Cautioning and Diversion
- Guidance - Home Office Circular 16/2008
- Conditional Cautioning
- Net widening
- Public Interest Considerations and Serious Offences
- Views of the Victim
- Repeat Cautions
- Protection for Spent Cautions
- Procedure and Authorities
Guidance - Home Office Circular 16/2008
The Home Office Circular 16/2008 for Simple Cautioning requires that the following conditions are met before a simple caution may be administered by the police:
- The offender has made a clear and reliable admission (either verbally or in writing);
- There is a realistic prospect of conviction full Code test;
- It is in the public interest to offer a simple caution; and
- The offender is 18 years or more at the time that the caution is to be administered (Prosecutors should note that the Divisional Court held that when police were proposing to caution, the suspect was entitled to disclosure of material necessary to enable his legal advisers to assess the prosecution case and give informed legal advice as to consent (DPP v Ara, TLR 16 July 2001).
A simple caution should be used for low level offending and only in exceptional circumstances should it be used to deal with more serious offences. The Association of Chief Police Officers (ACPO) has developed a Gravity Factors Matrix (available on the Police National Legal Database). This provides guidance on the offences for which a simple caution may be an appropriate disposal.
Police Officers can issue a simple caution without reference to the CPS, although Prosecutors may be asked for advice on the suitability of using a simple caution disposal at any time. However, only the CPS can make the decision on whether an indictable-only offence is suitable to be dealt with by way of a simple caution.
Cases will be suitable for a caution to be administered where the above criteria 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 to the police (R v The 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.
Whenever you are satisfied that there is sufficient evidence to provide a realistic prospect of conviction, the public interest in bringing a conviction must be considered. The Code for Crown Prosecutors, explains the principles to be applied in balancing factors for and against prosecution. The public interest does not automatically require a prosecution. Regard should also be had to paragraph 10 of the Director's Guidance on Charging (4th Edition) which advises on the procedures to be adopted when a Charging or reviewing lawyer considers that a simple caution is an appropriate disposal.
The Code for Crown Prosecutors also sets out at in section 7 the circumstances in which the prosecution service will offer a Conditional Caution or direct that a simple caution be offered by the police in accordance with Home Office Circular 16/2008. The diversion of youths is dealt with in section 8 of the Code. In addition, prosecutors should refer to Standard 3 of the CPS Core Quality Standards (CQS) which details the considerations that will inform our decision whether to use an out-of-court disposal. Information about Simple Cautioning for Adult offenders (including the gravity factor matrix) (HOC 16/2008) can be retrieved from the PNLD using the search word "Matrix".
Only the police have the power to administer a caution. The CPS does, however, have a role to play in helping the police to ensure that the Home Office guidelines contained within the Circular are applied consistently and fairly. Accordingly, you should refer to the police any case in which you consider a caution is the appropriate disposal (see Code for Crown Prosecutors, paragraph 7.6).
Simple cautioning (and Conditional Cautioning) are the only formal disposals which fall short of prosecution; but it is not the only way to divert an individual from the criminal justice system. Prosecutors may suggest to the police, for example, the issue of a Penalty Notice for Disorder. Information about the Final Warning Scheme for Young offenders (including the gravity factor matrix) (HOC 14/2006) can be retrieved from the PNLD using the search word "Matrix". Specific guidance is also given in Youth Offenders, and Mentally disordered offenders. chapters
There is presumption in favour of not prosecuting certain categories of offender, such as the elderly, the young or the mentally ill. This does not mean that offenders in these categories should never be prosecuted; a prosecution may be needed because of the seriousness of the offence or some other compelling public interest factor, or where a caution is unlikely to be effective (see further, section 4 of the Code for Crown Prosecutors and also the Home Office circular on for simple cautions).
Equally, the fact that the offender is not within any of these categories does not imply that he or she should not be cautioned. The key considerations are:
- whether a caution is appropriate to the circumstances of the offence and the offender';
- whether the conditions for cautioning are met; and
- whether the caution is likely to be effective.
Conditional Cautioning
Part 3 of The Criminal Justice Act 2003 requires that the following conditions are met before a conditional caution may be administered:
- The police have evidence that the offender has committed the offence. The prosecutor considers that there is sufficient evidence to charge the offender with an offence and that it is in the public interest to offer a conditional caution;
- The offender (aged 18 or more) admits to the police that has committed the offence;
- The police explain to the offender the effect of the conditional caution and warn him that a failure to comply with any of the conditions attached to the caution may result in his being prosecuted; and
- 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 a conditional caution, and
- The conditions attached to the caution.
Only a Crown Prosecutor may decide whether a person is to be made the subject of a conditional caution. The Code for Crown Prosecutors and CQS Standard 3 explain the principles to be applied in balancing factors for and against prosecution. The Code of Practice for Conditional Cautions and The Director's Guidance on Conditional Cautions provide details of the procedures to be adopted.
Conditions may be reparative or rehabilitative and must be appropriate and proportionate. Restrictions may be imposed where they support rehabilitative or rehabilitative conditions but these should be for as short a time as possible and as is appropriate to the offence and the needs of the offender.
If the offender does not fulfil their side of the agreement by completing the conditions, then the case will be referred to a CPS Prosecutor to make a decision on prosecution for the original offence. If the offender does not complete the conditions without good reason, it is likely that they will be prosecuted for the original offence. If there are good reasons for the offender not being able to complete the condition(s) it may be possible that the situation is reassessed. However, the police and CPS will not vary the conditions(s) unless there is a reason that they consider acceptable. A conditional caution, though not complete, may nevertheless be regarded as complete where it is no longer in the public interest to commence a prosecution.
Where an offender has been arrested for a failure to comply with conditions, the period for which the person may be kept in custody cannot exceed the balance of any time left under the original PACE clock for the initial arrest but should not exceed 3 hours in any event. Where it is not possible to make the charging decision in this limited 3 hour time frame, the offender should be bailed.
Net widening
Cautioning is not the only method of diverting an individual from the criminal justice system. Other options include taking no action and giving an informal (non-citable) warning.
A caution is a serious matter. It is recorded by the police and may be cited in subsequent court proceedings. It represents one form of entry into the criminal justice system. The existence of a formal method of disposal falling short of prosecution gives rise to a danger that an offender will be cautioned when a more informal action might have been more appropriate. Prosecutors need to be aware of this.
Public Interest Considerations and Serious Offences
Home Office guidance is that a caution is not appropriate if the offence is serious; particularly if it is triable on indictment only.
Nonetheless, there will be indictable only cases in which a caution is appropriate because of the particular circumstances of the offence or the offender.
Such cases are likely to be unusual. These cases must be referred to the CPS for a decision and will not be an effective disposal unless this is done. The prosecutor should only caution for such offences in exceptional circumstances (Code for Crown Prosecutors, paragraph 7.5). A full note on the MG3 detailing the circumstances of the offence and the reasons for making the decision should be made.
Views of the Victim
Before a simple caution is given, it is important to establish where appropriate and possible what the victim's views about the offence are and the proposed method of disposal. It will be important to consider the nature and extent of the harm caused and whether any form of compensation could be paid. If so, a conditional caution (see above) might be preferable.
Victims' views although important cannot be the deciding factor. That decision must be made by the prosecutor in the light of all the circumstances of the case.
In the case of youth offenders, decisions as to whether a reprimand or final warning as opposed to charging is appropriate, should take account of the ACPO Guidelines on Case Disposal Gravity - Youth Offenders.
Repeat Cautions
The Guidelines reflect public concern about repeat cautioning. As a general rule, it is not appropriate to caution more than once. There may be exceptions to this, for example, when the new offence is trivial or there has been sufficient lapse of time since the first caution to suggest that it had some effect.
In relation to relation to youths, see Code for Crown Prosecutors, paragraph 8.5.
"A sufficient" lapse of time will vary according to the age and other characteristics of the defendant. In cases involving children, those suffering from a mental disadvantage or the elderly, this might be a much shorter period than might otherwise be the case.
Protection for Spent Cautions
Sections 49 and schedule 10 of the Criminal Justice and Immigration Act 2008 (CJIA) came into effect on 19 December 2008. From that date cautions, conditional cautions, reprimands and warnings all became subject to the provisions of the Rehabilitation of Offenders Act 1974 (ROA).
Cautions (including reprimands and warnings) become spent at the time when they are given i.e. immediately. Conditional cautions will be regarded as spent 3 months after the date on which they were administered unless the conditional caution is revoked and the offender is prosecuted instead and convicted of the original offence. In that case the rehabilitation period of the conditional caution is the same as that of the offence for which the offender is convicted.
Transitional arrangements in paragraph 19 of schedule 27 of the CJIA provide that the change applies to cautions, reprimands and warnings given before the commencement date as it applies to cautions given on or after that date.
Care should be taken when dealing with spent cautions especially when presenting antecedent records in court. The practice set out in paragraph 1.6 of the Consolidated Criminal Practice Direction (CCPD) is to be followed. This means that you should not refer in open court to the existence of a spent caution, reprimand or warning and, as far as practicable, references to them in any record which is given to the court should be marked as spent.
However, the ROA makes clear that the general protection from disclosure afforded to spent cautions and conditional cautions does not affect "the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person's previous convictions or to circumstances ancillary thereto (a) in any criminal proceedings before a court in Great Britain (including any appeal or reference in a criminal matter)". Spent cautions can be used in criminal proceedings in the same way and to the same extent as spent convictions, as to which see paragraph 1.6.3 of the CCPD.
Procedure and Authorities
If you are satisfied that a caution is appropriate, where possible discuss the case with the police before referring the case to them with your decision. Refer to The Director's Guidance on Charging and The Director's Guidance on Conditional Cautioning.
The authority for the CPS to make a decision to caution (whether simple or conditional) is contained within section 37B(3)(b) of the Police and Criminal Evidence Act 1984 which states that:
- Section 37B(2) The Director of Public Prosecutions shall decide whether there is sufficient evidence to charge the person with an offence;
- Section 37B(3) If he decides that there is sufficient evidence to charge the person with an offence, he shall decide ...
- (b) whether or not the person should be given a caution and, if so, the offence in respect of which he should be given a caution;
- Section 37B(6) If the decision of the Director of Public Prosecutions is that a person should be given ... a caution in respect of an offence, he shall be ... cautioned accordingly.
Note by subsection 9, caution includes a conditional caution, reprimand or final warning.
The authority for Conditional Cautioning is contained within Part 3 of the Criminal Justice Act 2003.
