Conditional Cautioning: Adults – DPP Guidance

Updated 01 November 2019|Legal Guidance

Issued to Police Officers and Crown Prosecutors under S37A of the Police and Criminal Evidence Act 1984

Introduction

1.1 In determining whether to offer a Conditional Caution in any case authorised persons and relevant prosecutors must follow the Code of Practice for Adult Conditional Cautions 2013 and comply with this Guidance.

1.2 This Guidance assists Authorised Persons and Relevant Prosecutors (the decision makers) to apply the Code of Practice on Adult Conditional Cautions in deciding how an offender should be dealt with when it is determined that:

  • there is sufficient evidence to charge an offender with an offence; and
  • the public interest in the case may be met by a caution with suitable conditions providing reparation to the victim or community; which may modify offending behaviour; ensure the departure and non-return of a foreign offender from the UK; or provide an appropriate penalty; and
  • In all the circumstances of the case a Conditional Caution appears appropriate

1.3 This Guidance specifies:

  • the offences and circumstances when a Conditional Caution may be considered and whether the decision to offer one may be made by a police officer or is to be referred to a prosecutor.
  • the practical arrangements for recording decisions in cases, consulting with the UK Border Agency, making referrals to prosecutors and for dealing with non-compliance with any conditions.

Authorised persons

2.1 An authorised person (for the purpose of administering a Conditional Caution) is a police officer not below the rank of Sergeant or any person specifically authorised to do so by the Director of Public Prosecutions.

Conditional Caution in offences involving domestic abuse or hate crime

3.1 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, exceptionally a Conditional Caution could be considered. Any such case considered by the police as suitable for a Conditional Caution must be referred to a prosecutor.

3.2 If a Conditional Caution is being considered in an offence involving domestic abuse or hate crime then the prosecutor must refer a domestic abuse case to the HQ VAWG team VAW.StrategyManager@cps.gov.uk and a hate crime case to HQ Hate Crime team HateCrime.Policy@cps.gov.uk for advice. Otherwise a Conditional Caution may be considered in any case in the circumstances set out below.

Summary and either-way offences

4.1 An authorised person may offer a Conditional Caution for any summary-only offence and any either-way offence. For serious either-way offences, a Conditional Caution may only be offered if the Foreign National Offender provisions apply or in exceptional circumstances as set out below. The decision that exceptional circumstances exist in any case may only be made by a police officer not below the rank of Inspector.

Offences committed by Relevant Foreign Offenders

5.1 The Code of Practice makes specific provision for offences committed by Foreign Offenders where a Conditional Caution is proposed to facilitate the removal of the offender from the jurisdiction and ensure non-return. In such cases the greater public interest is in removal from the jurisdiction and the Code permits consideration in any case where the decision maker considers that the sentence likely to be imposed by the court for the offence concerned will not exceed 2 years imprisonment. Further guidance is provided below on how that may be assessed. The authorised person or prosecutor must record the reasons for reaching this conclusion in any case.

Indictable-only offences to be referred to prosecutors

6.1 As such offences will generally attract significant custodial sentences on conviction the maintenance of public confidence in the Justice System will ordinarily require such cases to be dealt with at court. Any indictable-only case considered by the police as suitable for a Conditional Caution must be referred to a prosecutor.

6.2 Unless the foreign offender conditions are to be offered, only in the most exceptional circumstances will a Conditional Caution be an appropriate way of dealing with such a case. The decision to authorise a Conditional Caution in any Indictable Only case must be approved by a Deputy Chief Crown Prosecutor.

6.3 Before considering referring any indictable only offence to a prosecutor, authorised persons must first determine that exceptional circumstances as set out below are present in the case or that the foreign offender conditions are appropriate.

Identification of cases in which a Conditional Caution is permissible

7.1 Police and prosecutors should ensure that a Conditional Caution is considered in any case for which it is permitted and provides an appropriate outcome for the victim, community and offender.

7.2 Where a Conditional Caution with suitable conditions may provide reparation to the victim or community; be effective in modifying offending behaviour; facilitate removal from the jurisdiction and ensure non-return; or provide an appropriate penalty, the offender should not be charged unless it is determined that the case is too serious for a conditional caution to be appropriate.

Making prompt decisions

8.1 Wherever possible, the decision to administer a Conditional Caution should be made as early as possible and while the offender is still in custody. If, for any reason, this is not possible, the offender (including a foreign national) may be released on bail, with or without conditions (under section 37(7) PACE) for a short period unless there are operational reasons or other circumstances relating to the victim or offender justifying a longer period, or where further information is required relating to the consideration of any specific condition.

Prosecutor's post charge review cases that should have been considered for a Conditional Caution

9.1 Where an offender is charged with an offence, but it appears upon review by a prosecutor that a Conditional Caution is more appropriate, the reviewing prosecutor should direct an authorised person to offer a Conditional Caution. This includes any case where authorised persons ordinarily make that decision. The current prosecution should be adjourned whilst this action is taken. The authorised person shall then offer a caution with conditions as specified by the prosecutor. If it proves then not to be possible to administer the caution an alternative out of court disposal may not be offered and the prosecution must continue.

9.2 In the case of foreign offenders this may include cases where an asylum or human rights claim has been withdrawn or resolved after charge.

Deciding whether a Conditional Caution is a suitable response - Requirement for sufficient evidence to charge the offender

10.1 Before a Conditional Caution can be considered, there must be sufficient evidence available to provide a realistic prospect of conviction in accordance with the Full Code Test set out in the Code for Crown Prosecutors.

10.2 In making this assessment, an authorised person may offer a Conditional Caution where;

  • The suspect has made a clear and reliable admission to the offence and has said nothing that could be used as a defence, or
  • The suspect has made no admission but has not denied the offence or otherwise indicated it will be contested and the commission of the offence and the identification of the offender can be established by reliable evidence or the suspect can be seen clearly committing the offence on a good quality visual recording

Deciding whether a Conditional Caution is a suitable response – Assessing the Public Interest

11.1 Once the evidential test is met, the decision maker must then be satisfied that the public interest can best be served by the offender complying with suitable conditions aimed at reparation; rehabilitation; removal from the UK and ensuring no return for a period; or punishment, taking into account the interests of the victim, the community, and/or needs of the offender. They must also be satisfied that a prosecution will continue to be necessary, and could go ahead, should the offer of a Conditional Caution be declined or the offender does not complete the conditions.

11.2 In determining whether a Conditional Caution is appropriate to the circumstances of an offence decision makers must assess the seriousness of the case to ensure that this out-of-court disposal provides an appropriate and proportionate response to the offending behaviour and meets the justice of the case.

Assessing seriousness

12.1 An assessment of the seriousness of the offence is the starting point for considering whether a Conditional Caution may be appropriate. The more serious the offence, the less likely a Conditional Caution will be appropriate. Wherever the circumstances of an offence indicate that an immediate custodial sentence or high level community order is the appropriate sentence, a Conditional Caution should not be offered unless the specific provisions concerning foreign nationals apply or the exceptional circumstances set out below are met. The Magistrates' Court Sentencing Guidelines provides a sentencing starting point for a range of offences at high level community order or period of imprisonment. Those specific either way offences are set out in Annex A.

12.2 The seriousness of the offence and the range of penalties likely to be imposed must be carefully considered in every case taking into account the Magistrates' Court Sentencing Guidelines. Cases routinely dealt with at the Crown court (specified in the Guidelines and set out in Annex A) or likely to be considered for a high level community order or period of imprisonment should generally proceed to court.

12.3 Indictable-only offences must be referred to prosecutors to determine whether a Conditional Caution is appropriate, including where foreign offender conditions may be suitable. A Conditional Caution will only be appropriate for an indictable only offence in the most exceptional circumstances. In considering such cases prosecutors will assess the factors referred to below and make a review record of the exceptional circumstances found.

12.4 Police decision makers will also need to consider and apply the ACPO gravity factors matrix when considering whether to issue a Conditional Caution.

Considering the totality of offending and history of offending

13.1 In assessing the seriousness of the offence under consideration and determining whether the case should proceed to court or is suitable for a Conditional Caution the decision maker should also take into account the totality of any current offending and 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.

13.2 It is unlikely that domestic abuse in intimate (whether current or previous) partner cases would ever be appropriate for conditional caution. This is because of the repetitive pattern of domestic abuse and the risk experienced by victims. However, where there are no elements of controlling and coercive behaviour, and where there is no pattern of abuse or repetitive behaviour there may be rare occasions in domestic abuse cases not involving intimate partners where a conditional caution could be considered. The specific chapter of legal guidance on Domestic Abuse may be helpful when considering whether this is an exceptional case.

13.3 It is unlikely that hate crime offences would be appropriate for conditional cautions. This is because of the serious nature of these offences and the targeting of an individual because of their personal characteristics, or perceived personal characteristics. The devastating impact of hate crimes on, not only the individual, but also on communities and wider society demands a robust response and the opportunity to apply for a sentence uplift to send the clear message that those who target people because of their race, religion, sexual orientation, transgender identity or disability should expect to receive a higher sentence. However there may be rare occasions, for example a young person of good character, which may merit the consideration of a conditional caution. The specific chapters of legal guidance on Racist and Religious Hate Crime, Homophobic, Biphobic and Transphobic Hate Crime, and Disability Hate Crimeand other Crimes against Disabled People may be helpful when considering whether this is an exceptional case.

13.4 In such cases prosecutors should ensure that they have fully considered the risk assessment provided by the police, the history of the relationship and the circumstances of the offence before seeking additional advice from the HQ VAWG team VAW.StrategyManager@cps.gov.uk or HQ Hate Crime team.

Exceptional circumstances where a Conditional Caution may be appropriate for an offence likely to attract a high level community order or a custodial sentence

14.1 The decision to offer a Conditional Caution for an indictable only offence, an either way offence routinely dealt with at the Crown court or likely to attract a high level community order or sentence of imprisonment, may only be taken in exceptional circumstances where the decision maker is able to conclude that the public interest does not require the immediate prosecution of the offender and that if it took place a court would not impose a period of imprisonment or high level community order.

14.2 In reaching that conclusion, the decision maker must carefully assess the public interest in the case and the likely sentence informed by the appropriate sentencing guidelines and authorities. The decision maker must record (on an MG6) the reason for concluding that exceptional circumstances are met in the case. Authorised persons should only refer indictable only cases to prosecutors where they are able to clearly specify the exceptional circumstances present in the case in accordance with this guidance.

14.3 In assessing whether exceptional circumstances exist in a case, 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 the offender or 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

14.4 Any aggravating circumstances, including the methodology employed by the offender (for example, any breach of trust or advantage taken of the vulnerable or young) may all increase the seriousness of the offence to the point where the case should proceed to court.

The decision to offer a Conditional Caution

15.1 The decision makers' review

15.1.1 A Conditional Caution may be appropriate where the decision maker believes that while the public interest requires a prosecution in the first instance the interests of the victim, community or offender are better served by the offender complying with suitable conditions aimed at reparation, rehabilitation, punishment or in the case of a foreign national offender removal from the jurisdiction.

15.1.2 It must be determined that a Conditional Caution is likely to be effective and should be offered. Guidance for the selection of appropriate conditions is attached at Annex B.

15.1.3 Where the offender shows genuine remorse, indicates a willingness to be cautioned and comply with the proposed conditions a Conditional Caution may be considered. A Conditional Caution will not be appropriate for an offender who fails to accept responsibility at the time the caution is administered.

15.1.4 Where the offender indicates that they do not wish to accept the caution or any of the conditions at that stage, the case will be considered again by the decision maker who will determine whether alternative conditions are appropriate or whether the case should proceed to prosecution. Where it proves not to be possible to give the caution because it is not accepted or reasonable conditions are declined the offender should be charged with the offence. In such circumstances an alternative out of court disposal may not be offered.

15.2 Foreign Offender Conditions

15.2.1 Such conditions may only be offered to a foreign offender having no leave to enter or remain in the UK and in respect of whom there is power to enforce departure. They cannot be offered where the offender makes or has an outstanding asylum or Human rights claim to remain in the UK or where the offender admits to committing a document or identity fraud offence in order to make a claim for asylum or where the offender may be a trafficked victim. This does not, however, prevent foreign offender conditions from being offered where the asylum or human rights claim has been refused (and any appeal against that refusal has been finally determined), where the relevant foreign offender voluntarily withdraws the claim, or where the relevant foreign offender's grant of asylum has been revoked or not renewed by virtue of paragraph 339A of the Immigration Rules. The police must consult the UK Border Agency who will confirm the offender's status and that of any dependents and whether the individual can be removed from the UK. This information must be available to the decision maker at the time the Conditional Caution is offered.

15.2.2 Foreign offender conditions may be offered in a case that would ordinarily result in the imposition of imprisonment following conviction. However it may only be offered where, in all the circumstances of the case, the decision maker assesses that the sentence likely to be imposed for the offence under consideration would be less than two years imprisonment. The decision maker must make a record of the reason for reaching that conclusion. 15.2.3 The purpose of the Conditional Caution will be to bring about the departure of the offender from the UK and to ensure that return does not occur for a specified period of time. Both of these objectives should be set as conditions in every case. They should only be used where it will be practicable to remove the person within a reasonable period of time. 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 5 years as set out in the Immigration Rules.

15.2.4 Priority should be given to conditions to facilitate the early removal of the offender from the UK; however any other rehabilitative, reparative, or punitive conditions appropriate to the circumstances of the case may also be included provided the circumstances of the offender and any detention under immigration powers permit completion. Other conditions should not be included if they are likely to delay the removal or may not be completed prior to the likely removal date. 15.2.5 The normal period not to return should be 5 years. However there may be indictable only cases involving a foreign offender where a prosecutor considers that exceptional circumstances exist permitting the offer of a Conditional Caution including a condition preventing return for a period of 10 years instead

15.3 Offering a financial penalty condition

15.3.1 A financial penalty can only be attached to a conditional caution in accordance with the provisions of an Order made under section 23A of the Act. Currently the maximum amounts that may be specified in a financial penalty condition are:

Any summary offence £50

Any offence triable either way £100

Any offence triable only on indictment £150

15.3.2 When attaching a financial penalty condition, the amount of the penalty, the designated officer for the local justice area to whom the penalty must be paid, and the address of that officer for payment must be set out in the documentation to be handed to the offender at the time of the administration of the Conditional Caution.

Practical arrangements for the referral of cases

16.1 Consultation with UK Visas and Immigration

16.1.1 As soon as it appears that a foreign offender has been detained the custody officer should contact UK Visas and Immigration (UKVI) to establish whether the individual is classified as a relevant foreign offender. Once confirmed UKVI will provide any immigration papers required and will liaise over the appropriate conditions to be offered.

16.2 Referral of cases to prosecutors

16.2.1 Where an authorised person considers that, exceptionally, an indictable only offence may be appropriate for a condition caution the case must be referred to a prosecutor. This will be done by submitting the case to the Head of the Crown Court Unit for the relevant CPS Area. The CPS Area will provide a response within 7 days. If, for any reason, it proves not to be possible to administer the caution the offender should be charged with the offence and may not be offered any other out of court disposal.

16.3 Requirements for an MG5

16.3.1 In any case which is to be referred to a Crown Prosecutor the police will prepare an MG5 report and will attach to it the complainant’s witness statement and any other evidential material necessary to establish whether the Full Code Test is met. An MG6 must be provided setting out the views of any victim and (where appropriate) the Inspectors assessment of the exceptional circumstances considered by the police to be present in the case justifying the offer of a Conditional Caution. Confirmation by the UKVI as to the status and ability to remove from the UK of any foreign offender will also be required where the removal and non-return conditions are to be considered.

16.4 Contents of the MG5 Report

16.4.1 The MG5 report should set out the circumstances of the offence, summarising any admissions in interview, providing the details of any victims and any previous convictions or cautions applicable to the offender. An MG6 should set out any views of the victim as to any restorative or reparative conditions and details of any compensation to be considered. The report should set out the proposed conditions to be included and confirm that the offender is willing to admit the offence and be cautioned.

16.5 Police decision making - recording the decision

16.5.1 The authorised person must make a brief record of the reasons why a Conditional Caution was or was not considered appropriate in any case and why any particular conditions were selected. The reasons should specify whether reparative, rehabilitative or punitive objectives were sought to be achieved. This may be recorded on an MG6 or a case review document. 16.5.2 As any refusal to be conditionally cautioned or failure to complete conditions may lead to subsequent prosecution authorised persons should ensure that details of the evidential basis for the decision are recorded including sufficient witnesses details to enable an appropriate file to be provided to the prosecutor. This may be done by completion of an MG5 or a case review document.

16.6 Authorising the Conditional Caution

16.6.1 Once satisfied that the Conditional Caution and the proposed conditions are an appropriate and proportionate response to the offending behaviour, the decision maker will complete the Authority to Give a Conditional Caution which will be retained with the MG5 or case review document. A copy of the Authority to Give a Conditional Caution (MG14) is attached at Annex C.

16.7 Dealing with non-compliance with Conditions

16.7.1 If following administration of the caution it becomes clear that the offender is not complying with any conditions the decision maker must determine whether there is any reasonable excuse for that non-compliance and if not what action is to be taken. In determining what action to take at that stage the decision maker may deem the caution as completed, vary conditions or prosecute for the original offence. An alternative form of out of court disposal may not be offered.

16.7.2 Where the original decision to offer the caution was made by an authorised person the authorised person may make that decision but 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. Where the decision to offer the Conditional Caution was made by a prosecutor the case must be referred back to a prosecutor.

16.7.3 Once a decision is made as to how the non-compliance is to be dealt with, the police with ensure that PNC is updated to record that.

16.8 Retention of papers to prosecute following non-compliance

16.8.1 Once a Conditional Caution has been authorised in any case, the MG5 (or any other record of the decision), the Inspectors finding as to any exceptional circumstances, the Authority to give a Conditional Caution and confirmed MG14 will be retained by the police pending completion of the conditions. This material will be used in the event of a prosecution resulting from any non-compliance. Any information concerning the personal details of victims and their views must not be included in any information provided to the offender or their legal representative. In the event of a prosecution for non-compliance the police will only be requested to provide witness statements following a not guilty plea and case management hearing where the issues in dispute in the case have been identified.

16.9 Guidance on incorrect or inappropriate conditional cautioning decisions is attached at Annex D.

Commencement

17.1 This Guidance will come into effect in England and Wales on 8th April 2013. KEIR STARMER QC DIRECTOR OF PUBLIC PROSECUTIONS

Annex A: Either Way Offences Having a Sentencing Starting Point in a Magistrates' Court at Custody or High Level Community Order

Either Way Offences Having a Sentencing Starting Point in a Magistrates' Court at Custody or High Level Community Order

Assault occasioning actual bodily harm - S.47 OAPA 1861

Wounding or causing grievous bodily harm - S.20 OAPA 1861

Possession of an offensive weapon - S.1Prevention of Crime Act 1953

Possession of a bladed article - S.139 Criminal Justice Act 1988

Harassment – putting people in fear of violence - S.4 Protection from Harassment Act 1997

Stalking - involving violence or serious alarm or distress - S4A Protection from Harassment Act 1997

Violent Disorder - S.2 Public Order Act 1986

Affray – S3 POA 1986

Cruelty to a child - S.1 Children and Young Persons Act 1933

Sexual Assault – S3 & S7 Sexual Offences Act 2003

Witness Intimidation - S.51 Criminal Justice and Public Order Act 1994

Either Way Offences Routinely Dealt with at the Crown Court

Arson – S 1 and S 4 Criminal Damage Act 1971

Assault occasioning actual bodily harm (including Racial or religiously aggravated) - S.47 OAPA 1861

Assault W/I to resist arrest – S38 OAPA 1861

Bladed article/offensive weapon, possession of - S.139 Criminal Justice Act 1988

Burglary (dwelling) – S9 Theft Act 1968

Burglary (non-dwelling) - S9 Theft Act 1968

Child prostitution and pornography – Sexual Offences Act 2003

Criminal damage (including Racial or religiously aggravated) over £5,000 – Criminal Damage Act 1971

Cruelty to a child - S.1 Children and Young Persons Act 1933

Drugs –class A – possession –Misuse of Drugs Act 1971

Drugs – Class A Produce – Supply - Misuse of Drugs Act 1971

Drugs –Class B & C – supply possess w/I to supply Misuse of Drugs Act 1971

Drugs – Cultivation of cannabis - Misuse of Drugs Act 1971

Exploitation of prostitution - S33A, S52-53 Sexual Offences Act 2003

Firearm, carrying in a public place – S 19 Firearms Act 1968

Fraud (banking & insurance) – Fraud Act 2006

Fraud (confidence) – Fraud Act 2006

Fraud (possessing, making or supplying articles for use) – Fraud Act 2006

Grievous bodily harm/ unlawful wounding (including Racial or religiously aggravated) S.20 OAPA 1861

Handling Stolen Goods S22 - Theft Act 1968

Harassment (including Racial or religiously aggravated) - Protection from Harassment Act 1997

Human Trafficking Offences – S57-59 Sexual Offences Act 2003, S4 Asylum and Immigration Act 2004, S71 Coroners and Justice Act 2009; S1, 2 and 4 Modern Slavery Act 2015

Identity documents – possess – Part 1 S1-5 Forgery Act 1861, Identity Cards Act 2006, Identity Documents Act 2010

Indecent photographs of children – Protection of Children Act 1978

Keeping a brothel used for prostitution - Sexual Offences Act 1956

Protective Order –Breach of

Public Order Act s.2 violent disorder

Sexual Assault - S3 & S7 Sexual Offences Act 2003

Theft - Theft Act 1968

Threats to Kill – S16 OAPA 1861

Voyeurism - S67 Sexual Offences Act 2003

Witness intimidation - S.51 Criminal Justice and Public Order Act 1994

Cause death by Careless driving - S2B Road Traffic Act 1988

Cause death by driving unlicensed/disqualified - S3ZB Road Traffic Act 1988

Dangerous Driving - S2A Road Traffic Act 1988

Annex B: Guidance for the Selection of Appropriate Conditions

REPARATIVE

REHABILITATIVE

PUNITIVE

FOREIGN OFFENDER CONDITIONS

To make good the loss sustained by the victim or community and to repair relationships: e.g.

- to pay compensation, or to make payment to an appropriate local charitable or community fund

- to personally repair or make good the damage

- to undertake unpaid work not exceeding 20 hours

- to write a letter of apology

- to participate in restorative justice mediation

To stop or modify offending behaviour, or help reintegrate the offender into society: e.g.

- not to commit further offences for a defined period of time

- to attend a referral programme specifically related to the nature of the offending behaviour

To punish where there are no other appropriate conditions or those conditions do not provide an appropriate and proportionate response to offending behaviour, specifically:

- to pay a financial penalty

To effect departure from the UK and ensure non return for a specified period:

- to depart from the UK as soon as reasonably practical and no later than (specified date)

- to comply with any lawful instruction to effect removal from the UK

- to produce and surrender to UKVI a valid national travel or identity document

- to not return to the UK for five years as set out in the immigration Rules and thereafter only in accordance with the Immigration rules

A restrictive condition may be included with any of the above where to do so would assist in the achievement of one of the above objectives provided it is appropriate and proportionate to the offending behaviour and subsists for a reasonable period of time, e.g. not to approach a named victim, or specified property, or geographical location or specified event or a curfew.

Compensation for Personal Injuries

Type of injury

Description

Award

Graze

Depending on size

Up to £75

Bruise

Depending on size

Up to £100

Black eye

 

Up to £125

Minor cut - no permanent scar

Depending on size and whether stitched

£100 to £200

Sprain

Depending on loss of mobility

£100 to £200

Annex C: Copy of MG14 Form

MoG Forms (downloaded as a zip file from the Police College website)

Annex D: Conditional Cautioning - Incorrect or Inappropriate Decisions

This Guidance defines the circumstances in which a decision by a prosecutor to authorise the administration of a Conditional Caution may be reversed by a subsequent review, with the caution being rescinded; and whether any subsequent prosecution in such circumstances would amount to an abuse of process.

Headlines

  • Identifies the principle behind the decision to authorise the police to administer a conditional caution and the need to comply with the requirements of sections 22 and 23 of the Criminal Justice Act 2003; the Directors Guidance on Conditional Cautioning; and the Code of Practice for Conditional Cautions.
  • Identifies the procedure to be undertaken in quashing a Conditional Caution citing Jones v Whalley (2006) UKHL 41 paragraph 13.
  • Identifies and explores the issues around abuse of process.
  • The Guidance clarifies the position in regard Conditional Cautions and provides guidance on applying these principles to Simple Cautions.
  • This Guidance is to be read in conjunction with the Directors Guidance on Conditional cautioning and the Code of Practice for Conditional Cautions.

Introduction

This guidance addresses:

  • the circumstances in which a decision by a prosecutor to authorise the administration of a conditional caution may be reversed by a subsequent review, with the caution being rescinded; and
  • whether any subsequent prosecution in such circumstances would amount to an abuse of process.

Principle

When deciding whether to authorise the police to administer a conditional caution, a prosecutor must comply with the requirements of sections 22 and 23 of the Criminal Justice Act 2003 ("the Act"), the Director's Guidance on Conditional Cautioning and the Code of Practice for Conditional Cautions . The Divisional Court has made it clear in R (on the application of Guest) v DPP 2009 that, as with a simple caution the decision to administer a conditional caution may be judicially reviewed. If shown to be unlawful, either because the proper procedures have not been followed or because it has been given in respect of an offence that is outside the Director's Guidance, or because it is otherwise unreasonable on Wednesbury principles, the decision to authorise and then administer a conditional caution may be quashed and the caution set aside.

Procedure

Where a simple caution or conditional caution is quashed by the Divisional Court, the "slate" is, in effect, "wiped clean" (see Jones v Whalley [2006] UKHL 41 at paragraph 13, per Lord Bingham). No citable caution exists and the case must be reviewed again to determine the appropriate disposal. This may include prosecution if both stages of the Full Code Test are satisfied. The Divisional Court in the case of Guest ruled that, where a conditional caution is quashed, it does not follow that any subsequent prosecution in respect of the same alleged offence would inevitably amount to an abuse of process: whether in any given case a court would stay criminal proceedings before it was a matter for that court to determine.

Therefore, (unless the challenge is clearly ill-founded or vexatious), where the correctness of a decision to administer a conditional caution is called into question, whether in the context of proceedings for judicial review or otherwise, the case should be re-reviewed as soon as possible. If the original decision was taken by the CPS the re-review should be undertaken by the lawyer-manager of the original decision taker.

If the decision to authorise a conditional caution has been taken in error because, for example, the offence is excluded because it is a Hate Crime or domestic violence offence for which a conditional caution may not be offered in accordance with the Director's Guidance or because the decision is clearly unreasonable in all the circumstances, the decision should be set aside.

Notice of the setting aside must be given to the police and to the person who has been given the conditional caution. If possible, any victim directly affected by the decision should also be informed.

Consideration can then be given to whether the alleged offender should be prosecuted. This approach is consistent with paragraph 10.1 of the Code for Crown Prosecutors, which states that, although normally when a suspect or defendant is told that there will not be a prosecution this will be the end of the matter, occasionally there may be special reasons where this may not be so. These reasons include those "cases where a new look at the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision: see paragraph 10.2 (a).

Any decision to set aside a conditional caution and/or to authorise the institution of a prosecution following such a setting aside should be approved by the Chief Crown Prosecutor (or deputy CCP) or relevant Head of Casework Divisions. CCPs will want to ensure that they have systems in place to be advised of any case in which a conditional caution is set aside.

The evidential stage of the Full Code Test should not normally present any difficulty, since it should have been met before the decision was taken to authorise the conditional caution in the first place. It should be noted that, because the conditional caution has been rescinded at the instance of the prosecution, the admission signed by the alleged offender as part of the conditional cautioning process will not be admissible as evidence in any subsequent prosecution (notwithstanding section 24(2) of the Criminal Justice Act 2003).

In considering the public interest stage, the prosecutor who re-reviews the case should take into account:

  • the extent to which the accused person has already complied with the conditions of the caution;
  • the delay involved in commencing proceedings;
  • the views of the victim, if known; and
  • any other relevant factors,

Prosecutors should also consider whether, in all the circumstances, a court would consider it unfair and wrong to allow the prosecution to revoke its previous decision and therefore stay the proceedings as an abuse of process (see further guidance below). Note, however, that in a case in which the evidential and public interest tests are otherwise met, it will be in only the most exceptional case, where the Prosecutor can say with a high degree of certainty that a court will rule that a prosecution is proved to be an abuse of its process, that a decision not to prosecute is likely to be valid (per Sweeny J. in Guest, paragraph 58).

Clearly, where the decision to authorise a conditional caution an offender is unlawful because it goes beyond the limits set by the statutory provisions or the Director's Guidance, there is no alternative but to set it aside. Conditional cautions which are prima facie lawful may also be set aside on review if it appears that no reasonable prosecutor, in possession of all the facts known at the time of the review, could reasonably have come to the decision to caution rather than prosecute.

Greater reserve must be exercised in relation to this second category of case. Although paragraph 10 of the Code for Crown Prosecutors recognises that there may occasionally be cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand, it also states that as a matter of principle people should be able to rely on decisions taken by the CPS. There is also the danger, recognised by the House of Lords in Jones v Whalley, that allowing prosecutions to proceed after the offender has agreed to be cautioned will undermine the whole cautioning regime (a principle which applies with equal force to conditional cautions).

Abuse of Process

The issue in Jones v Whalley was whether it was an abuse of process for a private prosecutor to commence a prosecution against an offender who had accepted a caution from the police having been told (as was accepted, entirely erroneously) that this was a bar to further criminal proceedings. The House decided that it was an abuse of process on the 'narrow ground' that, in this particular case the offender had been told unequivocally by the police that if he accepted the caution he would not have to go before a criminal court. While this statement was probably not actually correct in law, the important consideration was the effect that the representation had had on the person accepting the caution in reliance upon it. Applying R v Croydon JJ, ex parte Dean [1993] QB 769, the House found that it was clearly an abuse to allow a private prosecution in this particular case.

The Law Lords declined to give a definitive answer on the 'broader issue' of whether, irrespective of what may or may not have been said to a person who was cautioned, conditionally cautioned, reprimanded or warned, it could ever be anything other than an abuse of process for a court thereafter to allow a prosecution against him.

Prosecutors should nevertheless be aware of the decision of the Administrative Court in the case of R (on the application of H) v Guildford Youth Court (2008). In this case, the Administrative Court approved the approach of the Youth Court in staying a case involving the alleged unlawful infliction of grievous bodily harm as an abuse of process, where the 15 year old suspect had been told by the police (prior to CPS involvement) that they would be seeking to deal with the matter by the administering of a conditional caution.

This case did not appear to have been contested by the Crown in the Administrative Court and no reference appears to have been made to the earlier authorities on the issue referred to elsewhere in this minute. Accordingly, the approach of the House of Lords in Jones v Whalley and the Divisional Court in Guest should still be followed, and that a decision to prosecute following an earlier decision to divert will not necessarily amount to an abuse of process.

In order to minimise the risk of a renewed prosecution being stayed as an abuse of the process, local arrangements should be put in place to ensure that when a conditional caution is administered, the person being cautioned is informed in writing that the caution may not preclude a subsequent prosecution and that it will not preclude a civil action by an aggrieved party (see Hayter v L [1998] 1 WLR 854; Jones v Whalley, paragraphs 36 and 44).

The potential for prosecution or civil action must be explained to the offender before a simple caution is administered (Paragraph 72 of the Ministry of Justice Simple Cautions for Adult Offenders published on 14 November 2013) and a similar indication is stated on form MG14 in respect of the administration of a conditional caution.

Where re-review discloses that the original decision to authorise a simple or conditional caution was wrong, immediate action should be taken to rescind the decision. Where re-review leads to the decision being rescinded and the simple or conditional caution being set aside in favour of prosecution, this fact should be specifically stated in the CPS response to any originating summons for judicial review. The single judge at the Divisional Court is likely to take into account the steps that have been taken to undo the effect of the erroneous decision when deciding whether permission should be granted for the judicial review to be heard.

Simple Cautions

Although this guidance is directed mainly at conditional cautioning, the same principles and procedures should be applied in cases where a prosecutor has advised the police to issue a simple caution. The giving of such advice can occur where the police wish to give a simple caution to a person who is alleged to have committed an indictable only offence or in any other case which is referred to the CPS for a charging decision but where the prosecutor believes the offender should be diverted from prosecution by way of a simple caution instead.

Except in these circumstances however, the decision to issue a simple caution can normally be taken by the police without reference to the CPS (see the Director's Guidance on Charging and also the Director's Guidance on Conditional Cautions). Where such a decision is taken in error, the responsibility for correcting the error rests with the police, not the CPS. Any subsequent prosecution will be subject to the same considerations regarding a possible abuse of process as set out above.

Judicial Review

Chief Crown Prosecutors are reminded that all cases for judicial review must be notified to the Appeals Unit in Special Crime and Counter Terrorism Division (SCCTD). The Appeals Unit can be contacted by email scd.appeals@cps.gov.uk or by telephone - 020 3357 0079.