Guidance on the power of arrest and detention of offenders for failing to comply with conditional cautions

The Office for Criminal Justice Reform has issued guidance in relation to the new powers of arrest and detention of offenders in relation to conditional cautions, which powers came into effect on June 29, 2007.

This guidance has been issued in advance of the new Code of Practice on Conditional Cautioning, which is in the process of being revised following a public consultation period which ended in May 2007. It was expected to be published, subject to Parliamentary approval, in summer 2007; however, due to the changes brought about by the creation of the Ministry of Justice and ministerial personnel changes, the opportunity to put the revised code before Parliament has been lost. It is now expected that the revised code will not be brought into effect until early 2008.

Section 18 of the Police and Justice Act 2006 inserted Sections 24A and 24B into the Criminal Justice Act 2003 (CJA 2003).

The effect of Section 24A of the CJA 2003 is to allow a constable to arrest any person whom he has reasonable grounds for believing has failed, without reasonable excuse, to comply with any conditions of a conditional caution. The section also provides a power to keep the person in police detention if it is necessary to do so, for the purpose of investigating whether he has failed, without reasonable excuse, to comply with any conditions attached to the conditional caution.

Section 24B specifies which provisions (and any modifications to those provisions) of the Police and Criminal Evidence Act 1984 apply in the case of a person arrested under Section 24A of the CJA 2003.

The guidance states that this power of arrest should only be exercised where considered necessary. It suggests that, whilst the necessity criteria in subsections 24(4) and (5) of PACE do not apply to arrests under Section 24A of the CJA 2003 for failure to comply with a conditional caution, these may provide a useful indication regarding where arrest could be considered necessary.

The guidance also states that offenders should only be detained for as long as is necessary to explore the reasons for any breach and/or to undertake any charging procedures. This should be done as soon as practicable after arrest or arrival at the police station. In situations where it is clear that this cannot be achieved in a short period of time, the offender should be released on bail under subsection 24A(2)(b) of the CJA, whilst the authorised person enquires into the non-compliance and the prosecutor decides whether the original offence should be charged.

Once the enquiry into the non-compliance has been concluded, the case will be referred to a prosecutor for decision. Where it appears likely that referral may not be concluded within a short period of time, the offender will be released on an appropriately short period of bail.

This guidance is identical to that contained in paragraph 14 of the draft code details of which can be found via http://www.cjsonline.gov.uk/ the_cjs/whats_new/news-3509.html or at http://www.cjsonline.gov.uk/ downloads/application/pdf/2nd%20Code%20of%20Practice%20on%20conditional%20cautions.pdf