A caution is an official police warning, commonly offered to low level offenders as an alternative to criminal prosecution. It is also a quick and easy way for the police to clear crime off the books without them having to go through the inconvenience and risks of a court trial. For this reason the caution is regularly abused as a way of criminalising people who would otherwise be found ‘not guilty’ in court, as well as letting those who would be otherwise found ‘guilty’ walk free.
To victims of crime, the caution seems like nothing more than a slap on the wrist; but what both victim and suspect are never told, is that if they believe that a caution has been issued unfairly they can appeal against it…
How the police misuse cautions
Firstly, don’t confuse the formal caution – an official written notice which must be signed – with the verbal caution: reminding you of your right to silence. The formal caution is also known as a conditional or simple caution, setting out the offence in writing and acting as an agreement not to prosecute as long as the offender abides by its terms.
Although a caution is not technically a criminal conviction, it virtually serves as one. It will show up on any Enhanced Criminal Record Check (a record check necessary to secure certain types of employment) and will also serve as a ‘bad character reference’ should any further allegations be made.
As a caution can only be issued if the suspect agrees to it, the police will often resort to underhanded tactics to secure that agreement. In many cases they will intentionally mislead suspects about the purpose of agreeing to a caution, downplay its significance and make it look as if they are ‘getting off lightly’. The fact that the police are unable or unwilling to secure the necessary evidence or make the effort to prosecute will never be revealed.
To victims of crime, a very different story will be told. Rather than admitting straight out that the perpetrator will not be prosecuted, the police will blame the Crown Prosecution Service (CPS) for ‘telling them to issue a caution’; blame police cuts; blame a lack of resources; or blame policies and procedures. Sometimes they will even blame the offender, signifying their age, good character, mitigating circumstances or lack of previous convictions as a reason for issuing a caution rather than a court summons. They will often dodge their obligations to discuss the victim’s views on issuing a caution, by claiming to have telephoned the victim without success, although no such call will ever have been made.
To suspects who are wrongly accused, unjustly treated or misinformed, agreeing to a caution can be a huge mistake that they very quickly regret. For victims who have suffered loss or damage at the hands of another, a caution appears to be bargain basement justice that favours the offender over the victim.
Challenging a caution
Before the police can offer a caution to an offender there are five conditions that must be satisfied, as set out within sections 23 and 24 of the Criminal Justice Act:
- The police must have evidence that the offender has committed an offence.
- The police or CPS must determine that there is sufficient evidence to charge the suspect with the offence.
- The offender must admit that he committed the offence.
- The police must explain the effect of the Caution and warn the offender that failure to comply with any of its conditions may result in prosecution for the original offence.
- The suspect/offender must sign a document admitting the details of the offence and giving consent to receive the caution and any conditions attached to it.
The Crown Prosecution Service insist that the police may not issue cautions involving crimes of domestic violence, hate crime or indictable (serious offences). However, as the CPS are just as keen as the police to dispose of offenders they are willing to play fast and loose with these rules. For instance, you will find the police willing to issue cautions where the complainant or victim is a member of the public, but for many victimless crimes such as road traffic offences, public order offences or where the police officer himself is the victim, the police and CPS will readily pursue a full criminal prosecution.
If you were issued with a caution and you believe the police failed to follow any of the correct procedures then you can appeal against their decision. In the first instance, you should write a letter of complaint to the relevant force setting out the reasons why you believe the caution was wrongly issued and make a request to have it deleted.
If you were the victim and you believe the police should have prosecuted rather than cautioned, then you can also make a complaint to the relevant force. Under the Code of Practice on Adult Conditional Cautions, the police are expected to take the victim’s opinion into account, but more often than not they will disregard this and issue the caution without consulting them. Although it’s unlikely the police or CPS will reverse their decision because the victim objects to it (nor can you appeal a caution under the Victim’s Right to Review Scheme), making a written complaint to the Professional Standards Department of the relevant force would be a vital first step in finding out the reason for issuing the caution before appealing further.
If the police won’t heed your complaint as either suspect or victim, the best remedy would be to challenge the caution via a process known as ‘Judicial Review’. This is where the police’s decision is put before a court to decide upon the lawfulness of it. If the judge comes to the conclusion that the police acted unlawfully, disproportionately or outside of it’s power by issuing a caution, then he can instruct them to reassess the decision or delete it.
All applications for judicial review must be made within 3 months from the date the caution was issued.
Unfortunately, judicial review is not for the feint of heart or shallow of pocket. A solicitor might charge you anywhere between £10,000 – £30,000 to achieve an outcome, with no guarantee of success. The chances of obtaining legal aid to apply for judicial review would also be slim, which means that your only option would be to acquire legal insurance, pro bono assistance (free work) from a solicitor or barrister experienced in judicial review, have a human rights organisation such as Liberty or Amnesty take up your corner or represent yourself in court. And that’s the good news about Judicial Review!…
The bad news is that even if you succeed and a judge orders the police to reconsider the caution, the police are still within their rights to issue it all over again, albeit using a different procedure to reach the same decision.
The only upside to judicial review is that it begins by forwarding a letter of claim to the chief constable telling them you intend to challenge the decision in the high court and giving him the opportunity to remove the caution. Anyone can write such a letter and in some cases, this letter may be all that is needed to get the police to reverse their decision. But if your letter is badly drafted or appears as an empty threat, it will most likely be dismissed out of hand.
One last avenue of recourse remains for any victim of crime who believes that an offender escaped prosecution unfairly. If they can demonstrate that the caution was issued in breach of the Adult Offender Simple Caution Scheme, (or in the case of conditional cautions, in breach of the Director’s Guidance on Conditional Cautioning), they could bring a private prosecution and have the offender summonsed to court to answer to the charges.For more information on how to bring a private prosecution please take a look at our article on “What Can You Do If The Police Refuse To Investigate A Crime”.