A Caution is for life not just for Christmas

Photo of Iain Gould, a solicitor who specialises in actions against the police
Iain Gould, specialist actions against the police solicitor

By Iain Gould, Solicitor

On a regular basis, certain crimes are resolved at the Police Station shortly after arrest by way of a simple (a.k.a police) caution.  Many observers view such a disposal as a slap on the wrist without serious consequences. They are wrong. Let me explain why accepting a police caution could be one of the most serious mistakes you ever make.

 What is a police caution?

A police caution is a formal warning given to adults for minor offences. It is an alternative to prosecution in minor cases and is usually issued by the police, but can also be handled by other enforcement agencies, such as Local Authorities. Cautions cannot be issued in indictable-only (serious) offences, but otherwise the police retain a broad discretion to issue them.

 The consequences of accepting a police caution

 Although a caution is not a criminal conviction, if it is imposed for a recordable offence:

  •  it will be entered on the Police National Computer and any subsequent court proceedings,
  • it may be used as evidence of previous misconduct where this is permitted,
  • it may prevent a further caution being offered in the future,
  • fingerprints and other identification data can be taken and retained,
  • in the case of a relevant sexual offence, the offender is placed on the Sex Offenders’ Register for two years,
  • if the person cautioned is in a notifiable occupation the police should disclose the caution to the employer. This may have especially serious consequences for people who work with children or vulnerable adults.

 How the police issue cautions

 In 2008, the Home Office issued Circular 016/2008 about ‘Simple cautioning of Adult Offenders’ to provide guidance on the use of the simple caution. It states that a simple caution ‘may be used for disposing of (low-level) offences when specified public interest and eligibility criteria are met’.

 Relevant extracts of the circular are as follows:

 The aims of the simple caution are to:

 (a)          deal quickly and simply with less serious offences where the offender has admitted the offence

 (b)          divert offenders where appropriate from appearing in the criminal courts

 (c)          record an individual’s criminal conduct for possible reference in future criminal proceedings or relevant security checks; and

 (d)          reduce the likelihood of re-offending.

 When deciding when a Simple Caution is appropriate, a police officer must answer the following questions: 

  • has the suspect made a clear and  reliable admission for the offence either verbally or in writing?…
  • Is there a realistic prospect of conviction if the offender were to be prosecuted in line with the Code for Crown Prosecutors,  
  • Is it in the public interest to use a Simple Caution as a means of disposal?  Officers should take into account the public interest factors set out in the Code for Crown Prosecutors, in particular the seriousness of the offence… 
  • Is the suspect 18 years or older? 
  • Is a Simple Caution appropriate to the offence and the offender?  (with reference to ACPO’s gravity Factors matrix and the suspect’s criminal history). 

Other Considerations

  • Has the offender been made aware of the significance of a Simple Caution? 
  • Under no circumstances should suspects be pressed or induced in any way to admit offences in order to receive a Simple Caution as an alternative to being charged. 
  • Has the suspect given an informed consent to being cautioned. 

“Informed consent” can be given when the suspect has received in writing an explanation of the implications of accepting a Simple Caution before he/she agrees to accept a Simple Caution.  After receiving this, if the suspect does not give his/her consent, the police may choose to continue with the prosecution in accordance with the Directors Guidance on Charging.  Officers must avoid any suggestion that accepting a Simple Caution is an “easy option”. 

Making the decision

When considering the suitability of an offence for disposal by Simple Caution, the decision should be referred to an officer of at least Sergeant rank. 

Consequences of receiving a Simple Caution 

The significance of the admission of guilt in agreeing to accept a Simple Caution must be fully and clearly explained to the offender before they are cautioned. 

Other legal guidance about police cautions

  1. The Code for Crown Prosecutors 

The Full Code test for deciding the appropriate disposal of a case has two stages:

  1. the evidential stage, i.e. whether there is a realistic prospect of conviction, and
  2. whether in all the circumstances, it is in the public’s interest for there to be a prosecution. 
  1. The ACPO Gravity Matrix 

The Guidance requires an officer to apply the “ACPO Gravity Factors Matrix” when assessing the gravity of an offence.

All offences are given a gravity score (‘1’ for the most minor offences and ‘4’ for the most serious). Other factors, either aggravating or mitigating may raise or lower the score for a particular offence, by 1 point only.

So, for a total score of 1, the guidance states there should always be the minimum response applicable to the individual offender, i.e. No Further Action, Simple Caution or Penalty Notice for Disorder.

For a score of 4, the guidance states to always charge.

How the courts interpret the law on police cautions

It is apparent that police officers responsible for applying the Home Office Circular enjoy a wide margin of appreciation as to the nature of the case and whether the pre-conditions for a caution are satisfied.

As Lord Justice Schiemann put it in R v Metropolitan Police Commissioner ex parte Thompson [1997] I 1 WLR 1519 

“it will be a rare case where a person who has been cautioned will succeed in showing that the decision was fatally flawed…”.

Cases where a police caution has been removed after the event: 

  1. How CCTV saved Mrs O’Reilly 

In a case that I was involved in against West Yorkshire Police, I obtained CCTV footage of the Custody Suite that provided “clear evidence that a caution was not explained in full or correctly” to my client Mrs. O’Reilly, in breach of the Circular’s guidance.

The facts

Mrs O’Reilly was arrested for obstructing an officer in the execution of his duty.  She was taken to Dewsbury Police Station where she was kept in overnight.

The following morning, she was advised that she was to be offered a police caution. She was given no explanation as to what it meant to have a caution, nor given a choice in the matter.  She was told that she would not have to disclose it and was told to sign a piece of paper stating that she agreed to be cautioned.

West Yorkshire Police’s position

Mrs. O’Reilly’s initial complaint to the police was ignored. She sought me out as I am a solicitor who specialises in actions against the police.

But for the incontrovertible CCTV evidence, I have no doubt that West Yorkshire Police would have rejected her complaint and my client would still have a caution against her (otherwise) unblemished name.

Result: removal of the police caution

As a consequence of Mrs. O’Reilly’s reliance on CCTV evidence to support her insistence that she had been mistreated, West Yorkshire Police agreed to expunge the caution from their system/the Police National Computer.

2. Judicial review of the Metropolitan Police 

In another recent case brought against the Metropolitan Police, a decision to caution and its subsequent confirmation was challenged in Judicial Review proceedings.

The Court found that the suspect had made a clear and reliable admission, but on review considered:

  • the circumstances of the offence and offender, 
  • the investigating officer’s thought process when deciding how to resolve the case (i.e. to take no further action, to offer a caution, or to prosecute), and 
  • determined that he should have concluded that a prosecution was inconceivable, and that the public interest did not warrant a caution. 

Accordingly, the Court decided to intervene and the caution was expunged.

A cautionary tale

Given the clear Home Office guidance and judicial support described above, successful challenges to the imposition of police cautions are rare.

Careful consideration has to be given by the Police as to whether to offer a caution, the suspect as to whether to accept, and a Criminal Defence Lawyer, if engaged, to advise whether to accept or reject.

The fact remains that challenging a caution after the event will be exceptional and accordingly, for the vast majority who accept a caution at the Police Station this will be on their record for ever-more.

If you (or your clients) have been wrongly issued with a police caution, contact me for confidential advice and assistance using the online form below, via my firm’s website, or call me on 0151 933 5525.

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Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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