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Diverting offenders with mental health problems and/or learning disabilities within the National Conditional Cautioning Framework

Published: 5 November 2010

Purpose

1. Lord Bradley's review, (The Bradley Review) commissioned by the previous Government made a large number of recommendations about how the criminal justice system deals with offenders with mental health problems. The Review recommended that Conditional Cautions provide a good opportunity locally to deal with offenders with mental health problems and/or learning disabilities. The effective use of Conditional Cautions in dealing with such offenders should cut crime, improve health, reduce police and court workloads and free up prison places for serious and violent offenders.

2. Conditional Cautions are intended to be a swift and effective means of dealing with straightforward cases. The Director's Guidance on Adult Conditional Cautions (paragraph 10.1) states that the decision to administer a conditional caution should be taken while the offender is in custody or within 72 hours of arrest wherever possible. During this period, the offender may be released on bail, with or without conditions, under section 37 (7) PACE.

3. This guidance has been produced to assist CPS Prosecutors by clearly setting out the circumstances when it would be appropriate to issue a Conditional Caution in cases involving offenders with mental health problems and/or learning disabilities. This guidance should be read in conjunction with the Legal Guidance on Cautioning and Diversion.

4. This guidance also seeks to raise the profile of local provision around support for offenders with mental health problems and/or learning disabilities through providing examples of local schemes specifically designed to encapsulate the underlying issues through a dedicated centre of support which is holistic in approach, rather than a specific condition to tackle one aspect of the individual.

5. The imposition of a Conditional Caution is a serious matter. It forms part of the offender's criminal record and may be cited in subsequent court proceedings. Prosecutors should be careful not to 'up-tariff' an offence in a misplaced effort to provide assistance to an offender. For example, it would not be appropriate to authorise a Conditional Caution in circumstances where it would be more appropriate for the police to issue a simple caution or for other informal action to be taken.

6. Examples of existing services in the third sector are at Annex A which includes a detailed summary of the Revolving Doors Project and other local initiatives.

7. Together, these documents support and underpin the Code for Crown Prosecutors by providing additional guidance. The Code for Crown Prosecutors sets out in section 7 the role of the CPS in relation to out-of-court disposals and the circumstances in which a conditional caution may be offered.

8. The Director of Public Prosecutions' Guidance on Adult Conditional Cautions (the Director's Guidance) specifies the information that must be sent to crown prosecutors to enable a conditional cautioning decision to be made, the practical arrangements for the referral of cases and for dealing with any non-compliance.

9. Prosecutors are also assisted by Standard 3 of the Core Quality Standards (CQS) which sets out the considerations that will help inform our decisions around the use of out-of-court disposals.

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Principle

10. In 2007, the then Government commissioned Lord Bradley to conduct an independent review into the potential opportunities for and the barriers to diverting people with mental health problems and/or learning disabilities from prison into other services. This was initially intended to focus around court liaison and diversion schemes, but it ultimately extended to a wider interpretation of diversion encompassing all aspects of the 'offender pathway' including prevention and early intervention. Lord Bradley reported to Government in February 2009, and the report, "Lord Bradley's review of people with mental health problems or learning disabilities in the criminal justice system" was published in April 2009.

11. The CPS has conducted research into the role of prosecutors and their decision making in cases involving offenders with mental health problems and/or learning disabilities and one of the recommendations arising from this research is the need to clearly set out the circumstances when it would be appropriate to issue a Conditional Caution in cases involving offenders with mental health problems and/or learning disabilities.

12. A number of CPS and police force Areas already have bespoke facilities through which the particular needs of offenders with mental health problems and/or learning disabilities and the drivers behind their criminal behaviour - for example drug or alcohol abuse, gambling or debt or health problems - may be addressed through the provision of tailored local support.

13. Where Areas do not have provisions in place to provide the support for diversion for offenders with mental health problems and/or learning difficulties they are encouraged to engage with local health care trusts to establish links that will assist in prosecution decision-making with regards to these types of offenders.

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Conditional Cautions

14. The CPS plays a major role in diverting offenders with mental health problems and/or learning disabilities from prosecution in the following ways:

  • Provision of pre-charge advice to the police that results in the offender being cautioned or no further action being taken;
  • Prosecutors issuing conditional cautions where appropriate; and
  • Discontinuing criminal proceedings where the public interest does not require a prosecution.

15. The Code for Crown Prosecutors emphasises that there is a balance to be struck between the public interest in diverting a defendant with significant mental illness away from the criminal justice system, and other public interest factors in favour of prosecution including the need to safeguard the public.

16. Paragraph 4.17 of the Code states that a common public interest factor tending against prosecution is that:

"the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspect's mental or physical health with the need to safeguard the public or those providing care services to such persons".

17. The police play a major role in providing access to information as Prosecutors have no direct contact with detainees at the police station and rely solely on any information that they receive from the police with respect to any charging advice. Consequently, issues concerning mental illness or learning difficulties may only surface at the court stage. In relation to diversions, and in particular to Conditional Cautioning, information relating to the mental health of an offender needs to be provided at the point of making the decision to divert from prosecution.

18. Prosecutors should not assume that all offenders with mental health problems and/or learning disabilities are ineligible for cautioning or conditional cautioning. There is no definition of or restriction on the particular form of mental condition or disorder that may make an admission unreliable. Accordingly, diversion options remain open for such offenders.

19. Many detained in police custody will have multiple and complex needs. They will have had difficulty engaging with mainstream services in the community and the police have become the agency with whom they are most likely to have contact by default.

20. As set out above, prosecutors may not generally be aware of any disability or vulnerability until the defendant attends court, where the issue will often be raised for the first time by their solicitor. The CPS Legal Guidance on mentally disordered offenders recognises that prosecutors may also receive information about a defendant's needs at court from sources such as relatives and prison officers, who have observed the offender's behaviour or demeanour, and that this information may prompt further investigation to ascertain the nature and extent of the disability and its relevance to, and impact on, criminal proceedings. This of course is not always available when the decision is being considered as to whether to charge or divert.

21. Once the initial identification and assessment of need is made, liaison and diversion services, especially where based in police stations, have been able to ensure that this information is available to support decision-making at an early stage, for police and the CPS. There are already examples of such schemes that are also accessible to all criminal justice personnel including the CPS.

22. The improvement in information gathered at the police station would allow prosecutors to make better-informed decisions on prosecution and use of cautioning or conditional cautioning options.

23. Information on the nature and degree of the mental health need or learning disability, its relevance to the alleged offence, available treatment and compliance with past treatment can also be provided. This is particularly useful where the team advises that the mental health problem has not influenced the criminal behaviour. It also informs the CPS decision whether to prosecute in the event of non compliance.

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Selection of appropriate offenders

24. In determining whether a Conditional Caution is appropriate, Custody Officers and Crown Prosecutors are required to take into account the following factors to ensure that this out of court disposal provides an appropriate and proportionate response to the offending behaviour.

  • Sufficient evidence to charge the offender with the offence;
  • Permitted offences under the Conditional Cautioning scheme;
  • Public interest factors to determine whether a Conditional Caution should be offered;
  • Seriousness of the offence;
  • The likely outcome at court;
  • The effect on the victim;
  • Circumstances of the offender; and
  • The likelihood of further offending

25. A Conditional Caution will not be appropriate if there is any doubt about the reliability of any admissions made or if the offenders level of understanding prevents them from understanding the significance of the Conditional Caution and giving informed consent.

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Selection of appropriate conditions

26. In determining the conditions that are appropriate in each case police officers and prosecutors should act in accordance with the Code of Practice for Conditional Cautions. Conditions attached to a conditional caution may be reparative or rehabilitative, and may impose restrictions on any individual where these contribute to those objectives.

Reparative conditions

27. Priority consideration should be given to reparation or compensation for the victim of crime in a manner that is acceptable to the victim. Individual victims should, where possible, be consulted and suitable conditions canvassed. Any conditions involving the participation of a victim including receiving a letter of apology from the offender or making a claim for compensation, should not be required unless the victim has been consulted and agrees. Payment of financial reparation should only be included where the victim has requested this.

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Restrictive conditions

28. Conditions that impose restrictions may be included as part of a package of measures designed to rehabilitate offenders or make good the harm caused. They should not be imposed for a period exceeding the life of any such reparative or other rehabilitative conditions and the objectives may be achievable in a shorter period. The conditions, taken as a whole, must be proportionate to the level of offending and not so burdensome so as to seem to offer a disadvantage as compared to a likely court outcome.

Rehabilitative conditions

29. Rehabilitative conditions are designed to tackle offending behaviour and rehabilitate the offender. A review of the case, discussions with the Custody Officer, investigating officer or drug arrest referral officer and a consideration of any antecedent history may reveal some of the underlying problems leading to the offending.

30. Where it appears that the offending behaviour is linked to an underlying problem (addiction to drugs, alcohol, gambling, debt problems or health issues), and a suitable scheme is operating locally which is able to take referrals and provide therapy and/or counselling, conditions designed to encourage attendance at such schemes should be considered, in accordance with locally agreed protocols. It should be noted that if the offender is already receiving therapy and/or counselling this is not a bar to them receiving a condition which addresses differing aspects of their behaviour, or one requiring them to attend the therapy/counselling sessions where it is shown that non attendance has prompted the offending behaviour.

31. This rehabilitation could also mean referral to a centre such as Revolving Doors (Annex A) to look holistically at the offender and to assess how the centre could assist. As with the Women Specific Condition (Guidance published 18 June 2010) the condition may only be a referral for an initial assessment. Any Conditional Caution must be completed within 16 weeks of the offence and as these offenders may require longer treatment programmes, the requirement of the condition must be restricted to the initial assessment and any engagement outside that between the offender and the centre is outside the remit of the Conditional Caution.

Suitability

32. Part 3 of the Criminal Justice Act 2003 sets out the requirement that are necessary before a Conditional Caution may be issued. Further guidance can be found in the Legal Guidance on Cautioning and Diversion.

33. There are a number of factors to be taken into account when considering the implementation of a Conditional Caution specifically for offenders with mental health problems and/or learning disabilities:

  • Mechanisms in place for early identification of whether an offender is mentally disordered or is presenting a learning difficulty;
  • Importance of appropriate adults being available for vulnerable adult offenders;
  • Mechanisms in place to ensure that this information is presented to the CPS Prosecutor at the time of making a charging/diversion decision; and
  • Availability of a local scheme which has the capacity to take on additional offenders and offer them the required support.

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Annex A

Examples of local schemes

Revolving Doors Centre

Warrington police are linking up people they believe to have low level mental health needs with a full range of services in the community. If someone agrees to be helped, the police refer them to the Revolving Doors Service, which is part of mental health services. All the person's needs are then assessed, not just their mental health, and they are helped directly or supported to access help from other agencies. Further solutions are discussed at multi-agency meetings as required.

In relation to local conditional cautioning schemes the condition will be to attend for an initial assessment only. If the offender agrees to engage with any of the services offered this will be on a voluntary basis and outside the conditional cautioning scheme.

Project aim

To improve the lives of people with common mental health problems who are in contact with the police and to increase their appropriate and effective interaction with services. Project Outline Warrington neighbourhood police refer people with mental health issues direct to the gateway to all social care services, including mental health.

Two social workers repeatedly attempt contact, including cold calling where necessary. All are then offered a meeting in a place of their choice with a holistic assessment of all their needs, not just their mental health. The workers can provide direct services and brief interventions. Where appropriate they link people into services from a full range of agencies and also offer support to help people to make and keep appointments for up to eight weeks.

Comprehensive solutions for people requiring further support are discussed separately with colleagues and at a multi-agency panel. Over-arching issues are raised at the Steering Group. In relation to local conditional cautioning schemes once the offender has attended the initial assessment the condition has been completed. If the offender engages with the centre for additional services and then disengages this is not considered non compliance with the conditional caution.

Beneficiary group

The criteria are as simple as possible: police just need to be in contact with an adult they believe may have mental health issues and one or more other problems such as poor social networks or coping skills, or housing problems. The person can be a victim or complaining about the police, the service is not just for offenders. The geographic focus is all of Warrington.

In relation to local conditional cautioning schemes the beneficiary's will be offenders who are deemed suitable by custody and CPS for an out of court diversion.

Identification, Criteria for eligibility, and Referral by the police

The police deliberately do not mention 'mental health' to avoid stigma and raising unnecessary concerns. Instead they offer help to sort out the person's problem(s). Once consent is given the existing referral route used by the police for children and vulnerable adults has been widened to include these referrals. Individuals are identified by police officers and Police Community Support Officers from Community Action Teams and Targeted Patrol Teams. Referrals are made in the community, in custody suites, and when people are discharged with "no further action" by Warrington's local psychiatric unit after being taken there as a Place of Safety under Section 136 of the Mental Health Act. The unit which sees referrals for vulnerable adults also screens all of these and makes additional referrals to the service if any could benefit from its support.

In relation to local conditional cautioning schemes offenders will be identified at Custody as being eligible for referral and the CPS will further consider diversion in line with the DPP's Guidance on Adult Conditional Cautions.

Assessment, Tailored action plans and Review

Two social workers within the Criminal Justice Liaison Team (part of mental health services) receive referrals within a week of the police encounter and send a letter with a separate sheet with information on a range of services. The letter asks people to call or text a mobile to arrange an initial meeting at a place of the individual's choice (the mobile avoids going through mental health/social services switchboard, which could put people off and means people can text or leave messages as they want). If people do not respond then further contact attempts are made, including 'cold calling' at their address.

The holistic assessment includes physical health, support networks, housing, and benefits, as well as mental health.

A tailored action plan then offers: direct help, referrals, or signposting. Importantly mental health services'Outreach Team uses experienced non-qualified staff to link in with and provide support accessing services to those with higher needs. They work assertively and see them once a week during the eight week period of engagement.

The situation is reviewed two months after assessment. This includes people's views on the service itself and any other services they were referred to.

In relation to local conditional cautioning schemes once the offender has attended the initial assessment the condition has been completed. If the offender engages with the centre for additional services and then disengages this is not considered non compliance with the conditional caution.

Multi-agency Revolving Doors Panel

A panel discusses people who could not be contacted or those who are not engaging with the service when required. The focus is on those with high needs, a high level of previous police contact, or those for whom there are concerns about their safety. The panel also looks at those already assessed who require additional support, and considers how services can improve to meet peoples needs better.

Example of a conditional caution for attendance at a revolving doors centre

Practice example

Islington Neighbourhood Link worker pilot scheme

Revolving Doors Agency link workers have been working with the Metropolitan Police's Safer Neighbourhood Teams in Islington in order to support people with unmet mental health needs who are involved in low-level offending or anti-social behaviour. The project aims to prevent people becoming caught in the cycle of reoffending.

Practice example

Rainer Rapid Action Project

Essex police are working in conjunction with Rainer (a national charity for under-supported young people). Rainer workers are based at police stations in the county and take referrals from police officers about children and young people they believe to be at risk. The worker completes checks with relevant agencies and makes a home visit within 24 hours. Assessment and intervention is carried out in partnership with the family and referrals to specialist services are made if necessary.

Practice example

Cheshire police

Cheshire Constabulary follows a procedure whereby, if a petty offence has been committed but mental health problems seem apparent, officers prioritise the care and treatment of the individual. The officer has the option of inviting the person with mental health problems to the police station at a later date for a formal interview. During the interview, the individual is not placed under arrest and can leave at any time, although the presence of an Appropriate Adult is required. If an offence is admitted and the individual is entitled to a caution, then this course of action is followed, otherwise a report is sent to the Crown Prosecution Service (CPS) for their consideration.

Other forms of formal diversion include fixed penalties for public order offences or petty theft. These involve on-the-spot fines that the individual has up to 28 days to pay or face arrest for non-payment.

Practice example

Powys Diversion Scheme

In Powys there is a diversion scheme for offenders identified as having mental health needs. It aims to minimise the number of offenders with complex needs who are placed in the criminal justice system without adequate support. Custody officers can refer detainees to the scheme and community psychiatric nurses then assess offenders and make any recommendations or give evidence in court. Offenders can be diverted under the scheme to hospitals, housing schemes, bail hostels or support at home (either from community mental health teams or the voluntary sector).

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