Conditional cautioning - incorrect or inappropriate decisions
This guidance addresses:
- the circumstances in which a decision by a prosecutor to authorise the administration of a conditional caution may be reversed by a subsequent review, with the caution being rescinded; and
- whether any subsequent prosecution in such circumstances would amount to an abuse of process.
When deciding whether to authorise the police to administer a conditional caution, a prosecutor must comply with the requirements of sections 22 and 23 of the Criminal Justice Act 2003 ("the Act"), the Director's Guidance on Conditional Cautioning and the Code of Practice for Conditional Cautions . The Divisional Court has made it clear in R (on the application of Guest) v DPP 2009 that, as with a simple (or "police" caution), the decision to administer a conditional caution may be judicially reviewed. If shown to be unlawful, either because the proper procedures have not been followed or because it has been given in respect of an offence that is outside the Director's Guidance, or because it is otherwise unreasonable on Wednesbury principles, the decision to authorise and then administer a conditional caution may be quashed and the caution set aside.
Where a caution or conditional caution is quashed by the Divisional Court, the "slate" is, in effect, "wiped clean" (see Jones v Whalley  UKHL 41 at paragraph 13, per Lord Bingham). No citable caution exists and the case must be reviewed again to determine the appropriate disposal. This may include prosecution if both stages of the Full Code Test are satisfied. The Divisional Court in the case of Guest ruled that, where a conditional caution is quashed, it does not follow that any subsequent prosecution in respect of the same alleged offence would inevitably amount to an abuse of process: whether in any given case a court would stay criminal proceedings before it was a matter for that court to determine.
Therefore, (unless the challenge is clearly ill-founded or vexatious), where the correctness of a decision to administer a conditional caution is called into question, whether in the context of proceedings for judicial review or otherwise, the case should be re-reviewed as soon as possible. The re-review should be undertaken by the lawyer-manager of the original decision taker.
If the decision to authorise a conditional caution has been taken in error because, for example, the offence for which the caution was issued is not included in the list of eligible offences in Annex A of the Director's Guidance or because the decision is clearly unreasonable in all the circumstances, the decision should be set aside.
Notice of the setting aside must be given to the police and to the person who has been given the conditional caution. If possible, any victim directly affected by the decision should also be informed.
Consideration can then be given to whether the alleged offender should be prosecuted. This approach is consistent with paragraph 10.1 of the Code for Crown Prosecutors, which states that, although normally when a suspect or defendant is told that there will not be a prosecution this will be the end of the matter, occasionally there may be special reasons where this may not be so. These reasons include those "cases where a new look at the original decision shows that it was wrong, and in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision: see paragraph 10.2(a).
Any decision to set aside a conditional caution and/or to authorise the institution of a prosecution following such a setting aside should be approved by a lawyer of at least level E grade. Chief Crown Prosecutors will want to ensure that they have systems in place to be advised of any case in which a conditional caution is set aside.
The evidential stage of the Full Code Test should not normally present any difficulty, since it should have been met before the decision was taken to authorise the conditional caution in the first place. It should be noted that, because the conditional caution has been rescinded at the instance of the prosecution, the admission signed by the alleged offender as part of the conditional cautioning process will not be admissible as evidence in any subsequent prosecution (notwithstanding section 24(2) of the Criminal Justice Act 2003).
In considering the public interest stage, the prosecutor who re-reviews the case should take into account:
- the extent to which the accused person has already complied with the conditions of the caution;
- the delay involved in commencing proceedings;
- the views of the victim, if known; and
- any other relevant factors.
Prosecutors should also consider whether, in all the circumstances, a court would consider it unfair and wrong to allow the prosecution to revoke its previous decision and therefore stay the proceedings as an abuse of process (see further guidance below). Note, however, that in a case in which the evidential and public interest tests are otherwise met, it will be in only the most exceptional case, where the Prosecutor can say with a high degree of certainty that a court will rule that a prosecution is proved to be an abuse of its process, that a decision not to prosecute is likely to be valid (per Sweeny J. in Guest, paragraph 58).
Clearly, where the decision to authorise a conditional caution an offender is unlawful because it goes beyond the limits set by the statutory provisions or the Director's Guidance, there is no alternative but to set it aside. Conditional cautions which are prima facie lawful may also be set aside on review if it appears that no reasonable prosecutor, in possession of all the facts known at the time of the review, could reasonably have come to the decision to caution rather than prosecute.
Greater reserve must be exercised in relation to this second category of case. Although paragraph 10 of the Code for Crown Prosecutors recognises that there may occasionally be cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand, it also states that as a matter of principle people should be able to rely on decisions taken by the CPS. There is also the danger, recognised by the House of Lords in Jones v Whalley, that allowing prosecutions to proceed after the offender has agreed to be cautioned will undermine the whole cautioning regime (a principle which applies with equal force to conditional cautions).
The issue in Jones v Whalley was whether it was an abuse of process for a private prosecutor to commence a prosecution against an offender who had accepted a caution from the police having been told (as was accepted, entirely erroneously) that this was a bar to further criminal proceedings. The House decided that it was an abuse of process on the 'narrow ground' that, in this particular case the offender had been told unequivocally by the police that if he accepted the caution he would not have to go before a criminal court. While this statement was probably not actually correct in law, the important consideration was the effect that the representation had had on the person accepting the caution in reliance upon it. Applying R v Croydon JJ, ex parte Dean  QB 769, the House found that it was clearly an abuse to allow a private prosecution in this particular case.
The Law Lords declined to give a definitive answer on the 'broader issue' of whether, irrespective of what may or may not have been said to a person who was cautioned, conditionally cautioned, reprimanded or warned, it could ever be anything other than an abuse of process for a court thereafter to allow a prosecution against him.
Prosecutors should nevertheless be aware of the decision of the Administrative Court in the case of R (on the application of H) v Guildford Youth Court (2008). In this case, the Administrative Court approved the approach of the Youth Court in staying a case involving the alleged unlawful infliction of grievous bodily harm as an abuse of process, where the 15 year old suspect had been told by the police (prior to CPS involvement) that they would be seeking to deal with the matter by the administering of a conditional caution.
This case did not appear to have been contested by the Crown in the Administrative Court and no reference appears to have been made to the earlier authorities on the issue referred to elsewhere in this minute. Accordingly, the approach of the House of Lords in Jones v Whalley and the Divisional Court in Guest should still be followed, and that a decision to prosecute following an earlier decision to divert will not necessarily amount to an abuse of process.
In order to minimise the risk of a renewed prosecution being stayed as an abuse of the process, local arrangements should be put in place to ensure that when a conditional caution is administered, the person being cautioned is informed in writing that the caution may not preclude a subsequent prosecution and that it will not preclude a civil action by an aggrieved party (see Hayter v L  1 WLR 854; Jones v Whalley, paragraphs 36 and 44).
The Director's Guidance on Conditional Cautioning and the Code of Practice for Conditional Cautions will be amended to reflect this approach and form MG14 will be updated to include the above indication to any prospective recipient of a conditional caution.
Where re-review discloses that the original decision to authorise a conditional caution was wrong, immediate action should be taken to rescind the decision.
Where re-review leads to the decision being rescinded and the conditional caution being set aside in favour of prosecution, this fact should be specifically stated in the CPS response to any originating summons for judicial review. The single judge at the Divisional Court is likely to take into account the steps that have been taken to undo the effect of the erroneous decision when deciding whether permission should be granted for the judicial review to be heard.
Although the guidance contained in this minute is directed mainly at conditional cautioning, the same principles and procedures should be applied in cases where a prosecutor has advised the police to issue a simple caution. The giving of such advice can occur where the police wish to give a simple caution to a person who is alleged to have committed an indictable only offence or in any other case which is referred to the CPS for a charging decision but where the prosecutor believes the offender should be diverted from prosecution by way of a simple caution instead.
Except in these circumstances however, the decision to issue a simple caution can normally be taken by the police without reference to the CPS (see paragraph 9.1 of the Director's Guidance on Charging). Where such a decision is taken in error, the responsibility for correcting the error rests with the police, not the CPS. Any subsequent prosecution will be subject to the same considerations regarding a possible abuse of process as set out above.