7. Memorandum submitted by
the Crown Prosecution Service
CONDITIONAL CAUTIONING
EXECUTIVE SUMMARY
1. Conditional Cautions are in their early
stages of national implementation. This will not be complete until
April 2008. Additional punitive powers are to be added to the
existing rehabilitative and reparative options when the new Code
for Conditional Cautions comes into effect in the autumn of this
year.
2. It is estimated that the scheme will
not be fully bedded in and established within the justice system
until 2009. In the meantime, there are some challenges to be addressed
and procedural changes to be implemented before the scheme can
be fully effective.
3. The possibility of reducing the burden
on the courts' lists through the substantial us of Conditional
Cautions as an alternative to prosecution in appropriate cases
offers the promise of improved case handling for the more serious
and contested offences. Where the arrest and cautioning can be
completed on the same day, Conditional Cautioning also offers
substantial benefits for the victim, community and the offender.
4. As Conditional Cautions are not convictions,
they offer advantages to those seeking employment and reduce the
likelihood of social exclusion which a conviction can deliver.
FACTUAL INFORMATION
Introduction
5. Conditional Cautions were introduced
by the Criminal Justice Act 2003 which enabled Crown Prosecutors
to suspend a prosecution in appropriate cases against an offender
who admits the offence in return for some positive act of reparation
(letter of apology or making good damage) or rehabilitation, for
example, counselling for drug or alcohol addiction or by undertaking
not to commit a further offence during an agreed period. Implicit
in these powers is also the ability to require the offender not
to go to a defined area or to stay away from named individuals
for a proportionate period as long as this supports either rehabilitation
or reparation.
6. The range of offences which can be the
subject to a Conditional Caution is set out in the Director of
Public Prosecution's Guidance for prosecutors (see Annex A). No
indictable only offences are included, reflecting the view that
such offences are by their nature intrinsically too serious for
inclusion and that the public interest requires a court outcome
(although they can, in limited circumstances, be the subject of
a simple caution). Although all summary only offences have been
included, only a selection of offences triable either way are
included bearing in mind the need for serious offences to be disposed
of in court within this range of offending. Burglary is not included,
nor are any of the either way assault or public order charges.
Many of these are sent to the Crown Court for sentence in any
event.
7. The CPS has imposed internal filters
so that inappropriate cases are not offered a Conditional Caution.
These include a ban on offering a Conditional Caution in the circumstances
where the offence was committed on court bail, or the offender
was subject to a court order and is therefore liable to be re-sentenced
or liable for recall to prison. Additionally the offender will
not be offered a Conditional Caution if the circumstances of the
offence are too serious or a denial has been made or a possible
defence put forward.
8. Conditional Cautions are not registered
as a criminal conviction, although naturally and inevitably they
do become part of a person's criminal record. Convictions can
and do contribute to the social exclusion of offenders which is
especially damaging for young men and women in a competitive job
market. It is proposed to make them subject to the Rehabilitation
of Offenders Act which should ensure that an offender will be
rehabilitated upon satisfactory completion of the conditions over
an agreed period.
Early Implementation and Results
9. Early implementation was commenced in
late 2004, leading to seven sites being involved, each with limited
aims and in one police BCU per force. Lancashire moved quickly
to force-wide implementation and has led the implementation in
terms of numbers of Conditional Cautions and in the inventiveness
of conditions.
10. The implementation plans are being driven
by a joint CPS/ACPO Board, with oversight by the Law Officers.
They are overseeing a move to Conditional Cautions in at least
one police Basic Command Unit per force by July 2007 and across
all force areas by April 2008. As at 27 February 2007, six forces
have Conditional Cautioning across the entire force area and a
further 13 have partial implementation. 1,615 Conditional Cautions
have been issued so far, with 1,135 of that number in Lancashire.
11. By far the greatest number of Conditional
Cautions have been issued for compensation, though other conditions
have been piloted, such as referral to the Drug Intervention Programme
or for alcoholic counselling, and there have been some letters
of apology written by offenders. To be of good behaviour during
the currency of the Conditional Caution has been a standard condition—similar
to a conditional discharge. The RESPECT Task Force has now provided
funding for a year for the seven early sites to develop community
based projects for reparative works so that offenders can be diverted,
where appropriate, to a kind of mini community service. This is
to be evaluated by the Office for Criminal Justice Reform.
Low numbers and improvements
12. The low numbers hitherto have been due
to a number of factors, including lack of awareness of the scheme,
and perception that the procedure was too bureaucratic compared
to say a penalty notices for disorder or indeed a charge. Another
potential reason for low take-up is that the current statutory
Code which governs the operation of the scheme requires an admission
of the offence in a cautioned interview under the Police and Criminal
Evidence Act (PACE), although this was not a requirement of the
primary legislation. Since in many cases, there is no such interview,
or, in interview, the defendant remains silent (but later goes
on to tender a guilty plea at court), a considerable number of
offenders have been unable to be offered a Conditional Caution.
It should be noted that the new draft Code, currently out for
consultation, has removed the PACE interview admission requirement
and reverted to the strict requirements of the Act that admissions
are made to the person administering the caution.
13. Further, new procedures are to be piloted
which will involve a 24 hour seven day a week service by the CPS
for the police to enable decisions on Conditional Cautions to
be given instantly without the need to bail the offender back
to the police station pending a CPS decision. Additionally, the
file requirements have been substantially eased to reduce bureaucracy
and processes have been developed so that the decision will be
given within five to 10 minutes by telephone in the majority of
cases.
14. Central to this new procedure, which
will be piloted and gradually introduced in the autumn with the
newly Parliamentary approved Code, will be much more consultation
with the victim. It is the intention that the victim will be canvassed
about the proposal to conditionally caution wherever possible
and must be so where the conditions will affect him in some way.
The final decision and the approval of conditions must of course
be taken by the prosecutor but the views of the victim will be
highly influential in the disposal of the case. Where the victim
is a community, the views of the community should be sought.
Extension of the scheme to include punitive conditions
15. The Police and Justice Act 2006 provided
for punishment to be included as part of the statutory objectives
of a condition attached to a caution. Punitive conditions could
include a limited financial penalty and attendance at a particular
location for up to 20 hours.
16. These new provisions will allow prosecutors
to impose a financial penalty condition of effectively up to £200
(in some cases less) where a reparative or rehabilitative condition
was not appropriate or would not represent an appropriate and
proportionate response to the offending behaviour. As provided
for in the Act, the offences eligible for such a condition, and
the maximum level of the financial penalty, will be set out in
an Order approved by Parliament. The attendance requirement allows
a prosecutor to require reparative works of an indirect nature
(the current limitation of the reparative objective is that any
work imposed as a condition is required to be of a direct nature).
So where an offender has broken say, a window, but the victim
does not want the offender to repair it or it may be beyond the
skills of the offender, alternative activities, such as cleaning
up litter, can be required.
Impact on the courts
17. The removal of a good number of cases
from the courts will free up time for the more efficient and effective
handling of more serious and contested cases. Conditional Cautions
when fully implemented have the potential to remove a large number
of the cases currently disposed of by a fine and/or conditional
discharge. With long waits for summary trials, a scheme that will
deliver same day justice cheaply, efficiently and above all fairly
through the oversight of the independent prosecutor, has much
to recommend it.
18. In the interests of transparency, the
courts will be provided with regular information on the operation
of the scheme in their area, for example, the offences dealt with
by means of a Conditional Caution, the types of conditions imposed
and the non-compliance rate. In addition, they will deal with
prosecutions of cases initially dealt with by means of a Conditional
Caution, but where there has been a failure to comply. Breach
of condition in itself is not an offence.
Aims of Sentencing
19. The purposes of sentencing, as set out
in the Criminal Justice Act 2003, are:
— The punishment of offenders.
— The reduction of crime (including
its reduction by deterrence).
— The reform and rehabilitation of
offenders.
— The protection of the public.
— The making of reparation by offenders
to persons affected by their offences.
The contribution of Conditional Cautioning to
sentencing
20. As can be seen, Conditional Cautioning
potentially contribute to all these objectives and can do so very
quickly (the same day of the arrest) and at less cost than the
process of going through one or more court hearings. By the imposition,
with agreement, of conditions without a formal court order, low
level and proportionate results can be achieved which make reparation
to victims and communities, and can rehabilitate and punish the
offender; for example, a relatively minor offence which was football
related might fall short of the requirements for a full three
year football banning order. A penalty notice would have no impact
other than that of a minor financial penalty. However, within
a conditional caution framework, such an offence could be dealt
with by a condition not to go to the football team's ground for
four weeks with an additional requirement to present one's self
at the police station at each kick off time on a Saturday afternoon.
21. Conditional Cautioning can form the
basis of restorative justice in the sense that, providing victim
and offender agree, conditions of a general nature can be set
that ensure a restorative justice meeting will take place. Additionally,
the plan of action agreed at any such meeting could be enforced
by being made a condition. Some early work on this has been undertaken
in Merseyside and Thames Valley.
22. Numbers of Conditional Cautions being
offered should rise in the next year, aided by recent advice from
counsel that the CPS must ensure that a Conditional Caution is
considered in each case where the police have charged an offender
to court (the police may charge offences contained within a portfolio
of offences approved by the DPP without reference to the CPS).
Enforcement issues
23. Enforcement of conditions raises some
issues and challenges. Financial penalties are collected by the
courts under an informal agreement. Good behaviour or restrictions
are self policing in the sense that non compliance runs the risk
of arrest for re-offending or if the police become aware of the
failure to comply with a condition/restriction. It is proposed
to bring into force the new police powers of arrest and detention
for suspected non-compliance (provided for in the Police and Justice
Act) later this year.
24. The police have concerns about spending
resources on any kind of proactive campaign of enforcement. Such
duties would be new to the police whose previous involvement with
these types of offences was simply to charge and hand the case
to the CPS for prosecution.
25. For any kind of enforcement of good
works etc, while the victim can be contacted for information on
progress where involved, other activities would be reliant on
perhaps the local council or whatever organisation or body overseeing
any activity where this had been agreed. Arrangements such as
these have yet to be negotiated but the potential is there for
a wide range of activities at local level and for the involvement
of the local community. As in all cases, non-compliance with a
condition will probably, absent a reasonable excuse, lead to prosecution
for the original offence. It will be important for the community
to know that non-compliance is met by rigorous prosecution.
CONCLUSION
26. Conditional Cautions are tailored to
be appropriate for the offence and the offender and commensurate
with his means. The emphasis is and will be primarily targeted
on rehabilitation and reparation. Non-payment of any financial
penalty is not an issue in the sense that this leads to prosecution
rather than protracted periodic payments.
27. If the police are able to canvass conditions
with the victim, this will also add to the latter's feeling of
empowerment and produce considerable victim satisfaction. Additionally,
prosecutions for non-compliance will be assured by a prosecutor's
assessment of evidential sufficiency.
28. Conditional Cautions act proportionately
especially with those experiencing an early contact with the criminal
justice system. They may prove to be a sufficient disincentive
against further offending for many, assisted by the retention
of the fear of a court appearance.
29. Although the public are becoming more
aware of Conditional Cautions, there is some way to go before
they are an established part of the criminal justice process.
National implementation will not be complete for another year
and the bedding in of the initiative is thought likely to take
another year after that.
30. A cautious start has been made but Conditional
Cautions, which are likely to increase considerably in numbers,
offer an alternative for offenders, especially those that have
no previous convictions since they will not constitute a criminal
conviction and may therefore offer less of an impediment to those
seeking employment in the job market.
31. Conditional Cautions also offer the
possibility of reducing the burden on the courts' lists, leading
to improved case handling for the more serious and contested cases.
Where the arrest and cautioning can be completed on the same day,
Conditional Cautioning also offers substantial benefits for the
victim, community and the offender.
26 March 2007
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