The use of cautioning for adults, reprimands and final warnings administered to those under 16, have come into the public debate surrounding Ruth Kelly and the “Plague of Pervs”
I suspect most criminal lawyers have experienced both the good and bad sides of these “non–judicial” determinations.
In order for cautions to be fairly administered, the accused person must clearly understand the consequences of accepting one. My experience suggests in many cases this may not be so.
An example that immediately comes to mind was of a young man who had been arrested with his friend for damaging a fence. Both appeared to have admitted causing the damage and because neither been in trouble before accepted the cautioning procedure.
For some reason one of them, call him Darren, came to see me. After a couple of minutes’ consultation, it became clear that he was no more guilty of the offence than I was. Darren had been walking along with his friend who, without warning, had suddenly decided to pull up a piece wooden fencing and break it in two. Both were seen, the witness called the police and they were carted off to the local nick.
I explained to Darren that “Being There” was the last great film in which Peter Sellers starred; it was not evidence of a crime. I then secured the tape of the interview from the police. Darren told the police what he had told me. I subsequently spoke to the officer in charge, who was a little miffed when I explained that he would not accept the caution. As the police had no evidence of any “joint enterprise” and Darren had made no admissions in interview, the CPS had no option but to drop the case.
I had many similar instances until I retired and I suspect most criminal lawyers have similar cases in their files.
The “wrong caution” cases seemed to fall into two categories.
The young person whose parents saw a caution as a way of avoiding an embarrassing attendance before the Youth Court; they were not too fussed about the innocence or guilt of their child.
Or the adult who was unrepresented at the police station and who believed honestly, but wrongly, he had committed the alleged offence.
In both cases, the lack of good legal advice was the common thread.
There were many cases where the client undoubtedly benefited from a caution or reprimand.
The middle-aged woman working on the till in a supermarket who had been caught in the firm’s CCTV pinching money, and who admitted the offence as soon as she was arrested. She knew what she was doing; there was no evidence of psychiatric problems. She had lost her job and I felt that she was unlikely to survive unscathed through a criminal justice system. In these cases, it is important to be in possession of sufficient evidence to discharge your obligation to properly advise your client.
Between these two extremes, there is a core of much more difficult cases. Had I been given enough evidence? Was he or she telling the truth? With these, it was clearly a decision for the client-though I always made sure a written note was taken. A client, having refused a caution only to be convicted, is unlikely to shout your competence from the rooftops. Though a note of the advice given may avoid a subsequent hit on your professional indemnity insurance!
What concerns me in the present “witch hunt” mood is that a caution may viewed as equivalent to a conviction. In many cases that may be true, but I have no doubt in a minority, perhaps a significant minority of instances, the accused person accepted a caution or reprimand for the reasons I have explained. And in sexual offences, the pressure on the detained person is much, much greater.
This is an extract from the Devon and Cornwall Police booklet entitled:
“Child Protection: Procedures for Barring or Restricting People Working with Children in Education”
I’m not picking out this police force. I’m sure other forces have similar protocols.
It contains this advice when cautioning in sexual cases.
“The decision to caution an offender is a decision for the police in accordance with the cautioning guidelines issued by the Home Office in Appendix 18/1994. The 1994 guidelines set out National Standards for Cautioning, which create a framework of general principles and practice within which police forces should operate when cautioning an offender.
Those guidelines apply also to cautions for sexual offences specified in the
[Sexual Offences] Act. Under those guidelines, one of the conditions, which must be met before a caution can be administered, is that the offender must understand the significance of a caution and give INFORMED consent to being cautioned. Note 2D of the National Standards indicates the matters, which should be explained to the offender in order that the significance of a caution be understood:
"The significance of a caution must be explained: that is, that a record will be kept of the caution, that the fact of a previous caution may influence the decision whether or not to prosecute if the person should offend again and that it may be cited if the person should subsequently be found guilty of an offence in court."
In cases involving a sexual offence specified under the Act, however, this explanation of the significance of a caution must be extended to take account of the fact that the Act imposes a statutory requirement on offenders cautioned for such an offence to notify the police in the area in which they are residing of their name and address and any changes to these details etc. It is therefore essential that a person deemed suitable for a caution for such an offence is informed of the consequences of accepting a caution BEFORE CONSENT TO CAUTION IS SOUGHT. If such information is not given in advance of administering a caution, an offender would not be able to give his INFORMED consent and the caution would therefore be invalid. In the case of vulnerable groups, the explanation should be given in accordance with the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, as indicated in the 1994 guidelines.
When explaining the implications of accepting a caution for a specified sexual offence, the police officer administering the caution should make it clear that if the offender agrees to accept the caution, for a period of 2 years, (1 year if the offender is under 18), he will be required, (as he would if he were convicted), on pain of fine or imprisonment, to notify the local police of his address, of any change of address and of any temporary address where he spends seven days or more a year in aggregate."
There are two things I find worrying.
Although the consequences of registration and failure to do so are clearly spelled out, nothing is mentioned about the effect of the caution on the employability of the accused. Nothing is mentioned about S142 of the Education Act- the so-called List 99. This is particularly strange omission bearing in mind the title of the pamphlet.
Secondly, at the time of the caution, the person may not have received legal advice. It is surely appropriate at the point when the person is about to accept a caution, and perhaps damage a career for life, he or she should be reminded of his rights to obtain legal advice. Despite the Police and Criminal Evidence Act, the seeking of legal advice is still the exception rather than the rule for those detained in police custody.
These are two simple and practical steps the government ought to consider before they come up with the solution to the difficulties that have arisen in the past week.