence (for example if intent is denied or there are doubts about their mental health or intellectual capacity, or where a statutory defence is offered).
  • Is it in the public interest to use a Simple Caution as the appropriate means of disposal? Officers should take into account the public interest principles set out in the Code for Crown Prosecutor.
  • Is the suspect 18 years or over? Where a suspect is under 18, a reprimand or final warning would be the equivalent disposal.

If all the above requirements are met, the officer must consider whether the seriousness of the offence makes it appropriate for disposal by a Simple Caution.

Aggravating or mitigating factors

A Gravity Factors Matrix has been provided to assist officers in their decision making process. Officers should use the Matrix (which will be available on the Police National Legal Database) to determine the seriousness of the offence and to decide whether or not a Simple Caution could be used as an appropriate means of disposal. As the matrix makes clear, the questions to be asked in determining the seriousness of the offence are:

  • Are there any aggravating factors involved?
  • Are there any mitigating factors involved?

If the answer to either question is yes, then the seriousness of the case will either increase or decrease by one level. The seriousness of an offence is initially determined on a scale between 1 and 4 (with 1 being the least serious). This can only increase or decrease by one level, regardless of the number of aggravating/mitigating factors. This is because the highest severity available is level 4, so additional factors cannot be added on indiscriminately. If there is one of each (aggravating and mitigating), they simply cancel each other out.

Recording the admission

In order for there to be an adequate record of an independent admission of the offence, the details of the admission could be recorded by any of the following methods (which must be PACE compliant):

  • a tape recorded interview;
  • a record of the admission in the officer's notebook and signed by the suspect as an accurate record. This could cover any statement made by the suspect on arrest, after being cautioned;
  • a statement made by the suspect whilst in police detention (after being reminded they are still under caution) could be recorded in the custody record and signed by the suspect as an accurate record;
  • a contemporaneous interview under caution could be conducted in the absence of the suspect making a voluntary statement of admission, or for clarification where the statement does not meet the required evidential standard. The notes should be fully documented.

The victim

Before a Simple Caution can be given, it is important to try to establish:

  • the views of the victim about the offence;
  • the nature and extent of any harm or loss, and its significance, relative to the victim's circumstances;
  • whether the offender has made any form of reparation or paid compensation (although this would not be appropriate in some cases, such as offences of violence). Police officers should not become involved in negotiating or awarding reparation or compensation.

If a situation arises where a victim is prepared to make a full statement, which could be used to support a prosecution, and this is considered to be the most appropriate course of action, officers should refer to guidance on prosecutions. However if a Simple Caution is being considered as a more appropriate disposal, the reasons for this should be explained to the victim and the consequences of the Simple Caution outlined. The fact that a victim declines to support a prosecution (NCRS Rule D4) should not preclude the consideration of a Simple Caution.

Where there is a decision not to proceed with a prosecution but the case is still suitable for a Simple Caution, the victim may be asked if they will affirm their support for a Simple Caution as a suitable method of disposal. In these cases the victim could be asked to give a statement confirming the facts of the offence and stating in their own words that they are not prepared to support a prosecution through the courts, but would be satisfied if the matter was dealt with by way of a Simple Caution. Forces should consider issuing clear guidance to their staff to emphasise the option of a Simple Caution disposal in these cases, with due regard to the interests of justice and the ethical processes involved.

In some cases where a Simple Caution might be appropriate because of an admission, prosecution may still be required to protect the victim from further attention from the offender, and/or because the offence is too serious. The CPS operates a pro-active policy on certain types of offence, which encourages prosecutors to proceed with cases, even where the complainant does not support the prosecution.

In all circumstances where the views of victims are sought, care should be taken to ensure they are aware that although their views will be taken into account, they will not necessarily be conclusive to the outcome, as the final decision is at the discretion of the police and/or the CPS.

The victim must always be kept informed of the final outcome of the case. Depending on local arrangements this may be the responsibility of police or CPS.

Other Considerations

Does the suspect have any other cautions for similar offences? Both national and any locally held records must be checked before a Simple Caution is given, to ensure that the suspect's criminal record is known and up-to-date and to avoid inappropriate use of a Simple Caution. If the suspect has previously received a caution, then a further Simple Caution should not normally be considered. However, if there has been a sufficient lapse of time to suggest that a previous caution has had a significant deterrent effect (two years or more) then a Simple Caution can be administered. A Simple Caution can also still be administered if the subsequent offence is trivial or unrelated, or as part of a mixed disposal (as explained in paragraphs 38-39). If the suspect has previously received a Reprimand or Final Warning, a period of two years should also be allowed to elapse before administering a Simple Caution.

Has the suspect been made aware of the significance of a Simple Caution? If a Simple Caution is being considered, then the full implications must be explained to the suspect. Under no circumstances should suspects be pressed, or induced in any way to admit offences in order to receive a Simple Caution as an alternative to being charged.

Has the suspect given informed consent to being cautioned? If the suspect does not consent, then police may choose to continue with a prosecution. Officers must avoid any suggestion that accepting a Simple Caution is an "easy option". Similarly, every effort must be made to avoid any suggestion of the suspect being coerced into accepting a Simple Caution.

A Simple Caution should not be viewed as an appropriate method of disposing of offences by serving prisoners. It may be appropriate to carry out interviews in prison in exceptional circumstances (e.g. where an offender admits responsibility for a previously recorded crime where forensic or other substantial evidence exists which links the offender to that crime) or to gather intelligence.

Making the decision

When considering the suitability of an offence for disposal by Simple Caution, the decision should be referred to an officer of at least Sergeant rank (who may or may not be a Custody Officer) for approval. This officer must be unrelated to the investigation of the offence.

Once the approving officer is satisfied that the requirements for administering a Simple Caution have been met, they should give further consideration to:

  • if a Simple Caution is appropriate to the offence and the offender; and
  • if it is in the public interest to deal with the offence in this way.

Officers should take into account the public interest principles set out in the Code for Crown Prosecutors. Officers should not opt to take no further action (NFA) in circumstances in which the requirements of a Simple Caution are met.

When the approving officer has reached a decision in favour of issuing a Simple Caution, they should sign the custody record, or other suitable documentation, to say that they have approved this as the appropriate method of disposal. The history of the disposal decision must be fully documented.

Forces should establish a 'gatekeeper' role, which could be filled by a Custody Officer. In cases that are being considered by the police for charging by the Prosecution Team, gatekeepers should ensure that cases are fully considered for the appropriate disposal method and that a Simple Caution is administered where a case is clearly suitable.

Administering a simple caution

After the Simple Caution has been approved, it should be administered by someone who is suitably trained for this purpose and to whom the relevant authority has been delegated. This should not delay a person's release from custody where a suitable person is not immediately available. In these circumstances an officer of Inspector rank or above may determine an appropriate person to deliver the Simple Caution.

  • Wherever possible, Simple Cautions should be administered at the police station. In exceptional circumstances, they could be administered at another suitable place, for example at the home of an elderly or vulnerable offender in the presence of a friend, relative or other appropriate adult.
  • The suspect should not be pressed to make an instant decision on whether to accept the Simple Caution. They should be allowed to consider the matter, and if need be, take independent advice. In order to facilitate this, a suspect may be required to attend at a later date to enable the Simple Caution to be administered. Cautions clinics/surgeries are held in some areas as a means of streamlining and ensuring adequate supervision of the cautioning process.
  • Once the Simple Caution has been administered, the offender should sign a form accepting the terms of the caution and should be given a copy of a caution acceptance pro-forma to take away. The pro-forma should include the offender's personal details (including occupation) and should outline the details of the offence. It should also include information on the consequences of accepting a caution, as below. The form must explain that the offender's details can be passed to the victim, should they wish to pursue civil proceedings. The offender should sign to say that the terms of the Simple Caution are agreed, and the person administering the Simple Caution should also sign.

Consequences of receiving a simple caution

A Simple Caution is not a form of sentence (which only a court can impose), nor is it a criminal conviction. It is, however an admission of guilt. A Simple Caution forms part of an offender's criminal record and may influence how they are dealt with, should they come to the notice of the police again. Simple Cautions given for recordable offences are entered on the Police National Computer, where they are held in line with ACPO General Rules for Criminal Record Weeding on Police Systems.(IV) These Rules are under review, and will be replaced by Retention Guidelines later in 2005. The fact of the Simple Caution may also be cited in court in any subsequent court proceedings and can be quoted on a Standard or Enhanced Disclosure issued by the Criminal Records Bureau and thus can be made known to a prospective employer. Fingerprints and other identification data can also be held on databases to which the PNC has links.(V) Therefore the significance of the admission of guilt in agreeing to accept a Simple Caution must be fully and clearly explained to the offender.

This is particularly important where the offence is listed in Schedule 3 to the Sexual Offences Act 2003. Accepting a Simple Caution in relation to such an offence will result in the offender becoming a "relevant offender" for the purposes of the notification and registration requirements of Part 2 of the Act. In common terms, the offender will be put on the 'sex offenders register'. It is especially important that an offender is informed of the consequences of accepting a Simple Caution before accepting such a disposal for a sexual offence that makes them subject to these requirements. If the offender is not informed of this, they may, at a later date, have a case for having the Simple Caution removed.

Notifiable occupations are currently set out in Annex A of Home Office Circular 6/2006, which is available at Home Office. Where a Simple Caution is issued to someone employed in a notifiable occupation, this should be disclosed by the police to their employer in accordance with the guidelines set out in that circular. A list of notifiable occupations should be made available in the station.

Recording the caution

The accurate recording of all Simple Cautions is essential in order to avoid multiple cautioning and to ensure consistency. Simple Cautions must be recorded on the local custody system as well as on national information systems.

Simple Cautions must be entered on the Police National Computer (PNC) if they have been given for a recordable offence. Under the current ACPO Rules, Simple Cautions should be removed from the PNC after 5 years, provided there are no convictions on the record and no further Simple or Conditional Cautions have been given, except where the caution is accompanied by an "offends against vulnerable person" information marker. Under the new Retention Guidelines such records will be kept for longer periods of time. Non police users of PNC will have their access to the data restricted after a specific period of time. The time period will be determined by the nature of the offence rather than the vulnerability of the victim.

Decisions by the crown prosecution service

The instructions set out above apply to the police decision making process. Crown Prosecutors may be asked for advice on the suitability of using a Simple Caution disposal at any time. However there are three situations in which the CPS will need to make the decision on whether an offence is suitable to be dealt with by way of a Simple Caution:

  • when reviewing a case in which the police have charged the suspect during the roll-out of the statutory charging scheme; or
  • when examining indictable only cases referred to them by the police; or
  • when reviewing a domestic violence case which has been referred to them by the police because the Threshold Test has been met (see CPS Policy for Prosecuting Cases of Domestic Violence – February 2005).


Because of their inherent seriousness, indictable only cases which have met the Threshold Test are unlikely to be suitable for a Simple Caution. However in cases where it is not in the public interest to proceed with a prosecution, prosecutors should consider whether the case is suitable for a Simple Caution disposal before deciding to take no further action against the offender.

The Director's Guidance provides that where the decision of the CPS is that a person should be cautioned (whether Simple or Conditional Caution) this is mandatory and binding upon the police. If however it subsequently proves not to be possible to give the caution (for example, because the offender fails to attend or withdraws consent), the matter will be referred back the Crown Prosecutor, to determine whether the person is instead to be charged with the offence.

The prosecutor should record their decision whether to charge, caution (Simple or Conditional), NFA or otherwise on the rear of the MG3 form, including the appropriate monitoring sub-code indicating the reason for the decision. The MG3 is included as Appendix C to this circular.

Legal implications of receiving a simple caution

The Rehabilitation of Offenders Act 1974

Under the provisions of the Criminal Justice and Immigration Act 2008 Simple Cautions are become spent at the time they are given. See: Spent Cautions: Reprimands: Final Warnings

 Sex Offenders

A decision to issue a Simple Caution in cases involving sexual offences and those where the offender is known or believed to be at risk should not be taken without consulting other relevant agencies. A Simple Caution received on or after 1 May 2004 for a relevant sexual offence makes the offender subject to the notification requirements of the Sexual Offences Act 2003 for 2 years from the date of the Simple Caution. For further information on the notification requirements see Guidance on Part 2 of the Sexual Offences Act 2003. This is available at: Home Office

Note: In Jones v Whalley [2006] Crim LR 67] (a case where a private prosecution had been brought following the acceptance of a caution), the court stated that the caution is not a conviction and is likely to be excluded as admission of guilt at trial.

Evidence of bad character

Section 98 of the Criminal Justice Act 2003, which defines bad character in the relevant chapter of the Act as being "evidence of, or of a disposition towards, misconduct". The use of the word "misconduct" is not limited to previous convictions, nor to cautions.

In Weir & Ors, R. v [2005] EWCA Crim 2866 (11 November 2005) The appellant was cautioned for taking an indecent photograph of a child, contrary to section 1 of the Protection of Children Act 1978. The prosecution’s application to adduce this evidence was granted. The appellant challenged that decision at appeal. Held: the evidence of the caution was admissible pursuant to section 101(1)(g) because the defendant had in effect attacked the character of the complainant. The appeal against conviction was dismissed.

Previous conditional or absolute discharge

The warning remains a valid disposal even after a conviction where a conditional discharge or absolute discharge is given because sec 14 (1) Powers of Criminal Courts (Sentencing) Act 2000 states that where someone is convicted of an offence and is sentenced to an absolute or conditional discharge, the conviction is only considered a conviction for the purpose of making discharge and for any resentencing if he commits another offence during the currency of the conditional discharge. It is not considered a conviction for any other purpose.

 Benefits of a simple caution

Officers should consider the potential benefits of issuing a Simple Caution, as opposed to dealing with a case by no further action (NFA) or detected not proceeded (DNP).

  • An admission of guilt is necessary for a Simple Caution, and the knowledge that someone has made this admission may provide the victim with some resolution.
  • Once administered, a Simple Caution for a recordable offence appears on a person's criminal record and can be cited in future proceedings.
  • A Simple Caution (for a recorded offence) is a sanction detection and an OBTJ, which reflects the effort and resources expended by police in investigating the offence, successfully identifying the perpetrator, and contributing to victim satisfaction.

Group and multiple offences

The experience and circumstances of offenders involved in group offences can vary greatly, as can their degree of involvement. Consistency and equity are important considerations in the decision of how to deal with a case but each offender should be considered separately and different disposals may be justified. Where multiple related offences are considered, the decision to issue a Simple Caution or prosecute should be based on the most serious of those offences.

Mixed disposals

It is possible to use mixed disposals where an offender has committed multiple but unrelated offences as part of the same incident. Depending on the nature of the offence, other disposal options are also available, for example a formal warning for cannabis possession or a FPN for a penalty offence. For example, a person is arrested for being drunk and disorderly, and when searched in custody has in their pocket a large set of car keys that they may use to get into cars and steal from them. If the person admits that their intention was to steal from cars, they could be charged with 'going equipped to steal' and so could be issued with a Simple Caution for that offence if appropriate, and a Penalty Notice for the Drunk and Disorderly offence. The presence of a previous Simple Caution on the offender's record may not necessarily be seen as a deterrent to administering a further Simple Caution in this type of situation, provided is it not for a similar offence.

Any decision on issuing a Simple Caution as an element of a mixed disposal should be considered with regard to the Director's Guidance. As with all other charging decisions, once the case is passed to the CPS then the decision on disposals for all offences rests with the CPS.

Decisions to take no further action

Careful consideration should be given to whether a case meets the requirements for a Simple Caution before deciding to take no further action (NFA). Cases where NFA is the appropriate outcome are likely to be those which fail to meet the evidential or public interest requirements set out in the Code. Copies of the Code are available at www.cps.gov.uk for further guidance.

Taking no further action or giving an informal warning is not recorded or shown as an offence brought to justice and can have a negative impact on efforts being made to raise confidence in the criminal justice system for both victims and the general public. NFA decisions should be appropriately reviewed to ensure this disposal is not used as a 'soft' option.

Victim personal statement scheme

The Victim Personal Statement scheme (VPS) was introduced in October 2001. All victims of crime should be offered an opportunity by the police to make a Victim Personal Statement, in which they can tell criminal justice agencies about any support they might need and how the crime has affected them (for example physical, emotional or financial effects). If the victim has chosen to make such a statement, this can be used to capture additional information to inform the decision whether to issue a Simple Caution.

Civil proceedings

If a Simple Caution has been given and the victim requests the offender's name and address in order to institute civil proceedings, the information must be disclosed. Under the 1998 Data Protection Act, personal data is exempt from the non-disclosure provisions where the disclosure is required for the purpose of, or in connection with, any legal proceedings or future legal proceedings. This includes circumstances where the data is required in order to obtain legal advice.

Particular offence type

Special care and consideration should be given to victims of offences of personal violence. Since the introduction of the National Crime Recording Standard (NCRS) in 2002, when a victim claims a crime has been committed the crime is recorded without the need for corroborating evidence. This has led to increased recording of these types of offences. There are 3 categories of offences of personal violence, each with different characteristics.

Violence against the person(VAP)

Generally, where an offence of personal violence is not accompanied by any aggravating factors and where the victim does not support a prosecution, the offence may be suitable for disposal by Simple Caution, providing all other criteria are met. A proactive approach to dealing with this type of offence could avoid overuse of the NFA disposal where the victim declines to support a prosecution through the courts. The positive action outlined above in paragraph 13 would be an appropriate method of dealing with these types of cases.

Domestic violence

ACPO Guidance on Investigating Domestic Violence was published in 2004 by the National Centre for Policing Excellence and should form the basis for investigation of these offences. The recently revised CPS Policy on Prosecuting Cases of Domestic Violence should also be considered. Both of these documents advocate positive action in cases of domestic violence to ensure the safety and protection of victims and children while allowing the Criminal Justice System to hold the offender to account. The ACPO Guidance stresses that an effective and proactive investigation should be completed in all cases where a domestic violence incident is reported. The CPS Policy also stresses the need for a proactive approach to the prosecution of cases of domestic violence. The drive is for consistency from investigation through to charge.

Taking forward a prosecution does not depend solely on the victim's wishes. The evidential and public interest tests need to be considered and it may be that although the victim does not support the prosecution, it can still go ahead. Where police forces are operating this positive action policy on domestic violence, in some circumstances officers have experienced difficulty in securing a charge/summons when the victim does not want to proceed with a prosecution. Forces need to have a system in place to ensure that Simple Cautions are considered in preference to an NFA decision, as a potential disposal in the absence of a charge/summons, to gain the benefits detailed in paragraph 36.

Harassment (racial or other)

The National Centre for Policing Excellence is producing a set of investigative standards for harassment.

The two considerations for Simple Cautioning in harassment cases are:

  • (i) that administering a Simple Caution will render all conduct on which the caution is based inadmissible as evidence towards a course of conduct should this continue subsequently; and
  • (ii) that since a restraining order may only be issued by the court, the only way in which a victim would be protected against future conduct would be by seeking an anti-harassment injunction from a civil court (which has the same effect as a restraining order and provides a power of arrest in the event of any breach). In cases of aggravated harassment, a prosecution should be pursued.

For these reasons, the views of the victim should be fully considered and a Simple Caution should only be administered where the police are confident that the harassment will not continue subsequently.

Summary of key points

Flow chart

Home Office Circular Number 30 / 2005

AM, R (on the application of) v The Chief Constable of West Midlands Police [2010] EWHC 1228 (Admin) (28 May 2010) A caution was administered to him. No interpreter was present; the Claimant was not accompanied by a legal representative.

H, R (on the application of) v Guildford Youth Court [2008] EWHC 506 (Admin) (03 March 2008) Conviction quashed where promise of final warning was given to applicant at the police station prior to interview where admissions were made. The Crown opposed the application to stay the case as an abuse of process when the argument was raised at the magistrates' court, but did not resist the judicial review.

Jones v. Whalley [2006] UKHL 41 (26 July 2006) It was an abuse of the court’s process for a private prosecution to be brought against a person after he had accepted a formal caution by a police officer on the express assurance that, if he agreed to be cautioned, he would not have to go before a criminal court in connection with the offence. The House of Lords so held when allowing an appeal by Stephan Whalley from the Divisional Court in Jones v Whalley which had allowed an appeal by Lawrence Jones by way of case stated from Justices sitting at St Helen’s who on 25 October 2004 had stayed his private prosecution against Mr Whalley for assault occasioning actual bodily harm as an abuse of the court’s process. LORD BINGHAM OF CORNHILL said that, although it was correct that Part I of the Prosecution of Offences Act 1985 did not preclude the bringing of a private prosecution, save where the Director of Public Prosecutions was obliged or chose to take over the conduct of proceedings, and a police officer’s decision to caution rather than to prosecute an offender could not deprive a private prosecutor of his right, that did not answer the question whether Mr Jones’ prosecution was an abuse of the court’s process. What had to be considered was the effect of the officer’s assurance on Mr Whalley. He was led to believe that if he agreed to be cautioned he would not be prosecuted for that offence. Mr Jones could have challenged the lawfulness of the caution and, if successful, he would have been free to bring his prosecution. But so long as the formal caution stood it was an abuse of the court’s process for the trial to proceed. The justices had been correct. He would dismiss the appeal on that narrow ground. A broader question, not argued below or raised in Mr Whalley’s case, was argued by him: whether a private prosecution could or should survive the implementation of a formal cautioning procedure which had not been quashed or set aside. While seeing considerable force in that argument His Lordship neither accepted nor rejected it: it was inappropriate to determine it on the present appeal.

R (on the application of Wyman) v Chief Constable of Hampshire Constabulary, AC, 24 July 2006. This is a very interesting case about a student arrested, interviewed and subsequently cautioned by the police for an offence of sexual assault. He later applied for the caution to be quashed and all records of it expunged on the grounds that the correct procedure had no tbeen followed and that it could not properly be said that he had made an admission to all of the requisite elements of the offence. This case potentially has very far reaching consequences for the police in relation to the procedure that should be followed in future cases, which requires a very detailed procedure in accordance with Home Office guidelines. Rich pickings for lawyers one suspects.

Atkinson, R (on the application of) v Lancashire Constabulary [1998 EWHC Admin 145 (5 February 1998) It is possible to give a caution after an inadmissible confession but good sense in practice required police officers to obtain an admission on tape first.

Thompson, R (on the application of) v Metropolitan Police [1996] EWHC Admin 379 (18th December, 1996)

This is the judgment of the court. Before us is an application for Judicial Review of a decision to administer a formal caution to the Applicant and also of a decision not to withdraw that caution. It raises an important point of widespread application. A Caution will not be adopted as a method of disposal unless the person accused of the crime admits his guilt. The point raised in the present case is whether the provisions of our law which render inadmissible in criminal proceedings confessions obtained as a result of an inducement are applicable by analogy to the cautioning procedure. In particular whether the court should quash a Caution administered after a confession of guilt which follows an inducement to make that confession - namely a bargain in effect held out by the police :”If you confess your guilt and are willing to be cautioned then I will see to it that you are not charged and prosecuted but cautioned instead.”?

29. It is clear from the Guidelines issued by the Home Office in particular Note 2(D) that consent to the caution should not be sought until it has been decided that cautioning is the correct course. It is clear from paragraph 2 of those Guidelines that cautioning is only the correct course where the offender admits the offence. Taken as a whole the Guidelines show that the decision to try and proceed by way of caution should be made before any question of seeking the consent of the offender arises. Since an admission of guilt is a pre-condition to a decision to administer a caution, there should in practice be such an admission before formal consideration is given to proceeding by way of caution. In our judgment it is not proper to seek an admission of guilt as part of the cautioning process itself although it is perfectly proper to acknowledge on the record of caution that the offence has been admitted.

DPP v Ara [2001] 4 All ER 559 [2002] 1 WLR 815 The polices failure to provide a solicitor with a copy of his clients record of a taped interview amounts to an abuse of process. The Divisional Court heard an appeal by the prosecution by way of case stated in respect of a justices’ order for the stay of proceedings for abuse of process by reason of the non disclosure of interview notes to the applicant’s solicitor to facilitate advise to the applicant as the issue of a caution. It is important to note the facts of the case. After interview the investigating officer advised the applicant that he would be recommending a caution, subject to verification by his supervising officer. The police refused to disclose the interview notes to the applicant’s solicitor so that he could advise the applicant in relation to the caution. The applicant later attended the police station where a caution was to be offered, subject to verification. However the applicant’s solicitor advised the applicant not to consent to the caution as the interview notes had been withheld and the supervising officer charged the applicant. The Divisional Court held that the police had a duty to disclose a previous interview to a suspect’s solicitor so that the solicitor could advise the suspect whether or not to consent to a caution. It is apparent that the action of the police in refusing disclosure of the interview had effectively prevented the matter from proceeding by way of caution.



Edited by Ron Barker on 16 October 2010 at 05:35


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Mizzy
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Posted: 16 October 2010 at 05:06 | IP Logged Quote Mizzy

That is great Ron. Do you have anything on conditional cautions?
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Ron Barker
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  • Revised Code of Practice for Conditional Cautions – Adults
  • CPS Conditional cautioning incorrect or inappropriate decisions
  • Home Office Conditional Cautioning – DIP Condition FAQs
  • CPS Conditional Cautioning Code Of Practice
  • CPS Diversion From Prosecution
  • CPS Conditional cautioning
  • CPS Director's Guidance on Conditional Cautioning
  • CPS Annex A: Offences that may be Conditionally Cautioned
  • CPS Abuse of process
  • CPS: Director's Guidance on Conditional Cautioning Guidance to Police Officers and Crown Prosecutors issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984 Fifth Edition: October 2007
  • The Director's Guidance on Conditional Cautioning Guidance to Police Officers and Crown Prosecutors issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984: Fifth Edition: October 2007

Criminal Justice and Police Act 2006

Section 17: Conditional cautions: types of cautions

Section 17 amends Part 3 of the Criminal Justice Act 2003, which provides for conditional cautions. These are cautions to which specified conditions are attached. A conditional caution may only be given if a prosecutor considers that there is sufficient evidence to prosecute the offender and if the offender admits the offence and agrees to a conditional caution being imposed. A conditional caution is an alternative to prosecution for low-level offending, but if the offender breaches the conditions he is liable to be prosecuted for the original offence.

The purpose of section 17 is to widen the scope of the conditions that can be attached to a conditional caution. Currently, section 22(3) of the 2003 Act provides that the conditions which can be attached to a conditional caution must have the object of facilitating the rehabilitation of the offender or ensuring the offender makes reparation for the offence. Subsection (2) substitutes an expanded section 22(3) that provides that, in addition, a conditional caution may contain conditions which have the object of punishing the offender.

Subsection (3) inserts new subsections (3A), (3B) and (3C) in section 22 of the 2003 Act. New subsection (3A) provides that the conditions that may be included in a conditional caution may include the imposition of a financial penalty and/or a requirement for attendance at a specified place at a specified time (which might include completion of a specified activity). The provision for a financial condition is subject to new section 23A.

New subsection (3B) provides that where a condition involves an attendance requirement, the maximum number of hours is restricted to no more than 20 hours in total. This 20 hour limit does not apply to an attendance requirement imposed for the purpose of facilitating the offender's rehabilitation. This is to permit rehabilitative conditions involving, for example, drug or alcohol treatment programmes that may take longer than 20 hours in total. By virtue of new subsection (3C) this figure of 20 hours may be amended by order (subject to the affirmative resolution procedure).

Subsection (4) inserts a new section 23A into the 2003 Act. This new section makes provision in relation to a condition that the offender pay a financial penalty, called a "financial penalty condition". Subsection (1) of new section 23A specifies that a financial penalty condition may not be attached to a conditional caution given in respect of an offence unless the offence in question is one prescribed, or of a description prescribed, in an order made by the Secretary of State. Section 23A(2) requires that an order under section 23A(1) must also specify the maximum amount of the financial penalty that may be specified for each offence or description of offence. Subsection (3) of new section 23A provides that the maximum financial penalty prescribed for an offence must not exceed 25% of the maximum fine available for the offence in question on summary conviction in a Magistrates' Court (in the case of a level 5 fine (£5000) this would amount to £1250) or £250, whichever is the lower. Subsection (4) of the new section 23A provides that these limits may be amended by order (subject to the affirmative resolution procedure save where the £250 limit is being updated only to account for inflation in which case the negative procedure applies). Subsections (5), (6), (7), (8) and (9) of the new section 23A also specify the method of payment of any financial penalty condition imposed. The financial penalty condition is intended to be a requirement to pay money that is imposed for the purposes of punishing an offender. It does not alter the existing position in which an offender can be required to pay compensation to victims for the purpose of making reparation for the offence, or to pay a sum of money to a charity by way of indirect reparation to the community.

Section 18: Arrest for failing to comply with conditional caution

Section 18 Subsection (1) inserts a new section 24A into Part 3 of the Criminal Justice Act 2003 to give a constable a power of arrest without warrant where an offender is suspected of having breached the conditions of a conditional caution without reasonable excuse, in order to enable a quicker, more effective means of facilitating prosecution for the original offence.

Where a person is arrested under new section 24A(1), it will be for a prosecutor to determine whether he has failed to comply with the conditions attached to his caution and, if so, whether there was a reasonable excuse for doing so. If the person has failed to comply without a reasonable excuse, he can then be charged with the original offence in respect of which the conditional caution was given (new section 24A(2)(a)). Where further investigations are necessary to establish the circumstances of the suspected non-compliance with conditions, the offender may be released without charge and on bail (new section 24A(2)(b)).

Alternatively, the offender can be released without charge and without bail and with or without any variations in the conditions attached to the caution (new section 24A(2)(c)). This course of action could result if the prosecutor determined that there was a reasonable excuse for the non-compliance or that there had been no actual non-compliance.

New section 24A(5)(a), read with new section 24A(6), provides that the offender may be kept in police detention in order to be dealt with under section 24A(2). For example, a person might be detained until a relevant prosecutor is available to make a charging decision, or where further investigations are necessary to establish if the person has failed to comply with the conditions attached to the caution.

By virtue of new section 24A(3) these procedures also apply where an offender returns to the police station having been bailed for investigation of suspected non-compliance with a condition and in certain other circumstances where the offender is detained by the police.

Section 18 also inserts a new section 24B into Part 3 of the Criminal Justice Act 2003. This provides that certain provisions in PACE apply with the modifications identified to offenders arrested for suspected breach of a conditional caution as they do to offenders arrested in respect of an offence.

 Criminal Justice Act 2003

The Conditional Caution is a statutory disposal introduced by the Criminal Justice Act 2003. It is a form of caution given in respect of an offence committed by the offender and has conditions attached to it. If an offender fails without reasonable excuse to comply with the conditions attached to the Conditional Caution, the Act provides for criminal proceedings to be instituted for the original offence and for the Conditional Caution to be cancelled.
See: Conditional Cautions
Section 22 to 27 Criminal Justice Act 2003

The major differences between a Simple caution and a Conditional Caution can be summarised as follows:

Simple Caution

  • No statutory basis – generally at the discretion of the police.
  • Can be given by the police without reference to the CPS in all but indictable only offences.
  • Enforceable conditions cannot be attached to the caution.
  • In most cases, a Simple Caution is a once and for all response to the offence committed. In rare circumstances, further action may be taken against the offender for the same offence, for example;
  • (a) where circumstances materially change criminal proceedings may be commenced;
  • (b) where a private prosecution is brought.
  • It is also important to note that a Simple Caution does not preclude the instigation of civil proceedings.
  • Public interest is met by a Simple Caution.


Conditional Caution

  • The decision to offer a Conditional Caution must be made by a relevant prosecutor (generally the CPS).
  • The offender is liable for prosecution for the original offence if the conditions of a Conditional Caution are not complied with.
  • The Prosecutor considers that, while the public interest justifies a prosecution, the interests of the suspect, victim and community may be better served by the suspect complying with suitable conditions aimed at rehabilitation and/or reparation. The CPS should be prepared to prosecute the offender for the original offence if the conditions are not satisfactorily completed, or the offender refuses the Conditional Caution.

A Conditional Caution is not to be considered as the next "automatic" step for an offender who has previously received a Simple Caution. Indeed, a person who has recently received a Simple Caution for a similar offence should not be given a Conditional Caution (unless exceptionally it is believed that the condition would be effective in breaking the pattern of offending).

 Consequences of receiving a Simple Caution

Conditional Caution is not a form of sentence (which only a court can impose), nor is it a criminal conviction. It is, however an admission of guilt. A Conditional Caution forms part of an offender's criminal record and may influence how they are dealt with, should they come to the notice of the police again. Conditional Cautions given for recordable offences are entered on the Police National Computer, where they are held in line with ACPO General Rules for Criminal Record Weeding on Police Systems. Code of Practice on the Management of Police Information. Note: Conditional Cautions are not covered under the Rehabilitation of Offenders Act 1974 and therefore, never become spent.

The fact of the Conditional Caution may also be cited in court in any subsequent court proceedings and can be quoted on a Standard or Enhanced Disclosure issued by the Criminal Records Bureau and thus can be made known to a prospective employer. Fingerprints and other identification data can also be held on databases to which the PNC has links. Therefore the significance of the admission of guilt in agreeing to accept a Simple Caution must be fully and clearly explained to the offender.

This is particularly important where the offence is listed in Schedule 3 to the Sexual Offences Act 2003. Accepting a Conditional Caution in relation to such an offence will result in the offender becoming a "relevant offender" for the purposes of the notification and registration requirements of Part 2 of the Act. In common terms, the offender will be put on the 'sex offenders register'. It is especially important that an offender is informed of the consequences of accepting a Conditional Caution before accepting such a disposal for a sexual offence that makes them subject to these requirements. If the offender is not informed of this, they may, at a later date, have a case for having the Conditional Caution removed.

Notifiable occupations are currently set out in Annex A of Home Office Circular 6/2006, which is available at Home Office. Where a Conditional Caution is issued to someone employed in a notifiable occupation, this should be disclosed by the police to their employer in accordance with the guidelines set out in that circular. A list of notifiable occupations should be made available in the station. Where a person is cautioned for a relevant offence, the notification period is two years. See: Section 80(1)(d) and section 82 Sexual Offences Act 2003.

 Previous conditional or absolute discharge

The warning remains a valid disposal even after a conviction where a conditional discharge or absolute discharge is given because section 14(1) Powers of Criminal Courts (Sentencing) Act 2000] states that where someone is convicted of an offence and is sentenced to an absolute or conditional discharge, the conviction is only considered a conviction for the purpose of making discharge and for any resentencing if he commits another offence during the currency of the conditional discharge. It is not considered a conviction for any other purpose.

 Evidence of a person's Bad character

Legal advisors should bear in mind and should advise their client accordingly when they are considering whether to accept a Simple or Conditional Caution that although a caution is not a conviction it is an admission of guilt and may be used in evidence against them at any future proceedings under the provisions of the Criminal Justice Act 2003.

Section 98 of the 2003 Act, which defines bad character in the relevant chapter of the Act as being "evidence of, or of a disposition towards, misconduct". The use of the word "misconduct is not limited to previous convictions, nor to cautions. 

Note: In Jones v Whalley [2006] Crim LR 67 (a case where a private prosecution had been brought following the acceptance of a caution), the court stated that the caution is not a conviction and is likely to be excluded as admission of guilt at trial.

 The following requirements must be complied with:

The authorised person has evidence that the offender has committed an offence
This will be the evidence on the basis of which the suspect would otherwise fall to be charged, which must include an admission made under caution in interview and any witness statements. In order to avoid any suggestion that an admission has been obtained by offering an inducement, the prospect of a Conditional Caution should on no account be mentioned until the suspect has made a clear and reliable admission under a cautioned interview to all the elements of the offence.

The relevant prosecutor decides - that there is sufficient evidence to charge the offender with the offence, and that a Conditional Caution should be given to the offender in respect of that offence
NB Solicitors are bound to give ‘informed’ advice and must continue to demand disclosure of sufficient evidence and advise against admissions if a case is not made out. If there is and a charge is preferred and the evidence is thereafter made good, it is improper to prosecute to conviction and the matter should be returned for reprimand warning or caution (DPP v Ara [2001] 4 All ER 559).

The relevant prosecutor will apply the evidential test in the usual way according to the Code for Crown Prosecutor. ie that there would be a realistic prospect of conviction if the offender were to be prosecuted. The prosecutor must also conclude that the public interest would be served by the offender receiving a Conditional Caution, if he accepts it and subject to his performing the agreed conditions. In addition, since the fall-back is that the offender will be prosecuted if he either does not accept or fails to perform the conditions, the prosecutor must be satisfied that prosecution would be in the public interest in those contingencies.

The offender admits to the authorised person that he committed the offence
In addition to the admission made in interview (see above), it is necessary that at the time the Conditional Caution is administered the offender admits to the authorised person that he committed the offence. Offenders should be advised at that point of their right to seek legal advice to ensure they give informed consent to accepting both the caution and the conditions, whether or not they have availed themselves of that right at an earlier stage.

The authorised person explains the effect of the Conditional Caution to the offender and warns him that failure to comply with any of the conditions attached to the caution is likely to result in the offender being prosecuted for the original offence
The implications of the caution should be explained, including that there are circumstances in which it may be disclosed (such as to certain potential employers, and to a court in any future criminal proceedings) and, where the offence is listed in Schedule 3 Sexual Offences Act 2003, that accepting a caution will result in the offender being required to notify the police of their name and address and certain other details.

There should not be any bargaining with the offender over the conditions: if he does not accept them in full, he should be prosecuted.

It should be made clear in explaining the consequences of non-compliance that the conditions are to be performed within the agreed time. It must be explained clearly that failure to comply will prompt a reconsideration of the case and usually result in the offender being prosecuted for the original offence.


The offender signs a document which contains -

  • details of the offence,
  • an admission by him that he committed the offence,
  • his consent to being given the Conditional Caution,
  • an agreement to comply with the conditions attached to the caution, which must be set out on the face of the document, and
  • an explanation of the implications referred to above.

After the offender has admitted to the offence and, having heard the explanation referred to above, has agreed to the conditions, he must sign a pro-forma to this effect. A standard form is available and must be used by all forces. This document will contain details of the offence, the offender's admission, and the conditions and timescale for completing them to which he has agreed. It must be explained to the offender before the form is signed that it will be admissible as evidence in court if the offender is subsequently prosecuted for the original offence in the event of non-compliance.

An authorised person is a constable, a designated civilian investigating officer or a person authorised by by the relevant prosecutor. See: Section 22(4) Criminal Justice Act 2003. The relevant prosecutor is defined under Section 27 Criminal Justice Act 2003

Types of condition

Conditions attached to a caution must be -
Proportionate to the offence. The offender is unlikely to agree to a condition that is more onerous than the sentence that would probably be imposed if the case were taken to court. On the other hand, conditions that amount to far less than the punishment that would be probably be given by a court are unlikely to satisfy the public interest or engender confidence in the criminal justice system.

Achievable: the conditions must be clearly defined in terms of what must be done and within what period of time. Conditions must be realistic and should take account of the particular offender's circumstances, including physical and mental capacity, so that he could reasonably be expected to achieve them within the time set; otherwise the only result will be a delayed prosecution. Appropriate: the conditions should be relevant to the offence or the offender or both.


The Act requires that conditions should fall into one or both of two categories: rehabilitation and reparation.

Rehabilitation: this might include taking part in treatment for drug or alcohol dependency (e.g. attendance at self-help groups provided it can be verified, or on a drug awareness and education programme including assessment of personal needs and appropriate onward referral), anger management courses, or driving rectification classes and the like, or involvement in a restorative justice process (which may lead to reparation). The offender would be expected to pay reasonable costs, if there are any, and a requirement to do so should be one of the conditions. Where the offender cannot afford to pay and this rules out a particular condition, every effort should be made to identify an alternative. The fact that provision of some sorts of course may be subject to resource implications (and possibly a waiting list) will need to be taken into account, bearing in mind that completion of any conditions should be swift and achievable within a reasonable time.

Reparation: this might include repairing or otherwise making good any damage caused to property (e.g. by cleaning graffiti), restoring stolen goods, paying modest financial compensation, or in some cases a simple apology to the victim. Compensation may be paid to an individual or to the community in the form of an appropriate charity.

Offenders should be required as standard to comply with a condition not to commit further offences until the conditions have been performed.

Specific conditions such as that the offender should avoid a particular street or public house may be included, but consideration should also be given as to whether alternatives such as Anti-Social Behaviour Orders or Restriction Orders etc would be more appropriate or timely.

The police, CPS and National Probation Service (NPS) should take steps at local level (e.g. through the Local Criminal Justice Board or Crime & Disorder Reduction Partnership) to identify agencies, groups or organizations, voluntary or statutory, which provide courses or other activities that might form part of a Conditional Caution, and which it may be appropriate to consult when deciding whether a case is suitable for a Conditional Caution. The NPS could be approached in appropriate cases to assist in determining whether certain offenders are suitable for a Conditional Caution, for example where there are concerns about the health, behaviour or background of the offender.

When conditions are imposed that require the performance of some task other than the simple payment of compensation or the attendance on a course supervised by an organization responsible for monitoring attendance, careful thought should be given to how performance will be measured and who will be the appropriate person to give assurances that the condition has been completed. This should be documented as part of the description of the condition, in order that the relevant prosecutor and the offender are in no doubt as to the conditions and the measurement of performance.

 Time Limits

The deadline for the completion of conditions should not be too long. This is particularly important in relation to summary offences, for most of which there is a time limit of six months within which a prosecution must commence; for these offences the deadline set should leave enough time for a prosecution to proceed in the event of non-compliance.

Where the condition is for an offender to go on a course of treatment for behaviour/ substance abuse, which may take longer than six months to deliver, the relevant prosecutor will need to consider whether this is appropriate, depending on the attitude of the offender and the likelihood of compliance. There is no reason why undertaking a course of longer duration should not be a condition, provided that (to satisfy the reasonableness test) the offender is only required under the terms of the Conditional Caution to attend for part of it. For example, a course may last 12 months to achieve best results. In such a case, the offender might agree, under the conditions of his caution, to attend for 4 months, and thereafter it will be up to him to continue the treatment for his own benefit, rather than under any legal compulsion.

Involvement of victims

In the course of interviewing the victim about the offence, it would be important to ascertain whether any resulting loss, damage or injury is such that it could readily be made good; what the victim's attitude would be towards an offer of reparation from the offender, should one be made; and whether they would be content for such reparation to be made the condition of a caution. Where a caution (simple or conditional) is at that stage regarded as a possibility, the fact may be mentioned to the victim in order to ascertain their views, but it is vital not to give the impression that the victim's views (if any) will be conclusive as to the outcome, which (it should be explained) is at the discretion of the CPS. In some circumstances the relevant prosecutor may consider that in order to be proportionate to the level of the offence, conditions should be more or less onerous than those the victim would accept, in which case the prosecutor should consider whether some explanation to this effect will be helpful to the victim or to the offender.

The Victim Personal Statement (VPS) scheme provides victims with the opportunity to describe the effects of the crime and to have these effects taken into account as the case progresses through the criminal justice system. If it is subsequently proposed to approach the victim for an interview specifically about Conditional Cautioning, the contents of the VPS (if he or she has made one) should be considered beforehand, but it should not be considered sufficient, on its own, to inform a decision to pursue a restorative justice route.

Further information and guidance on the victim personal statement scheme can be found on the Home Office website at: Victim’s personal statement

Restorative justice

Restorative justice processes bring victims and offenders, and sometimes community members, into contact, either face to face or indirectly, to focus on the impact of a particular crime, and together to agree what can be done to repair the harm caused by that crime. Such processes must always be voluntary for both the victim and the offender. Any person delivering a restorative process, including preparatory work with victims and offenders, must be trained in restorative justice and must meet the required standards. See guidance on this at Restorative Justice

Restorative justice processes can be used as a condition of the caution (where the contact with the victim, direct or indirect, is itself the condition) if both victim and offender consent to this. Alternatively, they can be used as the decision-making process whereby conditions, such as compensation, rehabilitative activities, or other kinds of reparation, are agreed. It should be noted that in this second case, the 'outcome agreement' arising from the process forms a basis for conditions to be approved or formulated by the prosecutor. Notwithstanding the outcome agreement, the prosecutor retains a duty to ensure that the conditions are proportionate to the offending and meet the public interest requirements of the case. Taking account of the views of the victim, and any other conditions attached to the caution, the CPS/police will need to take a view as to which use of restorative justice is appropriate in a particular case.

It is desirable that, where RJ-trained personnel are available and a case with a personal victim is being considered for a Conditional Caution, the victim should be contacted (unless there are exceptional reasons not to do so) to ask for their views on reparation as a condition of the caution, or (if the offender has already indicated they are willing) whether they would like to be involved in a direct or indirect restorative justice process. Restorative justice processes may also be appropriate for crimes with a corporate victim, or crimes where the community as a whole has suffered. In these cases, or in cases where a personal victim has chosen to have no involvement, it may still be desirable to deliver the caution (and decide any conditions) in a restorative manner.

Places where cautions may be given

Conditional Cautions will usually be given at the local police station, but there is the option of selecting a location appropriate to the offence; e.g. there may be value in giving it at the place where vandalism has occurred. It will be for the authorised person to determine the venue for administering the caution. However, it is not suitable for Conditional Cautions to be delivered on the street, or in the offender's home.

Monitoring and compliance

It is essential that there should be robust monitoring of compliance with the conditions of a caution. The onus is on the offender to show that the conditions have been met, and the conditions should be expressed in a way that makes clear to the offender what is to be done, by when, and what will be acceptable as evidence that it has been done. For example, an offender who agrees to attend a course might be required to produce a letter from the organiser confirming that he has done so. Depending on the nature of the condition, it may be appropriate for other agencies (see note 9) managing the Conditional Caution to monitor performance and report to the relevant prosecutor any failure fully to comply. At the end of the process the offender will sign a form that will include a declaration that the conditions have been met.

Failure to comply with any one of the conditions means that the offender may be prosecuted for the original offence. The offender will be required as a standard condition to report any failure to comply and explain whether there are circumstances that might amount to a reasonable excuse. Where the offender fails to report and give reasons, a prosecution may (following a prompt CPS review) be commenced, usually by the issue of a summons.

Whether any excuse given is reasonable or not is a matter for the relevant prosecutor to determine on all the available evidence. Such a decision may be reviewable by a court. The decision and reasons for it should be carefully recorded. Where the CPS are satisfied that there is a reasonable excuse for the offender's failure to meet the conditions, they will have to decide whether the case should be regarded as closed, or whether it would be appropriate to set a new time limit for completing conditions or (exceptionally) to revise the conditions, although they should not be made more onerous. Where this is done, the revisions should be recorded and the offender must sign the revised Conditional Caution form acquiescing in the changes. A refusal by the offender to agree to revised conditions will usually result in prosecution for the original offence. It will not usually be appropriate to revise conditions more than once.

Where conditions have been partially completed, it is for the prosecutor to decide whether the offender should be prosecuted, or whether the extent of the part-compliance is sufficient to regard the Conditional Caution as having been fulfilled (in which case it would remain on the record).

In general, however, failure to complete the conditions without reasonable excuse will lead to the offender being prosecuted for the original offence. The CPS will inform the police of the decision. The charge may be brought at the police station (if the offender attends voluntarily - there is no power of arrest), or more usually by way of summons (or, when the relevant provision of the Criminal Justice Act 2003 has been implemented, in accordance with the 'charge by post' procedure, which may be used by the CPS as well as by the police). Where it is believed that the service of a summons or charge by post will be ineffective, eg because the offender's whereabouts are no longer known, an application for a warrant at first instance should be made to the magistrates' court. At the same time the Conditional Caution should be formally terminated, the offender so informed, and relevant police records (PNC and any locally stored) amended accordingly. Court proceedings will then go ahead in the usual way.

Whenever proceedings are instituted, the Conditional Caution ceases to have effect.

Personal victims, unless they have expressed a contrary wish, should be informed when a Conditional Caution has been completed or, where it is not completed, about the outcome of subsequent court proceedings.

CPS Diversion From Prosecution

Conditional Cautioning Code of Practice & associated annexes

Gore, R v [2009 EWCA Crim 1424 (14 July 2009) G pleaded guilty to inflicting grievous bodily harm. M was tried and convicted by the jury of the same offence. The police were alerted to a disturbance by the CCTV operators. They did not examine the CCTV material itself. G and M were issued with fixed penalty notices. On the following day the police reviewed the CCTV evidence. It was decided that the fixed penalty notices were inappropriate. G an M were both charged with inflicting grievous bodily harm on S. Held: It was not an abuse of process to prosecute where FPN for disorder were issued by the police at the scene for what was said to be the identical conduct for which the appellants were prosecuted before the Crown Court.

Times Law Report Prosecution after penalty notice is no abuse. The issue of a fixed penalty notice asserting one offence did not protect the recipient from further proceedings if and when it became apparent that a more serious offence had in fact been committed in the course of the same incident.

In Hamza, R. v [2006] EWCA Crim 2918 (28 November 2006) and in H, R (on the application of) v Guildford Youth Court [2008] EWHC 506 (Admin) (03 March 2008) the court held: It will not likely to constitute an abuse of process unless;

(i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted, and;

(ii) the defendant has acted on that representation to his detriment.

Guest v Director of Public Prosecutions [2009] EWHC 594 (Admin) (05 March 2009) Summary: Where a conditional caution is quashed, it will not ordinarily amount to an abuse of process to prosecute for the offence in question. Such a course of action will generally be in the public interest.

H, R (on the application of) v Guildford Youth Court [2008] EWHC 506 (Admin) (03 March 2008) In this case, the Administrative Court approved the approach of the Youth Court in staying a case involving the alleged unlawful infliction of grievous bodily harm as an abuse of process, where the 15 year old suspect had been told by the police (prior to CPS involvement) that they would be seeking to deal with the matter by the administering of a conditional caution.

Mondelly, R (on the application of) v Commissioner of the Police for the Metropolis [2006] EWHC 2370 (Admin) (29 September 2006) The administration of a caution to the applicant for the possession of a Class C drug, namely cannabis, was not in breach of the respondent police's policy, as there was no clear and settled policy not to arrest or prosecute or caution individuals for simple possession of cannabis. Were there to be a police/CPS policy that no one should be prosecuted for simple possession of cannabis unless it fell within the aggravating circumstances specified, and if that were said to make a decision to prosecute unlawful in such circumstances, it would be an unlawful policy itself. Parliament did not enact those aggravating factors into the offence of simple possession, and it is not for executive prosecution policy to change it. The implication of Mr Starmer QC's argument is that by policy, a police force or the Home Office, could suspend or dispense with part of the law as enacted by Parliament.

Jones v. Whalley [2006] UKHL 41 (26 July 2006) It was an abuse of the court’s process for a private prosecution to be brought against a person after he had accepted a formal caution by a police officer on the express assurance that, if he agreed to be cautioned, he would not have to go before a criminal court in connection with the offence. The House of Lords so held when allowing an appeal by Stephan Whalley from the Divisional Court [2005] EWHC 931 (Admin) which had allowed an appeal by Lawrence Jones by way of case stated from Justices sitting at St Helen’s who on 25 October 2004 had stayed his private prosecution against Mr Whalley for assault occasioning actual bodily harm as an abuse of the court’s process. LORD BINGHAM OF CORNHILL said that, although it was correct that Part I of the Prosecution of Offences Act 1985 did not preclude the bringing of a private prosecution, save where the Director of Public Prosecutions was obliged or chose to take over the conduct of proceedings, and a police officer’s decision to caution rather than to prosecute an offender could not deprive a private prosecutor of his right, that did not answer the question whether Mr Jones’ prosecution was an abuse of the court’s process. What had to be considered was the effect of the officer’s assurance on Mr Whalley. He was led to believe that if he agreed to be cautioned he would not be prosecuted for that offence. Mr Jones could have challenged the lawfulness of the caution and, if successful, he would have been free to bring his prosecution. But so long as the formal caution stood it was an abuse of the court’s process for the trial to proceed. The justices had been correct. He would dismiss the appeal on that narrow ground. A broader question, not argued below or raised in Mr Whalley’s case, was argued by him: whether a private prosecution could or should survive the implementation of a formal cautioning procedure which had not been quashed or set aside. While seeing considerable force in that argument His Lordship neither accepted nor rejected it: it was inappropriate to determine it on the present appeal.

R (on the application of Wyman) v Chief Constable of Hampshire Constabulary, AC, 24 July 2006. This is a very interesting case about a student arrested, interviewed and subsequently cautioned by the police for an offence of sexual assault. He later applied for the caution to be quashed and all records of it expunged on the grounds that the correct procedure had no tbeen followed and that it could not properly be said that he had made an admission to all of the requisite elements of the offence. This case potentially has very far reaching consequences for the police in relation to the procedure that should be followed in future cases, which requires a very detailed procedure in accordance with Home Office guidelines. Rich pickings for lawyers one suspects.

Director Public Prosecutions v Ara [2001] EWHC 493 (Admin) (21 June 2001); [2001] 4 All ER 559 [2002] 1 WLR 815; Ara [2002] 1 Cr. App. R. 16 The polices failure to provide a solicitor with a copy of his clients record of a taped interview amounts to an abuse of process. The Divisional Court heard an appeal by the prosecution by way of case stated in respect of a justices’ order for the stay of proceedings for abuse of process by reason of the non disclosure of interview notes to the applicant’s solicitor to facilitate advise to the applicant as the issue of a caution. It is important to note the facts of the case. After interview the investigating officer advised the applicant that he would be recommending a caution, subject to verification by his supervising officer. The police refused to disclose the interview notes to the applicant’s solicitor so that he could advise the applicant in relation to the caution. The applicant later attended the police station where a caution was to be offered, subject to verification. However the applicant’s solicitor advised the applicant not to consent to the caution as the interview notes had been withheld and the supervising officer charged the applicant. The Divisional Court held that the police had a duty to disclose a previous interview to a suspect’s solicitor so that the solicitor could advise the suspect whether or not to consent to a caution. It is apparent that the action of the police in refusing disclosure of the interview had effectively prevented the matter from proceeding by way of caution.



Edited by Ron Barker on 16 October 2010 at 05:38


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Posted: 16 October 2010 at 05:20 | IP Logged Quote Stan_Still

Quote: Mizzy



That is great Ron. Do you have anything on conditional
cautions?


How come you have to rely on Ron to do your research? Does
your browser not connect to Google?

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Ron Barker
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Posted: 16 October 2010 at 05:26 | IP Logged Quote Ron Barker

CPS Offences that may be Conditionally Cautioned

Section 22: Conditional cautions

Section 22 defines a conditional caution and provides that it may be given to an adult offender if the five requirements in section 23 are met. The conditions which may be imposed are restricted to those aimed at reparation for the offence, or at the rehabilitation of the offender. A conditional caution may be given by an authorised person as defined in subsection (4).

 Section 23: The five requirements

Section 23 sets out the requirements which need to be met for a conditional caution to be given. The requirements are that there is evidence against the offender; that a 'relevant prosecutor' (as defined in section 27) considers that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution, and the conditions imposed.

 Section 23A: Financial penalties

Section 23A Financial penalties

 Section 24: Failure to comply with the conditions

Section 24 provides that if the offender fails without reasonable excuse to satisfy the conditions attached to the conditional caution he or she may be prosecuted for the offence. If proceedings are commenced the document referred to in Section 23 is admissible in evidence, and the conditional caution ceases to have effect.

 Section 24A: Arrest for failure to comply

Section 24A Arrest for failure to comply

 Section 24B: Application of PACE provisions

Section 24B Application of PACE provisions

Section 25: Code of practice

Section 25 makes provision for the Home Secretary, with the consent of the Attorney General, to publish a Code of Practice setting out the criteria for giving conditional cautions, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance. The Home Secretary is required to publish the Code in draft and to consider any representations regarding it. The completed Code must then be laid before Parliament.

 Section 26: Assistance of National Probation Service

Section 2 6 amends the Criminal Justice and Court Services Act 2000 to extend the statutory duties of the National Probation Service to cover offenders who are given (or being considered for) a conditional caution.

Section 27: Interpretation of Part 3

Section 27 defines various terms used in this Part of the Act.



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Posted: 16 October 2010 at 05:45 | IP Logged Quote Ron Barker

Code of Practice for Youth Conditional Cautions for 16 & 17 year olds

Part 4: Summary: Youth Conditional Cautions

Section 48 and Schedule 9 extend the adult conditional caution scheme, provided for in Part 3 of the 2003 Act, to young offenders. The provisions allow for a caution with specific conditions attached to it to be given where there is sufficient evidence to charge a suspect with an offence which he or she admits, and the suspect agrees to the caution. It would be for the prosecutor to decide whether a conditional caution was appropriate, and in most cases for the police to administer it. If the suspect failed to comply with the conditions, he or she would be liable to be prosecuted for the offence. The Act provides for the publication of a Code of Practice for youth conditional cautions.

 Part 4: Commentary: Sections: Youth Conditional Cautions
 Section 48: Alternatives to prosecution for offenders under 18

Section48: Subsection 1 gives effect to Schedule 9 which makes provision for Youth Conditional Cautions. Similar provision for adult conditional cautions is made in Part 3 of the 2003 Act, as amended by sections 17 and 18 of the Police and Justice Act 2006. The Schedule also amends section 65 of the 1998 Act which relates to reprimands and final warnings.

Subsection (2) provides the Secretary of State with the power (subject to the affirmative resolution procedure) to amend the provisions in new sections 66A-66H of the Crime and Disorder Act 1998 in respect of youth conditional cautions for those aged 15 and under. This is necessary because the needs and specific requirements of those aged 10-15 are likely to be different from those aged 16 and 17. Subsequent to consultation on the younger age range, it may be necessary to amend the provisions on youth conditional cautions for this age group.

Schedule 9: Alternatives to prosecution for offenders under 18

Schedule 9: Paragraph 2 amends section 65 of the 1998 Act. That section provides for the giving of reprimands and final warnings to children and young offenders. Paragraph 2(2) amends section 65(1) of the 1998 Act which sets out the conditions that must be satisfied before a reprimand or warning may be given. Paragraph 2(2)(a) amends section 65(1)(b) - which requires a constable to be satisfied that, on the evidence, there would be a realistic prospect of the offender being convicted - so as to bring it into line with the equivalent test for adult conditional cautions, namely that there is sufficient evidence to charge the offender with the offence. No practical difference is intended between the existing and revised test. Paragraph 2(2)(b) amends the test in section 65(1)(d) so that no young person may be given a reprimand or warning where he or she has previously been given a youth conditional caution. Paragraph 2(3) amends section 65(3) so as to require a constable, when considering whether to warn a young person (who has previously received a warning), to be satisfied that the offence is not so serious as to require either (as now) the person to be charged or a youth conditional caution to be given. Paragraph 2(4) amends section 65(6), which places a duty on the Secretary of State to issue guidance in respect of reprimands and warnings. As a result of the amendment, such guidance will need to set out the criteria for determining whether an offence is not so serious as to require the offender to be charged (as now), or given a youth conditional caution.

Section 65(8) of the 1998 Act prohibits the giving of any caution to a child or young person other than a reprimand or warning. Paragraph 2(6) amends this provision so as to exclude youth conditional cautions from the prohibition (children and young persons will, as now, be ineligible to receive a "simple" police caution).

Paragraph 3 Schedule 9 inserts new sections 66A to 66H into the 1998 Act.

New section 66A of the 1998 Act: Youth conditional cautions

New section 66A of the 1998 Act defines a youth conditional caution and provides that it may be given to a young person aged 10 to 17 if the offender has not previously been convicted of an offence and five other requirements, listed in new section 66B, are met. The conditions which may be imposed are restricted to those aimed at the rehabilitation of the offender, ensuring that the offender makes reparation for the offence or punishing the offender.

New section 66A(4) provides that the conditions that may be included in a youth conditional caution may include the imposition of a financial penalty and/or a requirement for attendance at a specified place at a specified time (which might include completion of a specified activity). The provision for a financial condition is subject to new section 66C. New section 66A(5) provides that where a condition involves an attendance requirement, the maximum number of hours is restricted to no more than 20 hours in total. This 20 hour limit does not apply to an attendance requirement imposed for the purpose of facilitating the offender's rehabilitation. This is to permit rehabilitative conditions involving, for example, drug or alcohol treatment programmes that may take longer than 20 hours in total. By virtue of new section 66A(6) this figure of 20 hours may be amended by order (subject to the affirmative resolution procedure). A youth conditional caution may be given by an authorised person as defined in new section 66A(7).

 New section 66B of the 1998 Act: The five requirements

New section 66B of the 1998 Act sets out the requirements which need to be met for a youth conditional caution to be given. The requirements are that there is evidence against the offender; that a "relevant prosecutor" (as defined in new section 66H) considers that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution, and the conditions imposed. Where the offender is aged 16 or under the explanation about the effect of a youth conditional caution must be made in the presence of an appropriate adult.

 New section 66C of the 1998 Act: Financial penalties

This new section makes provision in relation to a condition that the offender pay a financial penalty, called a "financial penalty condition". New section 66C(1) specifies that a financial penalty condition may not be attached to a youth conditional caution given in respect of an offence unless the offence in question is one prescribed, or of a description prescribed, in an order made by the Secretary of State (subject to the negative resolution procedure). New section 66C(2) requires that an order under new section 66C(1) must also specify the maximum amount of the financial penalty that may be specified for each offence or description of offence.

New section 66C(3) provides that the maximum financial penalty prescribed for an offence must not exceed £100. New section 66C(4) provides that this limit may be amended by order (subject to the affirmative resolution procedure save where the £100 limit is being updated only to account for inflation in which case the negative procedure applies).

The financial penalty condition is intended to be a requirement to pay money that is imposed for the purposes of punishing an offender. It does not preclude an offender also being required to pay compensation to victims for the purpose of making reparation for the offence, or to pay a sum of money to a charity by way of indirect reparation to the community.

 New section 66D of the 1998 Act: Variation of conditions

New section 66D makes express provision for the conditions attached to a youth conditional caution to be varied with the consent of the offender. Such variation may include the addition or omission of any condition.

 New section 66E of the 1998 Act: Failure to comply with the conditions

New section 66E provides that if the offender fails without reasonable excuse to comply with the conditions attached to the conditional caution he or she may be prosecuted for the offence. If proceedings are commenced the document referred to in new section 66B(6) is admissible in evidence, and the conditional caution ceases to have effect.

New section 66E(4) and (5) apply section 24A of the 2003 Act with the necessary modifications. Section 24A confers on a constable a power of arrest without warrant where an offender is suspected of having breached the conditions of a conditional caution without reasonable excuse; this is in order to enable a quicker, more effective means of facilitating prosecution for the original offence.

 New section 66F of the 1998 Act: Restriction on sentencing powers where youth conditional caution given

New section 66F provides that, save in exceptional circumstances, a court may not, when sentencing an offender who has been given a youth conditional caution in the period of two years preceding the commission of the offence for which he is being sentenced, sentence that person to a conditional discharge. Where the court is satisfied that exceptional circumstances are present, the sentencer must state in open court why he or she is so satisfied.

 New section 66G of the 1998 Act: Code of practice on youth conditional cautions

This new section makes provision for the Secretary of State, with the consent of the Attorney General, to publish a Code of Practice setting out, amongst other things, the circumstances in which youth conditional cautions may be given, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance.

The Secretary of State is required to publish the Code in draft and to consider any representations regarding it. The completed Code must then be laid before Parliament. The Code is then brought into force by an order. The first such order will be subject to the affirmative resolution procedure and any subsequent orders will be subject to the negative resolution procedure.

 New section 66H of the 1998 Act: Interpretation

New section 66H defines various terms used in Chapter 1 of Part 4 of the 1998 Act, as amended.

Paragraph 4 of Schedule 9 amends section 114 of the 1998 Act to specify the appropriate parliamentary procedure for each of the new order-making powers conferred by new sections 66A, 66C, 66G and 66H.

 Schedule 9: Alternatives to prosecution for offenders under 18

Schedule 9: Paragraph 2 amends section 65 of the 1998 Act. That section provides for the giving of reprimands and final warnings to children and young offenders. Paragraph 2(2) amends section 65(1) of the 1998 Act which sets out the conditions that must be satisfied before a reprimand or warning may be given. Paragraph 2(2)(a) amends section 65(1)(b) - which requires a constable to be satisfied that, on the evidence, there would be a realistic prospect of the offender being convicted - so as to bring it into line with the equivalent test for adult conditional cautions, namely that there is sufficient evidence to charge the offender with the offence. No practical difference is intended between the existing and revised test. Paragraph 2(2)(b) amends the test in section 65(1)(d) so that no young person may be given a reprimand or warning where he or she has previously been given a youth conditional caution. Paragraph 2(3) amends section 65(3) so as to require a constable, when considering whether to warn a young person (who has previously received a warning), to be satisfied that the offence is not so serious as to require either (as now) the person to be charged or a youth conditional caution to be given. Paragraph 2(4) amends section 65(6), which places a duty on the Secretary of State to issue guidance in respect of reprimands and warnings. As a result of the amendment, such guidance will need to set out the criteria for determining whether an offence is not so serious as to require the offender to be charged (as now), or given a youth conditional caution.

Section 65(8) of the 1998 Act prohibits the giving of any caution to a child or young person other than a reprimand or warning. Paragraph 2(6) amends this provision so as to exclude youth conditional cautions from the prohibition (children and young persons will, as now, be ineligible to receive a "simple" police caution).

Paragraph 3 Schedule 9 inserts new sections 66A to 66H into the 1998 Act.

 New section 66A of the 1998 Act: Youth conditional cautions

New section 66A of the 1998 Act defines a youth conditional caution and provides that it may be given to a young person aged 10 to 17 if the offender has not previously been convicted of an offence and five other requirements, listed in new section 66B, are met. The conditions which may be imposed are restricted to those aimed at the rehabilitation of the offender, ensuring that the offender makes reparation for the offence or punishing the offender.

New section 66A(4) provides that the conditions that may be included in a Youth Conditional Caution may include the imposition of a financial penalty and/or a requirement for attendance at a specified place at a specified time (which might include completion of a specified activity). The provision for a financial condition is subject to new section 66C. New section 66A(5) provides that where a condition involves an attendance requirement, the maximum number of hours is restricted to no more than 20 hours in total. This 20 hour limit does not apply to an attendance requirement imposed for the purpose of facilitating the offender's rehabilitation. This is to permit rehabilitative conditions involving, for example, drug or alcohol treatment programmes that may take longer than 20 hours in total. By virtue of new section 66A(6) this figure of 20 hours may be amended by order (subject to the affirmative resolution procedure). A youth conditional caution may be given by an authorised person as defined in new section 66A(7).

 New section 66B of the 1998 Act: The five requirements

New section 66B of the 1998 Act sets out the requirements which need to be met for a youth conditional caution to be given. The requirements are that there is evidence against the offender; that a "relevant prosecutor" (as defined in new section 66H) considers that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution, and the conditions imposed. Where the offender is aged 16 or under the explanation about the effect of a youth conditional caution must be made in the presence of an appropriate adult.

 New section 66C of the 1998 Act: Financial penalties

This new section makes provision in relation to a condition that the offender pay a financial penalty, called a "financial penalty condition". New section 66C(1) specifies that a financial penalty condition may not be attached to a youth conditional caution given in respect of an offence unless the offence in question is one prescribed, or of a description prescribed, in an order made by the Secretary of State (subject to the negative resolution procedure). New section 66C(2) requires that an order under new section 66C(1) must also specify the maximum amount of the financial penalty that may be specified for each offence or description of offence.

New section 66C(3) provides that the maximum financial penalty prescribed for an offence must not exceed £100. New section 66C(4) provides that this limit may be amended by order (subject to the affirmative resolution procedure save where the £100 limit is being updated only to account for inflation in which case the negative procedure applies).

The financial penalty condition is intended to be a requirement to pay money that is imposed for the purposes of punishing an offender. It does not preclude an offender also being required to pay compensation to victims for the purpose of making reparation for the offence, or to pay a sum of money to a charity by way of indirect reparation to the community.

 New section 66D of the 1998 Act: Variation of conditions

New section 66D makes express provision for the conditions attached to a youth conditional caution to be varied with the consent of the offender. Such variation may include the addition or omission of any condition.

 New section 66E of the 1998 Act: Failure to comply with the conditions

New section 66E provides that if the offender fails without reasonable excuse to comply with the conditions attached to the conditional caution he or she may be prosecuted for the offence. If proceedings are commenced the document referred to in new section 66B(6) is admissible in evidence, and the conditional caution ceases to have effect.

New section 66E(4) and (5) apply section 24A of the 2003 Act with the necessary modifications. Section 24A confers on a constable a power of arrest without warrant where an offender is suspected of having breached the conditions of a conditional caution without reasonable excuse; this is in order to enable a quicker, more effective means of facilitating prosecution for the original offence.

 New section 66F of the 1998 Act: Restriction on sentencing powers where youth conditional caution given

New section 66F provides that, save in exceptional circumstances, a court may not, when sentencing an offender who has been given a youth conditional caution in the period of two years preceding the commission of the offence for which he is being sentenced, sentence that person to a conditional discharge. Where the court is satisfied that exceptional circumstances are present, the sentencer must state in open court why he or she is so satisfied.

New section 66G of the 1998 Act: Code of practice on youth conditional cautions

This new section makes provision for the Secretary of State, with the consent of the Attorney General, to publish a Code of Practice setting out, amongst other things, the circumstances in which youth conditional cautions may be given, how they are to be given and who may give them, the conditions which may be imposed and for what period, and arrangements for monitoring compliance.

The Secretary of State is required to publish the Code in draft and to consider any representations regarding it. The completed Code must then be laid before Parliament. The Code is then brought into force by an order. The first such order will be subject to the affirmative resolution procedure and any subsequent orders will be subject to the negative resolution procedure.

 New section 66H of the 1998 Act: Interpretation

New section 66H defines various terms used in Chapter 1 of Part 4 of the 1998 Act, as amended.

Paragraph 4 of Schedule 9] amends section 114 of the 1998 Act to specify the appropriate parliamentary procedure for each of the new order-making powers conferred by new sections 66A, 66C, 66G and 66H.

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland

 



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