Cautioning and Diversion
- Penalty Notices for Disorder
- Guidance - Ministry of Justice - Simple Caution for Adult Offenders - 14 November 2013
- Conditional Cautioning
- Net widening
- Public Interest Considerations and Serious Offences
- Views of the Victim
- Repeat Cautions
- Protection for Spent Cautions
- Procedure and Authorities
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 under 50 and 80 pounds 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 8 April 2013 previous PND guidance was replaced by the Ministry of Justice - Penalty Notices for Disorder (PNDs) guidance which can be found on GOV.UK
The Home Office Circular 16/2008 for Simple Cautioning was replaced on 8 April 2013 by the Ministry of Justice - Simple Caution for Adult Offender guidance (MoJ Guidance). Following a review of simple cautions this was further amended on 14 November 2013: https://www.gov.uk/government/publications/penalty-notices-for-disorder-guidance-for-police-officers
The MoJ Guidance applies to all decisions relating to simple cautions from the commencement date, regardless of when the offence was committed.
Like the previous Home Office guidance (Home Office Circular 16/2008) the MoJ Guidance states that whilst simple cautions are available for any offence they "are primarily intended for low level, mainly first time offending. An assessment of the seriousness of the offence is the starting point for considering whether a simple caution may be appropriate." Officers are referred to the National Decision Model and the Association of Chief Police Officers (ACPO) Gravity Factors Matrix to assist them in reaching this decision.
The following are the key amendments within the MoJ Guidance:
- Strengthening the guidance on when a simple caution can be used for more serious offences, including domestic violence. This was further strengthened in the guidance issued in November 2013 by clearly stating the levels of authorisation required (see Annex B).
- Clearer information on the consequences of a simple caution;
- Reflecting the amendment to the Rehabilitation of Offenders Act 1974 making simple cautions spent immediately;
- Reflecting the creation of the Disclosure and Barring Service (DBS)
- Setting out the appropriate procedure to challenge a simple caution;
- Additional guidance included from November 2013 also states that offences should not get more than one simple caution in a two year period for the same, or similar offence, except in exceptional circumstances.
As previously 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. The revised guidance issued in November 2013 provides that any such case can now only be referred to the CPS following consideration by a senior police officer of at least the rank of Superintendent who believes there are exceptional circumstances.
In addition the revised guidance issued in November 2013 provides that;
- Simple cautions should not be given for certain specified either way offences unless a senior police officer believes there are exceptional circumstances. The specified either way offences include:
- Possession of a bladed article, offensive weapon or firearm in public; including threatening with a bladed article or offensive weapon in a public place or a school;
- prostitution and pornography, cruelty to a child, indecent photographs of children; and
- Supplying Class A drugs.
- The decision to administer a simple caution for "other serious either way offences" must be made , in all cases, by a senior police officer. A list of these offences is set out in Annex B and are defined as those offences having a sentencing starting point in magistrates' court sentencing guidelines of custody or high level community order; or are either way offences routinely dealt with at the Crown Court.
The guidance sets out a non exhaustive list of factors to be taken into account when assessing whether there are "exceptional circumstances".
Annex A of the MoJ Guidance provides an overview of the factors for considering whether a simple caution is appropriate.
Under the MoJ Guidance the requirements that the evidential stage of the Full Code test and that the offender has made a clear and reliable admission remain as pre-requisite conditions.
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 9 of the Director's Guidance on Charging (5th Edition - May 2013) 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 general circumstances in which an out-of-court disposal (including simple and conditional cautions) may take the place of a prosecution. The diversion of youths is dealt with in section 4.12 (d) of the Code.
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, you should refer to the police any case in which you consider a caution is the appropriate disposal (see Code for Crown Prosecutors paragraph 10.1) and Director's Guidance on Charging (5th Edition - May 2013)
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).
On 8 April 2013 the Ministry of Justice published the following out-of-court disposal documents:
- A National Framework;
- A Quick reference guide in respect of Community Resolutions; Adult Cannabis Warnings; PNDs; youth cautions; Adult simple cautions; Youth Conditional cautions and adult Conditional Cautions. Each reference guide describes the three main stages in the process, namely:
- The decision making stage;
- The point the disposal is administered; and
- After the disposal has been administered
- Revised guidance on PNDs;
- Revised guidance on simple cautions;
- Youth cautions guidance;
- Revised Codes of Practice and Director's Guidance for adult and youth Conditional cautions.
These documents can be accessed at: https://www.gov.uk/government/publications/penalty-notices-for-disorder-guidance-for-police-officers
Specific guidance is also given in Youth Offenders, and Mentally disordered offenders chapters
When deciding on the public interest stage of the Code Test, prosecutors should consider each of the questions set out in paragraphs 4.12 a) to g). These questions are not exhaustive, and prosecutors will need assess the weight to be attached to each one when deciding if a prosecution is needed or that a caution is unlikely to be effective (see further, section 4 of the Code for Crown Prosecutors and also the MoJ Guidance on for simple cautions).
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.
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, and it is considered 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.
The provisions amending the Conditional Cautioning scheme under the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) Act 2012 came into effect on 8 April 2013 when the revised Code of Practice and revised Director's Guidance (7th Edition - April 2013) were published. Please refer to the Code and Director's Guidance on this site.
The main amendments are:
- Conditional Cautions are available for all offences in the same way that simple cautions and youth cautions are. Generally offences involving domestic abuse or hate crime will not be suitable for conditional caution. However, there are rare cases when, because of the nature of the crime or the circumstances of the offender, that exceptionally a conditional caution could be considered. The Director of Public Prosecutions has granted dispensation to a small number of police force areas to pilot conditional cautions in appropriate domestic abuse cases. In all other cases if a conditional caution is being considered then the lawyer must refer a domestic abuse case to the HQ VAW.StrategyManager@cps.gov.uk and a hate crime case to HQ Hate Crime team for advice;
- The police are permitted to offer a Conditional Caution and set conditions in the same circumstances in which they are permitted to offer a simple caution and youth caution. However any indictable only case considered by the police as suitable for a Conditional Caution must be referred to a prosecutor. A Conditional Caution will only be appropriate for an indictable only offence in the most exceptional circumstances. The decision to authorise a Conditional Caution in any Indictable Only offence must be approved by a Deputy Chief Crown Prosecutor;
- Financial penalty condition is now available nationally;
- Foreign Offender Conditions are now available. These conditions may only be offered to a non-European Economic Area foreign offender having no leave to enter or remain in the UK, and in respect of whom there is power to enforce departure. Foreign offender conditions may be offered in a case that would ordinarily result in the imposition of imprisonment following conviction, where the sentence likely to be imposed for the offence under consideration would be less than two years imprisonment. The offender may be required to:
- Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal;
- Obtain or assist authorities in obtaining a valid national travel document;
- Comply with removal directions and any lawful directions given to effect departure;
- Not to return to the UK within a specified period of time, normally five years as set out in the Immigration Rules.
Conditions may be reparative, rehabilitative and from 8 April 2013, punitive (financial penalty). However any conditions 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
On 20 October 2014 amendments to section 23 of the Criminal Justice Act 2003 came into force. This imposes a duty to consult victims about what conditions to attach to a conditional caution. The amendment provides that a "relevant prosecutor or the authorised person must make reasonable efforts to obtain the views of the victim..." and in particular their views on the actions listed in the community remedy document.
If the offender does not fulfil their side of the agreement by completing 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 condition(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.
If a police officer made the decision to offer a Conditional Caution then they must determine whether there is any reasonable excuse for non-compliance and if not what action is to be taken. However if it is considered that charging is appropriate and the offence is one that cannot be charged by the police the case must be referred to a prosecutor to decide whether to charge. When the decision to offer the Conditional Caution was made by a prosecutor the case must be referred back to a prosecutor.
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.
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. 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.
Both the MoJ Guidance on simple cautions and the Director's Guidance on Conditional Cautions (7th Edition - April 2013) provide 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.
Both sets of Guidance state that the seriousness of the offence and the range of penalties likely to be imposed must be carefully considered taking into account the Magistrates' Court Sentencing Guidelines. Cases routinely dealt with at the Crown Court or likely to be considered for a high level community order or custodial sentence should generally proceed to court unless there are "exceptional circumstances".
In assessing whether exceptional circumstances exist, the following factors must be taken into account:
- The extent of culpability and/or harm caused;
- The degree of intention or the foreseeability of any resultant harm;
- Any significant aggravating factors;
- Any significant mitigating factors;
- The lack of any recent similar previous convictions or cautions;
- Any other factors relating to the offender or the commission of the offence likely to have a significant impact on sentence;
- The overall justice of the case and whether the circumstances require it to be dealt with in open court;
- The range of sentences appropriate to the circumstances of the case.
Annex B in the revised MoJ guidance on simple cautions issued on 14 November 2013 sets out the levels of authorisation required when dealing with indictable only offences; specific either way offences; and other serious either way offences.
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 victims 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.
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.
In the case of youth offenders, decisions as to whether a youth caution or a Youth Conditional Caution as opposed to charging is appropriate, should take account of the ACPO Guidelines on Case Disposal Gravity - Youth Offenders.
The Guidelines reflect public concern about repeat cautioning. Accordingly the MoJ guidance issued on 14 November 2013 provides that "a simple caution should not be given where the person has been cautioned for or convicted of the same or similar offences within two years of the commission of the current offence unless there are exceptional circumstances". The determination that "exceptional circumstances " exists must be made by an officer of at least the rank of Inspector.
The Director's Guidance on Conditional Cautions (7th Edition - April 2013)provides that the decision maker should take into account any history of previous convictions and cautions, particularly any which are recent or of a similar nature. However a record of previous offending should not rule out the possibility of a Conditional Caution especially where there have been no similar offences during the last two years or where it appears that the Conditional Caution is likely to change the pattern of offending behaviour.
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 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, 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 persons 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.
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 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.