Cautioning and Diversion

updated 23/09/19|Legal Guidance

Introduction

There are a range of formal out-of-court disposals available to the police and prosecutors for dealing with adult offenders. This guidance sets out the legal framework for dealing with low-level, mainly first-time, offending without a prosecution. A simple caution may only be given where specified criteria are met. 

The framework of the simple caution scheme for adults is contained in the Ministry of Justice - Simple Caution for Adult Offender Guidance (MoJ Guidance).

It applies to all decisions relating to simple cautions from the commencement date on 13 April 2015 regardless of when the offence was committed and must be read in conjunction with the Director’s Guidance on Charging and the Code for Crown Prosecutors.

Headlines 

  • Simple cautions provide a means of dealing with low-level, mainly first-time, offending without a prosecution.
  • A simple caution must not be offered to a person who has not admitted to committing the offence, and must not be given to an offender who does not agree to accept the simple caution.
  • A simple caution must not be given if the decision-maker considers that it is in the public interest for the offender to be prosecuted.
  • A simple caution should not be confused with a conditional caution (a caution with conditions attached). Conditional cautions were introduced by the Criminal Justice Act 2003. Guidance on the conditional caution scheme is contained in the Code of Practice for Adult Conditional Cautions and the Director’s Guidance on Adult Conditional Cautions.
  • Before a simple caution (or a Conditional 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. 

Overview

The MoJ Guidance states that “The simple caution scheme is designed to provide a means of dealing with low-level, mainly first-time, offending without a prosecution.”

The following are pre-requisites:

  • The offender has admitted the offence;
  • The offender is willing to accept the caution;
  • There must be sufficient evidence to provide a realistic prospect of a conviction if the offender were to be prosecuted;
  • The offence is not one where a prosecution is required in the public interest.

Simple cautions form part of the offender’s criminal record. They may be referred to in future legal proceedings and may be revealed as part of a criminal record check..

Decision Making Powers

Summary and Either-way Offences - Paragraph 15 of the MoJ Guidance states that: “The police may make the decision to offer a simple caution in relation to any summary or either-way offence without reference to the CPS, unless the Director’s Guidance on Charging requires the case to be referred to the CPS for a charging decision.”

The exception in cases where the police must obtain CPS advice to charge (which includes cases of Domestic Abuse and Hate Crime) was modified in August 2018 by the ‘Director’s Interim Guidance on Out-of-Court Disposals in Hate Crime and Domestic Abuse Cases’. This confirms that:

  • Out-of-court-disposals are available for use by the police in relation to Hate Crime and Domestic Abuse cases in the same way as any other type of offence;
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  • There is no requirement for the police to refer Hate Crime or Domestic Abuse cases to the CPS for approval of an out-of-court disposal.
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  • The sole exception are conditional cautions which are considered to be generally inappropriate in Hate Crime and Domestic Abuse cases and which can only by given in exceptional circumstances with the authority of a CPS prosecutor;

Indictable-only Offences - Section 17(2) of the Criminal Justice and Courts Act 2015 prohibits the police from giving a simple caution to an offender for an indictable-only offence unless the CPS agrees that a caution should be given. Furthermore, the Director’s Guidance on Charging requires the police to refer all indictable-only offences to the CPS for a charging decision, and any such decision will be binding upon the police.

The Offence

Simple cautions are available for any offence, although they are “primarily intended for low-level, mainly first time offending”. There are also statutory restrictions on their use in indictable-only and specified either-way offences (see below).

An assessment of seriousness of the offence is the starting point for considering whether a simple caution may be appropriate. The more serious the offence, the less likely it is that a simple caution will be appropriate.

In assessing seriousness police officers should use the National Decision Making Model and the College of Policing Gravity Factor Matrix. Decision-makers should also carefully consider the sentence likely to be imposed in the event of a conviction, taking into account the Magistrates’ Courts Sentencing Guidelines. Offences which are likely to result in a custodial sentence (whether immediate or suspended) or a high-level community order should generally be prosecuted. If the offence is also a sexual offence or involves violence against the person especial care should be exercised before offering a simple caution.

Indictable-only offences

Section 17(2) of the Criminal Justice and Courts Act 2015 restricts the use of simple cautions for indictable-only offences (offences which, if committed by an adult, are triable only on indictment). An offender must not be given a simple caution for such an offence unless a police officer of at least the rank of Superintendent determines that there are exceptional circumstances relating to the offender or the offence, and the CPS agree that a caution should be given.

Specified either-way offences

Section 17(3) of the Criminal Justice and Courts Act 2015 restricts the use of simple cautions for certain either-way offences (offences which, if committed by an adult, are triable either on indictment or summarily). An offender must not be given a simple caution for an either-way offence that has been specified by the Secretary of State unless a police officer of at least the rank of Inspector determines that there are exceptional circumstances relating to the offender or the offence.

The either-way offences that have been specified by the Secretary of State are summarised as follows:

  • Offensive weapon and bladed article offences;
  • Carrying a firearm in a public place;
  • Child cruelty;
  • Sexual offences against children (including those relating to child prostitution and pornography);
  • Sex trafficking offences;
  • Indecent and pornographic images of children;
  • Importing, exporting, producing, supplying and possessing with intent to supply to another Class A drugs.

The MoJ guidance sets out a non-exhaustive list of factors to be taken into account when assessing whether there are "exceptional circumstances".

Furthermore Annex A of the Guidance provides an overview of the factors for considering whether a simple caution is appropriate.

The Code for Crown Prosecutors also sets out at in section 7 the general circumstances in which an out-of-court disposal (including simple and conditional cautions) may take the place of a prosecution. Information about Simple Cautioning for Adult offenders (including the gravity factor matrix) can also 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 Ministry of Justice guidelines contained within the Guidance are applied consistently and fairly. Accordingly, the prosecutor should refer to the police any case in which they consider a caution to be the appropriate disposal.

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 (PND- see below).

Conditional Cautioning

Prosecutors are referred to the following discrete chapters of Legal Guidance which deal with Conditional Cautions:-

Views of the Victim

Before a simple caution (or a Conditional 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 might be preferable to a simple caution.

Victims' views although important cannot be the deciding factor. That decision must be made by the decision maker in the light of all the circumstances of the case.

Repeat Cautions

Section 17(4) of the Criminal Justice and Courts Act 2015 restricts the use of simple cautions for repeat offending. An offender must not be given a simple caution for a summary offence (an offence which, if committed by an adult, is triable only summarily) or an either-way offence that has not been specified by the Secretary of State if in the two years before the offence was committed the offender has been convicted of, or cautioned for, a similar offence, unless a police officer of at least the rank of Inspector determines that there are exceptional circumstances relating to the offender, the present offence or the previous offence. A police officer of at least the rank of Inspector must also determine whether a previous offence was similar. Section 17(6) of the Act requires a decision on whether there are exceptional circumstances to be made in accordance with the guidance in paragraphs 40-41 and a decision on whether a previous offence was similar to be made in accordance with the guidance in paragraph 42.

An offender is to be treated as having been cautioned for a previous offence if they were given a simple caution, a conditional caution, a youth caution or a youth conditional caution.

Exceptional circumstances

A decision-maker is only permitted to conclude that there are exceptional circumstances justifying a simple caution if satisfied that, were the offender to be convicted of the offence, the sentencing court would be unlikely to impose a custodial sentence (whether immediate or suspended) or a high-level community order.

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 (and from 8 April 2013 youth cautions and Youth Conditional Cautions) all became subject to the provisions of the Rehabilitation of Offenders Act 1974 (ROA).

Cautions (including reprimands and warnings and from 8 April 2013 youth cautions) become spent at the time when they are given i.e. immediately. Conditional Cautions and Youth Conditional Cautions will be regarded as spent three 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 relating to spent convictions set out in paragraph 21A of the Consolidated Criminal Practice Direction (CCPD) applies equally to spent cautions and is to be followed. This means that prosecutors should not refer in open court to the existence of a spent caution, reprimand or warning, youth caution, or Conditional Caution 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 21A.2 of the CCPD.

Procedure and Authorities

If a prosecutor decides that a caution is appropriate, where possible this should be discussed with the police before the case is referred back to them for the caution to be administered.

The authority for the CPS to make a decision to caution (whether simple or conditional) is contained within s.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; and
  • 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 (now a youth caution).

The authority for Conditional Cautioning is contained within Part 3 of the Criminal Justice Act 2003.

‘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, such as a Community Resolution.

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. Prosecutors should be aware that the existence of a formal method of disposal falling short of prosecution gives rise to a danger that an offender may be cautioned when a more informal action might have been more appropriate.

Penalty Notices for Disorder

A Penalty Notice for Disorder (PND) is a statutory disposal introduced by the Criminal Justice and Police Act 2001 (sections 1-11). A PND is a type of fixed penalty notice for a specified range of low level offences, for example Drunk and Disorderly. It is only available to those over 18 years of age.

PNDs are divided into lower and upper tier offences depending on seriousness and attract penalties of £90 and £90 respectively. A person has 21 days from the date the PND is given either to pay the penalty amount in full or request a court hearing (or in some cases ask to attend an educational course). Where the PND is paid in full that discharges any liability to be convicted of the penalty offence but the paying of the penalty is not an admission of guilt.

If a person fails to pay the penalty amount in full or request a court hearing (or, in some cases, ask to attend an educational course) within 21 days then a fine one and half times the penalty amount will be registered in the magistrates' court.

There is no admission of guilt required to give a PND but there must be sufficient evidence to support a successful prosecution.

If the offender requests a court case the prosecutor must review the file in accordance with the Code for Crown Prosecutors.

On the 24 June 2014 previous PND guidance was replaced by the Ministry of Justice - Penalty Notices for Disorder (PNDs) guidance which can be found at: http://www.justice.gov.uk/out-of-court-disposals