3 Proposed reforms
Simple cautions
21. There is no statutory basis for simple cautions.
The practice of cautioning juvenile offenders was developed by
the police, supported by a series of Home Office police circulars
published from 1978 onwards. The practice was later extended to
adult offenders. Cautions are administered by the police using
their own discretion, when the following conditions apply:
· the
offender must admit guilt, and agree to the caution being administered;
· there
must be sufficient evidence to provide a realistic prospect of
prosecution; and
· it must
be in the public interest to dispose of the offence by way of
caution rather than to prosecute.
22. As with other OOCDs, there has been concern that
the police have used simple cautions to deal with apparently serious
offending behaviour. In January 2013, the then chairman of the
Magistrates' Association wrote to the Justice Secretary, Rt Hon
Christopher Grayling MP, calling for an inquiry into the police
use of cautions, saying that the practice had "got out of
hand".[22] This
led to a review of simple cautions which reported on 19 November
2013, recommending that restrictions to simple cautions be introduced
either through legislation or guidance, and that a wider review
of OOCDs be conducted.[23]
23. Following those recommendations, the Government
published revised guidance on simple cautions and a consultation
document on the wider framework. In addition, the Criminal Justice
and Courts Act 2015 seeks to place restrictions on the circumstances
in which cautions may be used. The restrictions are greater the
more serious the offence:
· For
the most serious offences (indictable only), a police officer
would not be able to give a caution except in exceptional circumstances
relating to the person or the offence, and with the consent of
the Director of Public Prosecutions (DPP).
· If the
offence is an either-way offence specified by order, a police
officer could only give a caution in exceptional circumstances
relating to the person or the offence, but would not need the
permission of the DPP.
· For
repeat offenders, where a person has been convicted of, or cautioned
for, an offence in the previous two years, restrictions will also
apply if the offence is triable on summary procedure or either-way,
but not specified in an order.
24. The latest Government statistics on OOCDs show
that in the 12 months ending June 2014, cautions for indictable
offences (including either-way offences) decreased by 11%, to
just over 86,000. In this period, there were just over 500 cautions
for indictment-only offences. It is explained that this is a result
of the guidance issued to police forces, and that in the following
seven-month period, just over 200 adult cautions for indictable
only offences have been issued.[24]
The Criminal Justice and Courts Act will put the guidance on a
statutory footing.
25. The reforms that have been made to simple
cautions will go some way to restore public confidence in this
type of disposal. The introduction through guidance of a high
bar for their use when dealing with serious or repeat offences
should ensure that they cannot be used, except in exceptional
circumstances, for more serious or repeat offenders. The new guidance
has already gone some way to reducing the number of simple cautions
for indictable offences, and we support the proposal that the
guidance be put on a statutory footing.
Wider review of out-of-court disposals
26. The Impact Assessment to the 2013 review of OOCDs
set out the following rationale for reassessing the whole system:
The OOCD landscape has developed organically
and in response to a need to deal with first time and low-level
offending effectively. As a result, the landscape is complex,
making OOCDs difficult for practitioners to administer and hard
for the public to understand. There is a need for a shared understanding
of OOCDs, both in terms of their purpose and a process for administering
them which reduces bureaucracy; facilitating police officers to
spend more time on the front-line. There is concern that OOCD
are used to tackle serious and repeat offending and this has been
heavily publicised in the media in recent times. The review will
seek to address this, building on the findings of the recent simple
cautions review.[25]
27. On 3 November 2014, the Government published
its consultation response. It stated the proposals would "simplify
the adult disposal framework, putting victims at the heart of
the system".[26]
The new framework will include two, new adult disposals:
· A
suspended prosecution designed to tackle more serious offending,
such as theft, violence or drug offences, where there is sufficient
evidence to prosecute but the public interest is better served
through the offender complying with appropriate conditions. Those
who do not comply with these conditions may be prosecuted for
the original offence.
· A new,
statutory community resolution aimed at lower-level and/or first-time
offending, such as minor incidents of criminal damage or low-value
theft. This disposal would allow the police to apply a wide range
of approaches to tackling offending, ranging from an apology to
the victim through to financial compensation or rehabilitative
measures.[27]
28. The Government has decided to pilot elements
of the new structure with three police forces—West Yorkshire,
Leicestershire and Staffordshire—for a 12-month period beginning
in November 2014. During this period, the three forces are focusing
on the two disposals that are most similar to the new framework:
the community resolution and the conditional caution. The forces
will therefore cease using simple cautions, cannabis warnings
and khat warnings, and will restrict their use of PNDs. The pilot
will test how practitioners respond to the proposed changes and,
in particular, the impact on charging decisions made by the police
and CPS, as well as assessing the impact on victims of crime.[28]
29. At the time of the consultation response, Richard
Monkhouse said: "We have pressed hard for a simplification
of cautions, so this pilot is welcome especially in empowering
victims".[29] He
told the Committee "I think the aim is to see whether there
is a better system than the six alternatives that exist at the
moment"[30] but
added that the simple caution was not an option in the pilots.
He pointed out that the simple caution, which had gone from the
new pilot, was the thing that was used most frequently and, for
many cases, it was entirely appropriate. He thought it would be
"very interesting to see whether after the pilot and the
results of the pilot there is a desire to bring back the simple
caution".[31]
30. At the time of the consultation response, Chief
Constable Owens said the reforms should reduce bureaucracy and
help increase public understanding.[32]
She told the Committee that a system that was simpler, less bureaucratic
and easier to explain had to be in the public interest. In addition,
clear guidance on the two disposals would help to resolve issues
such as the variation of usage across the country and offenders
understanding the implications of accepting an OOCD.[33]
The new system was an escalatory process, and it was emphasised
that offenders "should have one community resolution, one
suspended prosecution/conditional caution and then […] go
to court".[34] The
very early feedback on the pilots from officers, the CPS and victims
has been good.[35]
31. We agree that the current "organically
developed" OOCD system is too complex, which does not help
police officers. The proposed new system benefits from being a
straightforward, escalatory process. In addition, the new system
emphasises disposals to which conditions and measures are attached,
which can address patterns of offending behaviour and puts victims
at the heart of the system. We believe the introduction of a new
system will mean that the police can start from a clean slate,
and show that they can tackle low-level offending appropriately.
Scrutiny panels
32. In order to provide feedback on the use of OOCDs,
most police forces have established independent scrutiny panels
to monitor their use. The Government's consultation described
the panels as "a good means of increasing transparency, as
well as ensuring greater consistency, through providing feedback
and identifying training needs". However, the current arrangements
for scrutiny panels vary considerably between forces in terms
of scope, membership and frequency of meetings, with Police and
Crime Commissioners performing the oversight role.
33. The Magistrates' Association argue that scrutiny
panels are an effective way of overseeing the use of OOCDs in
a local area, and of holding the police to account.[36]
Richard Monkhouse told us they were a new creation, with the longest-serving
one having been set up two years ago in Cheshire. He explained
that the panel can look at an indictable offence that has been
given a caution, review whether the correct process has been followed,
and decide whether the outcome was justified. The panel's findings
can then be reported back through the Police and Crime Commissioner,
local justice boards or other channels.[37]
Chief Constable Owens said that they would enable the police to
deal with consistency issues and, where OOCDs have been issued
inappropriately, these can be identified and learning or feedback
can then be provided to the officers involved".[38]
34. Because of the way that scrutiny panels have
evolved, there is no agreement as to how they should be constituted.
Richard Monkhouse told us that they are police-led groups, which
might include a mix of magistrates, prosecution, defence, probation,
and CPS representatives to enable cases to be assessed effectively.
He did not know of any that included victims of crime, and said
that that the victim needed to be involved in the choice of OOCDs.[39]
Chief Constable Owens said that all panels included the magistracy
and police representatives. Some panels included lay people, and
some included the police and crime commissioner or their representative.
She thought that, in line with the Government's intention for
more localism, it was almost inevitable that different Police
and Crime Commissioners would have suggested different structures
for their local panels. However, she agreed that it was good to
have a victim's voice on the panel, "whether they be victims
themselves or through Victim Support or other voluntary organisations".[40]
35. Scrutiny panels must be established in all
police force areas, so that decisions to use OOCDs are reviewed
for appropriateness and consistency across the country. In addition,
the feedback the panels provide will assist in identifying any
extra training that police officers require. Therefore, we recommend
that the representative of the police on the scrutiny panel be
at least at the rank of Assistant Chief Constable, so that they
have the authority to implement recommendations emanating from
the panel.
36. It is important that the scrutiny panels have
a range of experience in order to assess the appropriateness of
OOCD decisions. This should include the experience of victims,
whether that voice is provided through a voluntary organisations
or through victims themselves. This input should help improve
the feedback that the panels provide. In addition, if the public
are aware that victims are involved in reviewing OOCD decisions,
they may be more confident in the system as a useful mechanism
to deal with low-level offences.
22 http://www.telegraph.co.uk/news/uknews/law-and-order/9830254/Use-of-police-cautions-has-got-out-of-hand-magistrates-warn.html Back
23
HC Debate 19 Nov 2013: Column 50WS Back
24
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/376898/criminal-justice-statistics-update_to-june-2014.pdf Back
25
https://consult.justice.gov.uk/digital-communications/out-of-court-disposals/supporting_documents/oocdimpactassesment.pdf Back
26
https://www.gov.uk/government/consultations/consultation-on-out-of-court-disposals Back
27
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370053/out-of-court-disposals-response-to-consultation.pdf Back
28
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/370053/out-of-court-disposals-response-to-consultation.pdf Back
29
http://www.bbc.co.uk/news/uk-29859758 Back
30
Q28 Back
31
Q50 Back
32
http://www.bbc.co.uk/news/uk-29859758 Back
33
Qq 60 and 62 Back
34
Q75 Back
35
Q63 Back
36
Magistrates' Association, Submission to Ministry of Justice out-of-court disposal consultation, 7 Jan 2014, pp 4-5 Back
37
Qq 37-38 and 42 Back
38
Q64 Back
39
Q40 Back
40
Q64 Back
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