A CAUTION-ary Tale

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.

 

Comments

[Thersites]

Tony:

Is accepting a caution an acceptance of guilt?

[Tony Hatfield]

th,
That is the theory. But in practice there is often unbearable pressure on those arrested for sexual offences to get out of the nick as soon as possible.A decision helped by the certain knowlegde it avoids a public hearing. Even those who are acquitted of these offences often find themselves subject to violent persecution.
Hobson's Choice?

t

[Ronnie Smartt]

Thanks, Tony. I apologise for my importunity But I knew you would have something useful to say, perhaps more useful now in view of today's proposal to let the prosecutor and the police impose the penalty where there is a plea of guilty to minor offences. A proper hearing, a proper verdict and a considered sentence are part of civilised life and not just a problem for HM Treasury.

[Tony Hatfield]

Ronnie,
I am mulling over the consequences of this proposal.You'll probably have to wait till tomorrow.
t

[Thersites]

Tony:
Thanks for the clarification. As a doctor I have been told never to accept a caution, as cautions and all criminal convictions are notified to the GMC -- therefore best to take your chance with a magistrate/jury!

I hasten to add I have never been in a position to need to accept a caution or rely on the judgement of a magistrate/jury.

[jonathon dempsey]

tony,

I was very interested to see your article regarding the 'simple' caution. I have a situation currently involving someone very close to me, who 'accepted' a simple caution. It is a very tragic case and I would really like to discuss it with you.If you would like to help please let me know how I can get in touch with you.

[gabriel_g]

I was arrested for picking up my own bike lock, which i'd dropped on that route a few weeks previously and lost hope of finding. Walking on that short (less than a mile route), i saw the exact same make, and model of bike lock that i'd lost out riding, in some tall grass..realising it to be my lock i picked it up and started to head home so as to try my key (left at home) on it. A police car suddenly pulled up, i was cuffed and not allowed to explain or prove my story. Then i was put in a cell for 6 hours and pressured with the threat of 'finding a way' of getting me a criminal conviction which would make me lose my job and be unemployable. Pressured constantly to accept a caution, and told it would only be on my record for 1/2 yrs max and employers would never know about it i accepted and signed the caution, i was not allowed to see a solicitor nor talk to one. Under further pressure was made to record the officers account and accept i'd picked up something that wasn't mine from the street. ON signing the caution i read it and saw that i'll have it on my record for 5 yrs that i committed theft and admitted to it and that all employers will see this when they do a CRB check...to top it all they stole my lock! also am in process of changing career to a teacher/related profession and it terrifies me that this farce may stop me from getting a career and moving on after many years of low paid dead end work because of a history of depression. It's a police state now.

[Tony]

Gabriel_g,
Thanks for dropping by.
I think you need a lawyer....and a good'un
t

[gabriel_g]

thanks, i contacted a solicitor and by sheer coincidence he says he was the duty solicitor at the station that day..he'd asked if i wanted advice but they'd been lying to both him and me telling me 'there wasn't one available in the whole region'..and him that i 'didn't want a solicitor'.. I was rail-roaded with the absurd allegation of 'theft by finding'and i just hope this solicitor is a good one as you describe as my whole future and life may depend on it..i have read a few horror stories, one on AMnesty internationals website that show how a simple caution has ruined peoples careers and future career prospects because employers are cowardly and err on the cynical side of doubt when confronted with such a caution..a bit like saying 'don't think of a pink elephant' thats the first thing you think, don't think of my caution' opens up doubt which isnt good..i am considering leaving the country if this cant be resolved as am 37 and tired of bad luck dogging me..

[gabriel_g]

Don't think i have the patience to wait in this country til judicial review is undertaken, not happy about this but this has made me decide to leave the country, as this oppressive system which is the government handing to much power over to their guard dogs', has been the final nail in the coffin so to speak. Ironic considering my family came here as refugees in the seventies that i'm now being pushed away by a burgeoning oppressive police state style system.

[gabriel_g]

My solicitor just got my record sheet from the station, and to top it all it says 'arrested for suspicion of drugs possession', I had a tub of medication from the doctor with my name and the medicines name on it which they did mention in interview but seemed to accept my explanation..so these thugs vindictively put down a condition of arrest which will come up on enhanced CRB checks alongside 'cautioned for theft by finding'..they have pretty much ruined any future career i want to do, they're just football thugs with a badge..i hate them totally now..and i guess i have to go back to Chile which i left at 3 years old for above reason..