By Chris Proctor

in Nacro comments

With approximately 200,000 police cautions being issued each year, what effect, if any, will the Ministry of Justice’s proposed changes to the current system have?

Changes to the current cautioning regime are being piloted in three police areas: Leicestershire, Staffordshire and West Yorkshire. The pilot scheme began on 3 November 2014 and is expected to continue until November 2015. There will then be a consultation on the effectiveness of the scheme, after which it may be rolled out nationally.

The clamour for change has been gathering pace ever since magistrates warned against the excessive use of cautions, which were described as constantly being used for violent and sexual offences.

What are the changes?

Under the current cautioning regime, there are six main out-of-court disposal options available to the police: conditional cautions, simple cautions, penalty notices for disorder, cannabis warnings, khat warnings and community resolutions. Community resolutions do not form part of a person’s criminal record. Cautions (both simple and conditional) do.

The new system will reduce the number of options to two: suspended prosecutions and community resolutions. These changes aim to discourage police from using cautions for serious offences.

The changes only apply to cautions given to people over the age of 18. The youth justice system will not be affected.

What are the implications of the changes?

The burning question is: what would happen to those caught in possession of a small amount of cannabis or khat, or those accused of a relatively minor and victimless crime? What form of community resolution would be appropriate under the new cautioning regime? In all likelihood none! This means they are more likely to receive a suspended prosecution even when a more informal action might be more appropriate. A suspended prosecution, even for a relatively minor offence, could have serious repercussions for the person involved because it will appear on their criminal record.

The new cautioning regime will mean that either many people will be unfairly criminalised and/or, conversely, many people will be given community resolutions for offences that should form part of their criminal record. Currently, simple cautions, cannabis warnings and khat warnings are an effective way of dealing with those whose offences would neither meet the Crown Prosecution Service’s required public interest criteria on deciding whether to prosecute, nor be suitable for community resolutions.

The police will require more resources to monitor people who have been given suspended prosecutions. When someone is given a simple caution, a record is made of the offence and no further police involvement is required. However, when someone receives a suspended prosecution they will have to be monitored for a period of time to ensure they have complied with their conditions and if they do not, they will need to be referred to the Crown Prosecution Service.

There are also implications for employers and professional regulating bodies. When the pilot scheme is fully implemented, organisations may need additional resources in order to revisit their policies and procedures that relate to cautions.

How will the new proposals affect criminal record disclosures?

Currently, conditional cautions become spent either as soon as the conditions have been complied with, or three months after the cautions are issued, whichever is the soonest. Provided the caution is not for an offence on the Disclosure and Barring Service’s list of offences, it is eligible to be filtered from a person’s criminal record six years after it is issued.

A suspended prosecution appears to be, in effect, the same as a conditional caution, and therefore the same rehabilitation period and rules regarding disclosure will apply.

Will these changes improve the current cautioning regime?

Out-of-court disposals have three main aims: restorative/reparative justice, rehabilitation and/or punishment. It could be argued that these aims can be met under the existing cautioning regime. Community resolutions might require the offender to provide the victim with a written letter of apology, repair damage or restore property. Conditional cautions might require the offender to pay a fine or attend a course designed to help them understand the consequences of their offending.

Conditional cautions already act as a suspended prosecution as a failure to comply with the conditions of a conditional caution can lead to prosecution. Therefore, the purpose of the introduction of a suspended prosecution as an out-of-court disposal option is unclear.

The proposed changes appear to do little more than simplify the existing cautioning regime. It seems that the underlying problem is that cautions are not administered appropriately for the crime alleged. Unless the allegation relates to an indictable offence (a serious offence that can only be heard in the Crown Court), the police have unfettered discretion when it comes to administering cautions. Perhaps this is where the problem lies?