Cautioning And Diversion
Guidance
National Standards for Cautioning
The National Standards for Cautioning require that the following conditions are met before a caution may be administered by the police:
- there is a realistic prospect of conviction;
- the offender admits the offence;
- the offender (or appropriate adult) understands the significance of a caution and gives informed consent to being cautioned. (Prosecutors should note that the Divisional Court held that when police were prepared to caution a suspect, 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 (Director of Public Prosecutions v Ara, TLR 16 July 2001).
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 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, elsewhere in this guidance explains the principles to be applied in balancing factors for and against prosecution. The public interest does not automatically require a prosecution.
The Code states that where necessary, Crown Prosecutors should consider alternatives to prosecution and apply the principles set out in Home Office Circular 30/2005 when deciding where the public interest lies. Diverting offenders from the criminal justice system can bring positive benefits for the individual and for society as a whole if used wisely.
Only the police have the power to administer a caution. The Service does, however, have a role to play in helping the police to ensure that the Home Office Guidelines on the Cautioning of Offenders are applied consistently and fairly. Accordingly, you should refer to the police any case in which you consider a caution is the appropriate disposal.
Cautioning is the only formal disposal which falls short of prosecution; but it is not the only way to divert an individual from the criminal justice system. Specific guidance is given in Youth offenders, elsewhere in this guidance and Mentally disordered offenders, elsewhere in this guidance. This section sets out the general principles.
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, a caution is unlikely to be effective.
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
The National Standards for conditional cautioning require that the following conditions are met before a conditional caution may be administered:
- There is enough evidence to bring charges and it is in the public interest to do so;
- The offender has admitted the offence and is aged 18 or over;
- The offender agrees to accept the caution and to carry out the conditions;
- The most likely outcome of attending court would have been a small fine, compensation, conditional discharge or a community penalty at the lowere end of the scale; and
- The use of reparative or rehabilitative conditions is felt to be the most effective way of dealing with the offending behaviour and/or recompensing the victim.
Only a Crown Prosecutor may decide whether a person is to be made the subject of a conditional caution. The Code for Crown Prosecutors, elsewhere in this guidance, explains the principles to be applied in balancing factors for and against prosecution.
Conditions may be restrictive, reparative or rehabilitative and must be appropriate and proportionate.
If the offender does not fulfil their side of the agreement, then 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.
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 formal 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.
Serious offences
The Cautioning Guidelines reinforce Home Office guidance 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, in which a caution is appropriate because of the particular circumstances of the offence or the offender. Such cases are likely to be unusual. If local liaison arrangements are working properly, these cases should be referred to the CPS for advice.
Indictable only offences
It is possible that the number of cautions for indictable offences is accounted for in part by the caution having been given for the offence, which was reported or first suspected, rather than the offence which is revealed by the evidence at the end of the investigation. The Cautioning Guidelines remind the police to caution for the correct offence.
It will only be in rare circumstances that a caution will be a suitable disposition for an indictable offences committed by an adult.
In the case of youth offenders, decisions as to whether a reprimand or final warning as opposed to charging is appropriate, should be taken in accordance with the ACPO Guidelines on Case Disposal Gravity - Youth offenders, elsewhere in this guidance.
Public Interest considerations and the views of the victim
The Cautioning Guidelines state that the effect on the victim and their views about the offence are important factors to be taken into consideration. This reflects the Code for Crown Prosecutors, and the Cautioning Guidelines recommend that the police should take into account the public interest principles set out in the Code for Crown Prosecutors, elsewhere in this guidance.
Repeat cautions
The Guidelines reflect public concern about repeat cautioning. As a general rule, it is not appropriate for the police 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.
"A sufficient" lapse of time will vary according to the age and other characteristics of the defendant 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.
Procedure
Refusal by the police to caution
If you are satisfied that a caution is appropriate, refer the case back to the police with an appropriate recommendation.
The recommendation should be made or confirmed in writing wherever possible or practicable, giving an explanation of your reasons. If after full consultation with the police, you remain satisfied that a caution is appropriate but the police refuse to administer one, the case should not be accepted for the prosecution. If proceedings have already commenced, the case should be discontinued.
Useful references
Sections 37 and 37 B into the Police and Criminal Evidence Act 1984
Director of Public Prosecutions v Ara, TLR 16 July 2001
R v The Metropolitan Police, ex parte Andre Anthony Thompson, TLR 18 December 1996
Code for Crown Prosecutors, elsewhere in this guidance
Youth offenders, elsewhere in this guidance
Mentally disordered offenders, elsewhere in this guidance
Further information
Home Office Circular 30/2005 'The Cautioning of Offenders'.