2The Simple Caution

Cautions

Fire Protection Policy
Cautions
West Yorkshire Fire & Rescue Service
Oakroyd Hall
Birkenshaw
Bradford
BD11 2DY
Date Issued: / 08/06/2012 / Review Date: / 09/06/2014 /
Ref: / FS-POL021 / Version: 3.0 /

Page 1 of 12

Cautions

1Introduction

1.1 This policy follows the principles set out in Home Office Circular 016/2008 Cautioning of Adult Offenders[1] (‘the Circular’) produced by the Office for Criminal Justice Reform[2], which replaced Home Office Circular 30/2005 on the Cautioning of Adult offenders.

1.2The Authority may opt to use ‘Simple’ Cautions for certain offences contrary to the Regulatory Reform (Fire Safety) Order 2005, the Dangerous Substances & Explosive Atmospheres Regulations 2002, the Petroleum (Consolidation) Act 1928 and the Manufacture & Storage of Explosives Regulations 2005.

2The Simple Caution

2.1A Simple Caution (known as a Formal Caution in some previous Home Office Circulars, now renamed to distinguish it from a Conditional Caution and hereinafter called ‘a Caution’) is a non-statutory disposal for adult offenders. Cautions are also appropriate for dealing with corporate bodies. It may be used for cases involving first time, low level offences where the public interest criteria can be met by a Caution.

2.2This policy and procedure has been produced having regard to the Regulators’ Compliance Code[3] made under section 22 of the Legislative and Regulatory Reform Act 2006[4], the Enforcement Concordat[5], and the Code for Crown Prosecutors.[6] It should be noted that there is a range of alternative out-of-court disposals which will be considered as part of this process.

2.3Since Cautions are a non-statutory disposal for adult offenders, the opportunity exists for the Authority to exercise discretion when deciding to use them. Therefore, it is not possible to set out in this policy document any definitive rules on the circumstances in which Cautions are appropriate (for example, that first time offenders should always be Cautioned or particular offences should always result in a Caution only). The questions to be considered in each case are: -

-whether a Caution is appropriate to the offence and the offender; and

-whether a Caution is likely to be effective in the circumstances.

3Aims Of The Caution

3.1In the Home Office Circular the aims of a Caution are stated as:

-to deal quickly and simply with offences;

-to divert offenders where appropriate from appearing in the criminal courts;

-record an individual’s criminal conduct for possible reference in future criminal proceedings or relevant security checks[7]; and

-to reduce the likelihood of re-offending;

4Cautioning Process

Criteria for a Caution

4.1In considering whether a Caution is appropriate, DFS&CR will take account of the following facts: -

1. Has the suspect made a clear and reliable admission of the offence (either verbally or in writing)? A Caution will not be appropriate where a person has not made a clear and reliable admission of the offence (for example where intent is denied or there are doubts about the person’s mental health or intellectual capacity or where it is likely that the person could avail themselves of the provisions of a statutory defence). An admission may be considered a full and frank admission if all evidence is accepted by the offender.

1. Is there a realistic prospect of conviction if the offender were to be prosecuted in line with the Authority’s enforcement policy.

1. Is it in the public interest to use a Caution as the appropriate means of disposal? Inspectors must take into account the public interest principles set out in the Code for Crown Prosecutors. (see also paragraph 4.16)

4.2If all the above requirements are met, DFS&CR will consider whether the offence makes it appropriate for disposal by a Caution.

Notes:

-Where a suspect is under 18, a Caution should not be given. Instead a Reprimand or Warning would be the equivalent disposal, as per the Crime and Disorder Act.

-Guidance for police officers may be found in Final Warning Scheme: Guidance for Police and Youth Offending Teams and a gravity factors matrix.

Aggravating or Mitigating Factors:

4.3DFS&CR when considering the disposal of a matter by way of a Caution should, as part of the decision making process, have regard to any aggravating or mitigating factors involved in the commission of the offence. DFS&CR will determine which factors may be most appropriate in the local circumstances.

Recording the admission:

4.4A Caution can only be administered where there is a record of an admission of the offence. This is required before a person can be invited to accept a caution. An admission must not be sought as part of the cautioning process. The method for obtaining and recording the admission must be Police and Criminal Evidence Act 1984 (PACE) compliant.

4.5The details of the admission could be recorded in a number of ways including:

-a tape recorded interview;

-a record of the admission in the fire safety inspector's notebook and signed by the suspect as an accurate record; or

-other forms of written admission of the offence being committed. For example if a voluntary statement is made, a written record must be made and the suspect invited to sign the record to confirm its accuracy in accordance with PACE Code C 11.13 and 11.14 and Note 11E; i.e. unsolicited comments which are outside the context of an interview but which might be relevant to the offence.

Note: If a formal interview takes place after an unsolicited admission, the admission must be put to the suspect at the start of the interview and the suspect asked to confirm or deny what they said.

The Victim:

4.6It is accepted in that in the majority of regulatory offences there will not be a victim. However, before a Caution can be given, it is important to try to establish, where relevant:-

-the views of any victim about the offence[8];

-the nature and extent of any harm or loss, and its significance, relative to the victim's circumstances;

-whether the offender has made any form of reparation or paid compensation. Inspectors should not become involved in negotiating or awarding reparation or compensation.

4.7Where a Caution is being considered the reasons for this will be explained to the victim and the consequences of the Caution outlined. The fact that a victim declines to support a prosecution will not preclude the consideration of a Caution.

4.8In all circumstances where the views of victims are sought, care will be taken to ensure they are aware that although their views will be taken into account, they will not necessarily be conclusive to the outcome, as the final decision is at the discretion of the Authority.

4.9The victim will always be kept informed of the final outcome of the case.

Other Considerations:

Does the suspect have any other Cautions for similar offences?

4.11Any accessible national and locally held records will be checked before a Caution is given, to ensure that the suspect's criminal record is known and up-to-date and to avoid inappropriate use of a Caution. In particular, the Primary Authority, Home Authority or Lead Authority will be contacted for this purpose. If the suspect has previously received a Caution, then a further Caution will not normally be considered. However, discretion will be used to take into account the nature of the offence, the size of the business and the period of time that has lapsed since a previous Caution was administered. A Caution may still be administered if the subsequent offence is trivial or unrelated.

4.12If the suspect has previously received a Reprimand or Warning, a period of two years will be allowed to elapse before it will be appropriate to administer a Caution.

Has the suspect been made aware of the significance of a Caution?

4.13If a Caution is being considered, then the full implications will be explained (and provided in writing) to a suspect (see paragraph 6.6, 7.1 & 8.1). Under no circumstances will a suspect be pressed, or induced in any way to admit offences in order to receive a Caution as an alternative to being prosecuted (see Appendix 2 for the two standard forms).

4.14A Caution will not be viewed as an appropriate method of disposing of offences by serving prisoners.

Making the Decision:

4.15The final decision for the offence to be disposed of by a caution will be made by the Director of Fire Safety & Community Relations (DFS&CR) in consultation with the Authority’s solicitor. The decision making process will take into account the recommendations made by the inspector leading the investigation.

4.16Reference to the Decision Matrix using the Circumstances and Severity levels detailed in Appendix 1 of the CFOA Circular 2012_009 Simple Cautions Guidance will assist inspectors during the investigation in deciding to recommend to issue a Caution.

Similarly the Strategic Factors guidance contained in Appendix B and Table 2 of the above CFOA guidance must be used to finally qualify that a Caution is the most appropriate method of dealing with the offence.

4.17Once the appropriate inspector is satisfied that the requirements for administering a Caution have been met, (DFS&CR) will give further consideration as to whether a Caution is appropriate to the offence.

4.18The Authority will not opt to take no further action in circumstances in which the requirements of a Caution are met.

4.19When DFS&CR has reached a decision in favour of issuing a Caution, he/she will record his/her decision to confirm this course of action to be the appropriate method of disposal.

5Administering a Caution

5.1The Caution may only be administered by officers holding the following positions within the Fire Safety Group: -

-Director of Fire Safety & Community Relations;

-Senior Fire Safety Manager; and

-Senior Petroleum/Explosives Inspector.

5.2The Home Office circular requires that a caution should be explained in writing to defendants and administered by trained officers. It also states that they should be administered at police stations or in exceptional circumstances in the defendant's home. This guidance is aimed at police officers and is clearly written to cover circumstances where suspects will have been interviewed in the police station. It does not take account of the fact that many defendants are likely to be based outside the fire and rescue authority’s administrative area and that it will not be practicable to expect either party to travel to an office to conduct the cautioning in person. In such circumstances, and particularly bearing in mind that the Circular requires that the defendant is given not only a written explanation of the implications of accepting the caution but also should not be pressured into making an immediate decision and should be given the opportunity to take legal advice, there are many cases where the most appropriate method of administering a caution will be by post.

5.3In administering a Caution: -

-The suspect will not be pressed to make an instant decision on whether to accept the Caution. They will be allowed to consider the matter, and if need be, take independent legal advice.

-Once the Caution has been administered the offender should sign a form accepting the terms of the Caution and should be provided with a copy of the Caution. The pro-forma includes the offender's personal details including occupation and outlines the details of the offence. It also includes information on the consequences of accepting a Caution, as below. The form contains a statement that the offender accepts that the offender's details can be passed to the victim, should they wish to pursue civil proceedings. The offender must sign to say that the terms of the Caution are agreed, and the person administering the Caution must also sign (see Appendix 2 for examples of a pro-forma for an individual and a company). Translations will be available on request.

-If a Caution is administered by post, care will be taken to ensure that the person accepting the Caution is the individual that has committed the offence and is not another person. If a company or the members of a partnership are receiving the Caution, the person(s) accepting the Caution must have the authority to do so (eg a Director, Company Secretary etc).

6Consequences of Receiving a Caution

6.1A Caution is not a form of sentence (which only a court can impose), nor is it a criminal conviction. It is, however an admission of guilt.

6.2As a Simple Caution is not criminal conviction any person who has accepted a caution can answer ‘No’ if they are asked if they have any unspent criminal convictions.

However, should any person be specifically asked if he/she has accepted a simple caution, they should disclose it until it is deleted from the WYFRS records.

Records of cautions will be deleted after five years if there are no other convictions on the record for that person in respect of any offences in the West Yorkshire contrary to any of the legislation which is enforced by the WYFRS.

6.3A Caution will appear on a subject access request made by the offender under the Data Protection Act 1998. It may also be disclosed for employment vetting purposes, licensing purposes or to inform judicial appointments.

6.4All Cautions may also be cited in court in any subsequent prosecutions.

6.5Where it has been decided to deal with the matter by way of a Caution, and the suspect has declined to accept this as a means of disposal, then the suspect will be advised that the Authority has the discretion to proceed with the matter by way of legal proceedings.

6.6Notifiable occupations are currently set out in Home Office Circular 6/2006. Where a Caution is issued to someone employed in a notifiable occupation, this will be disclosed by the Authority to their employer in accordance with the guidelines set out in the Home Office Circular 6/2006: The Notifiable Occupation Scheme – Revised Guidance for Police Forces (1 April 2006).

7Victim Personal Statement Scheme

7.1The Victim Personal Statement scheme was introduced in October 2001. It is now incorporated as Section III.28 of the Consolidated Practice Direction. All victims of crime will be offered an opportunity by the Authority to make a Victim Personal Statement, in which they say how a crime has affected them. If the victim has chosen to make such a statement, this can be used to capture additional information to inform the decision whether to issue a Caution.

8List 99

8.1The Department for Children, Schools and Families maintains a list of individuals who are unsuitable to work with children, and are therefore barred from doing so. Rules which came into force on 28 February 2007[9] make provision for any adult who is convicted of, or cautioned for, an offence which is specified in the regulations, to be included on List 99. By accepting such a Caution an individual will be disqualified from working with children in a regulated position as defined by the Criminal Justice and Court Services Act 2000), and will commit an offence if they undertake or seek to undertake such work.

9Independent Safeguarding Authority

9.1A Caution may also be taken into account by the Independent Safeguarding Authority in reaching decisions about the suitability of persons to work with children or vulnerable adults under the Safeguarding Vulnerable Groups Act 2008.

10The Rehabilitation of Offenders Act 1974

10.1Provisions in the Criminal Justice and Immigration Act 2008 amend the Rehabilitation of Offenders Act 1974 to cover Cautions and other out-of-court disposals. With the exception of Cautions administered for those offences listed in an exceptions order, all Cautions will be immediately spent.

11Civil Proceedings

11.1If a Caution has been given and the victim requests the offender’s name and address in order to institute civil proceedings (for example, to claim compensation or seek an injunction) the information wil be disclosed. Under the Data Protection Act 1998, personal data are exempt from the non-disclosure provisions where the disclosure is required for the purpose of, or in connection with, any legal proceedings or future legal proceedings. This includes circumstances where the data are required in order to obtain legal advice.

12Prosecutions (including private prosecution)

12.1A person can only be prosecuted for an offence they have already been cautioned for if there is a substantial charge in the material circumstances, or new evidence comes to light which suggests that the original offence is more serious than previously thought. If a person has been expressly promised that he will not be prosecuted for an offence if he accepts a Caution, then any subsequent prosecution, including a private prosecution, will be held to be an abuse of process.[10]

13Travel abroad and immigration

13.1Countries requiring foreign nationals to obtain entry visas may require applicants to declare Cautions on their application forms or at interview. Their immigration rules may mean that a person who has received a Caution is refused entry as though he/she has a criminal conviction. This will vary from country to country and may apply to people who want to emigrate permanently or those who simply want to visit for short term purposes, such as on business, for a holiday or to study.

14Recording the Caution

14.1The accurate recording of all Cautions is essential in order to avoid multiple Cautioning and to ensure consistency. Cautions will be recorded by the Authority and, where appropriate, recorded on any national information databases (e.g. the Office of Fair Trading Central Record of Convictions).

Note: A letter that has been sent by the National Policing Improvement Agency (NPIA) to all police forces (see Appendix 3). “This letter restates the national policy on recording of non-courts disposals (e.g. cautions etc) by non-police prosecution agencies. The police service has no manner of validating the effectiveness and compliance with procedures and protocols in such cases, therefore it is considered to be inappropriate to record third party data when it is unable to support it evidentially. Accordingly, at the present time, the police service will not record on PNC details of cautions etc delivered by non-police prosecution agencies.”

15Group and Multiple Offences

15.1The experience and circumstances of offences involved in group offences can vary greatly, as can their degree of involvement. Consistency is an important consideration in the decision of how to deal with each case but each offender will be considered separately and different disposals may be justified. Where multiple related offences are considered, the decision to issue a Caution or prosecute will be based on the most serious of those offences.

16Mixed Disposals

16.1It is possible to use mixed disposals where an offender has committed multiple but unrelated offences as part of the same incident. Depending on the nature of the offence other disposal options may be more appropriate.

17Costs:

17.1There are no legislative provisions that enable the Authority to seek just and reasonable costs where a matter has been dealt with by way of Caution. Any decision to Caution will be completely independent of any acceptance or offer to pay the investigation costs.