FORCE PROCEDURES
Procedure Reference Number: 2008.37
Procedure Author: David Briscoe, Department of Criminal Justice & Custody
Procedure Review Date: March 2018
At the time of ratifying this procedure, the author is satisfied that this document complied with relevant legislation and Force requirements.
Sign and date
D.A. Briscoe 7/7/16.
……………………………………
(Author(s))
Procedure Index
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1. Procedure Aim 3
2. Responsibilities 4
3. Decision making and process to follow 5
Instructions 5
Victims 7
Forensic Procedures 8
Criteria for Simple Caution 8
Appropriate Use of a Simple Caution 9
Other Considerations 12
Does the Suspect have any other Cautions for Similar Offences? 12
Ethnicity 12
Simple Cautioning Procedure and Legal Advise 13
Consequences of Cautioning 15
Recording the Caution 15
When to Refer Decisions to the CPS 16
Conditional Cautions 16
4. Appeals 17
5. Review 18
6. Appendices
Appendix A - Adult Offender Caution Record – Form 200091 18
Appendix B - Gravity Factor Scoring 18
Most recent amendments (April 2015) in red:
1. Procedure Aim
1.1 Cheshire Constabulary is committed to responding efficiently and effectively to all reports of crime and to the provision of a fair and equal service to all. In support of this we will maintain a system for the administration of Simple Cautions to adults in appropriate cases.
1.2 This document aims to introduce clear directives and guidance to ensure that simple cautions are administered efficiently and effectively in order to:
· Deal quickly and simply with less serious offences;
· Divert unnecessary appearances in the criminal courts;
· Reduce the chances of re-offending;
· Make a positive contribution towards the effectiveness of the criminal justice system, by freeing up resources and thereby reduce the fear of crime and disorder; and
· Optimise the number of offences brought to justice.
1.3 The cautioning procedure is important and must not be treated lightly, otherwise the whole process could be brought into disrepute.
2. Responsibilities
2.1 That the guidance and procedures relating to the roles and responsibilities of police officers and police staff contained within Section 2 of this document, are Constabulary Policy.
2.2 If there is a victim to the offence then a statement (MG11) is required from them. If the victim declines to make a statement then a signed Pocket Note Book entry must be obtained with as much evidence disclosed as possible. See 3.2.2
2.3 The cautioning officer should be a Sergeant or above for most summary or either-way offences. This process will be recorded in the Sergeant’s Pocket Note Book, unless this is recorded on the Niche custody record.
2.4 If a first time offender is cautioned it will be normal for them to be charged with subsequent offences. Subsequent simple cautions may be considered in the following circumstances: Criminal Justice and Courts Act 2015 Sect 17(4)
· Repeat offending - If a first time offender is cautioned, it will be normal for them to be charged with subsequent offences. An offender must not be cautioned if in the two years before the offence was committed the offender has been convicted of, or cautioned for, a similar offence, unless a police officer of at least Inspector rank determines that there are ‘exceptional circumstances’ relating to the offender, the present offence or the previous offence. The caution must be authorised and signed off by an Inspector recording those exceptional circumstances before the caution is administered to the offender. Only when authorised by the Inspector may the caution be delivered by an officer of Sergeant or above rank. See also 3.1.15 and 3.1.16
· Specified Either-Way offences – These are seen at 3.5.2 below. They must be authorised by Inspector / Detective Inspector (sex crimes) and he/she must record the ‘exceptional circumstances’ that justify a Simple Caution.
2.5 Members of vulnerable groups will be treated in accordance with Code of Practice C of the Police and Criminal Evidence Act 1984.
2.6 There must be a clear distinction between the investigation of the offence, the care and treatment of persons in custody and the quasi-judicial function of a caution. Therefore, a caution must not be given by an Officer involved in the investigation of the offence.
2.7 The cautioning officer will be responsible for the completing of form 200091 (Adult Offender Caution Record, see Appendix A) and it will be signed by both the offender and the officer.
2.8 The victim must always be kept informed of the final outcome of the case.
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V2.3 – Simple Cautions (Pub) NOT PROTECTIVELY MARKED
3. Decision making and process to follow
3.1 Instructions
3.1.1 This procedure is applicable to persons who have attained the age of eighteen years. Persons who are aged between ten and seventeen inclusive are subject to the Youth Cautions or Youth Conditional Cautions procedure.
3.1.2 Diverting less serious offences away from the criminal justice system, allows for the individual to take into consideration their actions and responsibilities and can help to reduce the chances of re-offending.
3.1.3 The concept of the caution is to formally warn and advise the person regarding their present and future conduct. Simple Cautions are a non-statutory disposal and the opportunity exists for police to exercise discretion in deciding to use them. Therefore, it is not possible to set out definitive rules on the circumstances in which Simple Cautions are appropriate (for example, that first time offenders should always be cautioned or particular offences should always result in a Simple Caution only). The questions to consider in each case are :
· Whether a Simple Caution is appropriate to the offence and the offender;
· Whether a Simple Caution is likely to be effective in the circumstances.
3.1.4 In considering the administration of a Simple Caution, officers must observe the General Duties of the Race Relations (Amendment) Act 2000, the Sex Discrimination Act 1975 as amended by the Equality Act 2006 and the Disability Discrimination Act 1995 amended by the Disability Discrimination Act 2005.
· Eliminate unlawful discrimination
· Eliminate unlawful harassment
· Promote equality of opportunity
3.1.5 A caution is a formal recordable and citable disposal that can be used in the event of any future offending. A Simple Caution (known previously as a Formal Caution, now re-named to distinguish it from a Conditional Caution) is a non-statutory disposal for adult offenders. It may be used for cases involving first time, low level offences where the public interest can be met by a Simple Caution. It is highly unlikely that a Simple Caution would ever be deemed appropriate for an indictable only offence. See 3.4.4 and 3.10
3.1.6 The administration of a Simple Caution for a notifiable offence is treated as a sanction detection and an offence brought to justice. The accurate recording of cautions contributes to improved public confidence in the criminal justice system and also contributes towards reducing the likelihood of re-offending.
3.1.7 Cautions must be made in accordance with the Director of Public Prosecution’s guidance on charging (The Director’s Guidance). Early advice from the Crown Prosecution Service (CPS) can also be sought, at any point in an investigation, on whether a Simple Caution is appropriate.
3.1.8 A Simple Caution may only be administered if there is enough evidence of the required standard, i.e. such that a jury or magistrates directed by the law would be more likely than not to convict the alleged offender. Therefore, the police must apply the Full Code Test.
3.1.9 Similarly, if a person is in custody for a relatively low level offence and the person has previously been convicted of unrelated offences, then a Simple Caution may be considered as a suitable disposal, providing the criteria for a Simple Caution has been met and there is no recent offending / conviction history. This is a police operational decision. The considerations are:
· whether a Simple Caution is appropriate to the offence and the offender
· whether a Simple Caution is likely to be effective in the circumstances
· the seriousness of the offence (gravity score low – no aggravating factors)
· the views of the victim
3.1.10 In order to safeguard the defendant’s interests, the following conditions must be met before a Simple Caution can be administered:
· There must be evidence of the offender’s guilt, sufficient to give a realistic prospect of conviction. (Apply Full Code Test)
· There must be clear and reliable evidence of a voluntary admission that relates to all elements of the alleged offence(s): the offender must admit the offence.
· The offender must understand the significance of a caution and give informed consent to being cautioned.
3.1.11 Simple cautions do form part of an offender’s criminal record and may be used in future proceedings and in certain circumstances, may be made available to an employer as part of a criminal record check. Offenders must be made aware of this before agreeing to accept a simple caution.
3.1.12 There is no right of appeal against the administration of a simple caution once it has been accepted by the offender and administered by the police. However, it may be challenged by way of a formal complaint to the police force that administered it and by a judicial review.
3.1.13 Legislation which came into effect in December 2008, brought simple cautions within the ambit of the Rehabilitation of Offenders Act 1974 (ROA). Therefore, simple cautions become spent immediately they are administered.
3.1.14 This means that an individual does not need to disclose a simple caution when asked unless they are seeking work in an occupation that is listed in the Exceptions Order to the ROA such as working with children and vulnerable adults or for other excepted purposes such as seeking to obtain certain licences. Cautions will also be disclosed under Disclosure and Barring Service (DBS) standard and enhanced checks. Further information can be obtained from the DBS.
3.1.15 If a first time offender is cautioned it will be normal for them to be charged with subsequent offences. Subsequent simple cautions may be considered in the following circumstances: see also 2.4
· A person may only receive a second caution for a ‘similar offence’ within two years, only in ‘exceptional circumstances’ and if authorised by an Inspector.
3.1.16 In assessing whether ‘exceptional circumstances’ exist in a case, the following non exhaustive list of factors must be taken into account: (Inspector or above to authorise the caution) Criminal Justice and Courts Act 2015 Sect 17(6)
· The extent of culpability and/or harm caused;
· The degree of intention or the forseeability of any resultant harm;
· The offender’s antecedents;
· 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 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.
3.1.17 Any lines of defence that are available to the accused should be taken into consideration as well as an assessment of the evidence which should consider its reliability and admissibility.
3.2 Victims
3.2.1 In December 2005, the Victims Code of Practice came into force which brings a statutory requirement for victims to be kept well informed; and that vulnerable and intimidated witnesses should be identified at the time of the offence, as they are eligible for an enhanced service. (For further details, refer directly to the Code, available on the Force Intranet).
3.2.2 If there is a victim to the offence then a statement (MG11) is required from them. If the victim declines to make a statement, then a signed Pocket Note Book entry must be obtained with as much evidence disclosed as possible. See 2.2
3.2.3 Officers must ensure that all offences committed are endorsed on the Adult Offender Caution Record (Form 200091) (see Appendix A); for example: if two offences of theft are admitted, both should be recorded. This will ensure that cautions accurately reflect the full extent of offences. LATEST VERSION AUG 2016
3.2.4 Before a Simple Caution can be administered the victim should normally be contacted to establish :
· Their view about the offence;
· The nature and extent of any harm or loss, and their significance relative to the victim’s circumstances;
· Whether the offender has made any form of reparation or paid compensation.
3.2.5 If a Simple Caution is being, or is likely to be considered, its significance should be explained to the victim. In some cases where cautioning might otherwise be appropriate, prosecution may be required in order to protect the victim from further attention from the offender. The fact that a victim declines to support a prosecution (National Crime Recording Standards Rule D4) should not preclude the consideration of a Simple Caution.
3.2.6 Where there is a decision not to proceed with a prosecution but the case is still suitable for a Simple Caution, the victim may be asked if they will affirm their support for a Simple Caution as a suitable method of disposal. In these cases, the victim could be asked to give a statement confirming the facts of the offence and stating in their own words that they are not prepared to support a prosecution through the Courts, but would be satisfied if the matter was dealt with by way of a Simple Caution.
3.2.7 It is important that the officer dealing with the victim presents the option of a Simple Caution disposal clearly in these cases, and gives due regard to the interests of justice and the due processes involved.
3.2.8 In all circumstances where the views of victims are sought, care should 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 police and/or the CPS.