Code of Practice for conditional cautioning

Sections 22 to 27 of the Criminal Justice Act 2003 have introduced ‘conditional cautioning’ for suitable offenders. PNLD Legal Editor Dick Harlow looks at the Code of Practice that has been launched for the procedure.

The key to determining whether a conditional caution should be given (instead of prosecution or a simple caution) is that the imposition of specified conditions will be an appropriate and effective means of addressing an offender’s behaviour, or making reparation for the effects of the offence on the victim or the community. The Act defines a conditional caution as ‘a caution which is given in respect of an offence committed by the offender and which has conditions attached to it’. If an offender fails, without reasonable excuse, to comply with the conditions attached to a conditional caution, the Act provides for criminal proceedings to be instituted and the caution cancelled.

Such a caution may only be given by an authorised person – a constable, or a person designated as an investigating officer or a person authorised for the purpose by a prosecutor. The code does apply to other prosecuting bodies as well as the Police and CPS.

The basic criteria for a conditional caution is that:

• the offender is 18 or over

• the offender admits the offence to the authorised person

• there is, in the opinion of the relevant prosecutor, evidence sufficient to charge the offender with the offence.

Where there is the option of issuing a fixed penalty notice for an offence, that will generally be the appropriate disposal – unless such a notice has previously been issued to the offender, in which case a conditional caution might be more suitable.

The police have no discretion in respect of conditional cautions, which may be given only where the prosecutor considers that it is appropriate to do so, even in cases where it would have been open to the police to charge without reference to the prosecutor.

The necessary consultation should be carried out as quickly as possible, either face to face with a Crown Prosecutor located in the police station, by telephone, or using any arrangements to seek advice out of hours.

Although early disposal is desirable, this must be balanced against the need for restorative justice.

Several related/similar offences may be grouped together and dealt with by a single conditional caution. A breach of any of the conditions would make the offender liable for prosecution for all of the offences. A conditional caution is a statutory disposal and may be cited in any subsequent court proceedings.

In considering whether an offender should be cautioned, account must be taken of the seriousness of the offence and to the offender’s criminal record. Authorised persons as well as relevant prosecutors should apply the principles of the Code for Crown Prosecutors; they should also take into consideration the latest Home Office Circular in relation to cautions.

Account should also be taken of any current guidance in relation to domestic violence and hate crime, including homophobic crime and crime involving a racist element.

The following statutory requirements must be complied with:

I The authorised person has evidence that the offender has committed an offence.

II The relevant prosecutor decides:

(a) that there is sufficient evidence to charge the offender with the offence, and

(b) that a conditional caution should be given to the offender in respect of that offence.

III The offender admits to the authorised person that s/he committed the offence.

IV The authorised person explains the effect of the conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution is likely to result in the offender being prosecuted for the original offence.

V The offender signs a document which contains:

(a) details of the offence,

(b) an admission by him that he committed the offence,

(c) his consent to being given the conditional caution,

(d) an agreement to comply with the conditions attached to the caution