How is a police caution issued?

An adult Police Caution is an out of court disposal designed to keep minor criminal allegations out of the court system – the objective is to provide quick and cost effective justice. The current guidance states the police caution’s aims are:

1.  To offer a proportionate response to low-level offending where the offender has admitted the offence
2. To deliver swift, simple and effective justice that carries a deterrent effect;
3. To record an individual’s criminal conduct for possible reference in future criminal proceedings or in criminal record or other similar checks;
4. To reduce the likelihood of re-offending;
5. To increase the amount of time police officers spend dealing with more serious crime and reduce the amount of time officers spend completing paperwork and attending

A police caution does not have a statutory basis, namely an Act of parliament was never passed bringing cautions into effect – they have simply evolved with time into their current form as a means for the police to deal with low level offending.

An order issued by the Metropolitan police in 1853 stated that “Superintendents of Divisions in which lotteries for the distribution of game, wine, spirits or other articles are advertised by placards, bills or other notices, are to caution the persons connected with those schemes that they are illegal, and if persisted in will be prosecuted.”

The Home Office first started publishing formalised guidance on how a police caution should be processed, detailing procedural rules for the implementation of a police caution. The first guidance was published in 1985, then again in 1994 – a further iteration was issued in 2005 (Home Office Circular 30 / 2005) then again in 2008 (Home Office Circular 016 / 2008).

In 2013 the responsibility for publishing police caution procedural guidance was passed over to the Ministry of Justice who published a guidance entitled, Simple Cautions for Adult Offenders, 2013. This was edited and republished in 2015 to reflect further changes: Simple Cautions for Adult Offenders, 2015.

The first guidance in 1985 detailed that the significance of the police caution should be explained, a record should be kept in case of reoffending, and that the record should be kept for 3 years. The later versions have added, and sometimes removing, safeguards. The most prominent and fundamental safeguards found in the current guidance is the need to secure an admission before offering a police caution, the need for a suspect to be fully advised of the implications before accepting a police caution and the right to legal advice.

A police caution cannot be given for a serious offence (known as an indictable offence) unless the CPS authorise it. Also other offences, such as child cruelty or indecent images of children, which are known as “either way” offences – must have the consent of an inspector or above, and only if it is determined that there are exceptional circumstances, before a police caution can be offered.

A simple police caution cannot be offered if a person has not made a clear and reliable admission to committing the offence. A simple caution cannot be offered to secure an admission – this will be considered an unfair inducement to confess.

A person cannot be given a police caution if one has been issued in the previous two years unless there are exceptional circumstances as determined by an officer of at least the rank of inspector.

Before a police caution is issued the victim’s views ought usually to be ascertained. The views of a victim are not however conclusive as to whether a caution will be offered or not.

The reasoning for offering a police caution must be recorded and must be made by an officer of at least the rank of Sergeant (or the CPS) and who is not involved in the investigation.

The police will always need to assess the seriousness of an allegation before offering a police caution, the more serious the offence, and the person’s previous record, the less likely a caution will be offered.

Police cautions will be retained on the PNC indefinitely (100 years) unless it is expunged (deleted from the record). It will however become spent immediately and will be disclosable on DBS certificates according to certain conditions. See here for more information on the disclosure of police cautions: How long does a police caution stay on your record?

A police caution can be appealed by lodging a complaint with the police and, if unsuccessful, issuing judicial review proceedings.

If a police caution is set aside it remains possible for the police to still charge for the offence depending on the type of offence (the police have a 6 month time limit in respect of more minor allegations).

Even if the caution is not set aside, it is still possible for a private prosecution to be issued for the offence or for the CPS to reinstate proceedings if it appears the decision to issue the police caution was wrong, namely because the offence was more serious than they previously thought. Also civil proceedings may be issued by a victim, namely a claim for money damages may be issued in respect of the allegation.

Conditional police cautions were introduced by the Criminal Justice Act 2003. A conditional caution can be authorised by a police officer or the CPS. If the conditions that are attached to the caution are not complied with, without reasonable excuse, criminal proceedings may be commended and the conditional caution will be set aside.

An adult conditional caution can only be given to offenders 18 or over. The requirements of a conditional caution are similar to those of a simple caution. There must be an admission from the suspect, the effect of the caution must be explained – including an explanation of the consequences of failing to comply with the conditions – and the suspect must give their fully informed consent by signing a caution form admitting the office and which must include all the conditions attached to the caution.

Along with the adult police cautions there are also the youth caution and the youth conditional caution. The procedure for issuing these are broadly similar to simple adult cautions but do have some differences, particularly in terms of oversight.

Youth cautions and youth conditional cautions are available for youths age 10-17, both have a statutory basis. Youth cautions replaced the previous final warning and youth reprimand scheme.

The MOJ issued separate guidance for both youth cautions and youth conditional cautions in 2013. The DPP also issued guidance on youth conditional cautions which can be found on the CPS website.

Youth cautions are issued and monitored with a greater degree of scrutiny than adult simple cautions. Both the police and the Youth Offending Team (YOT) have a role in determining whether a youth caution is appropriate. Before a youth caution can be administered the police must conclude there is sufficient evidence, the youth must admit the offence and the police must determine that prosecution or a youth conditional caution is not appropriate.

The implications of the youth caution need to be explained to a suspect, however in contrast to adult cautions, there is no requirement for the explicit “consent” of the youth concerned – the youth must nevertheless sign a form to confirm the caution was given for the offence indicated. If a youth has never received a caution then the YOT can, but is not obliged to, assess the youth for an intervention programme. If a youth has previously received a caution then the YOT must assess the youth and put an intervention in place unless it is deemed inappropriate.

Youth conditional cautions can be authorised by the CPS or police – all cases need to be referred to the YOT who should carry out an initial screening for suitability. Youth conditional cautions are intended as a more robust response to offending than a youth caution. As with adult conditional cautions, if the conditions are not complied with then prosecution may be commenced. As with other cautions there must be sufficient evidence to charge, a conditional caution must be the appropriate disposal, the youth must admit the offence and the impact of the caution must be explained. In contrast to youth cautions, but similarly to adult cautions, youth conditional cautions require the youth’s informed consent including signing a form which details the offence and the conditions attached.

NB, November 2020 edit: Youth cautions, warnings and reprimands are immediately  “protected” subsequent to changes implemented by the government. This means that even for offences that appear on the DBS list of unfilterable offences, they will not be automatically be disclosed on an enhanced and standard DBS check. It should be noted however despite the changes, it is still possible for facts related to youth cautions, warnings or reprimands to still be disclosed on an enhanced DBS certificate if the police feel the information is “relevant”.

If you have been offered a police caution and are wondering whether to accept it, then please get in touch. We are specialist criminal defence solicitors with expertise in dealing with all issues related to police cautions and other out of court disposals.

It may be the case that we can negotiate with the police for your case to be dropped altogether or for a PND or community resolution to be considered depending on the facts of your case – a PND or community resolution will not show up on a standard DBS check.

If you have already been issued with a caution (simple or conditional) then please get in touch, we have extensive experience of challenging unlawfully issued police cautions and have had many cautions expunged (deleted) from the Police National Computer (PNC).