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The Director's Guidance on Adult Conditional Cautions

Guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984

7th Edition: April 2013

  1. Introduction
  2. Authorised persons
  3. Conditional Caution in offences involving domestic abuse or hate crime
  4. Summary offences and either way cases
  5. Offences committed by Relevant Foreign Offenders
  6. Indictable only offences to be referred to prosecutors
  7. Identification of cases in which a Conditional Caution is permissible
  8. Making prompt decisions
  9. Prosecutor’s post charge review – cases that should have been considered for a Conditional Caution
  10. Deciding whether a Conditional Caution is a suitable response - Requirement for sufficient evidence to charge the offender
  11. Deciding whether a Conditional Caution is a suitable response – Assessing the Public Interest
  12. Assessing Seriousness
  13. Considering the totality of offending and history of offending
  14. Exceptional circumstances where a Conditional Caution may be appropriate for an offence likely to attract a high level community order or a custodial sentence
  15. The decision to offer a Conditional Caution
  16. Practical arrangements for the referral of cases
  17. Commencement

Annex A: Either Way offences

Annex B: Guidance for the selection of appropriate conditions

Annex C: Prosecutors authority to give a adult conditional caution

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1. Introduction

1.1 In determining whether to offer a Conditional Caution in any case authorised persons and relevant prosecutors must follow the Code of Practice for Adult Conditional Cautions 2013 and comply with this Guidance.

1.2 This Guidance assists Authorised Persons and Relevant Prosecutors (the decision makers) to apply the Code of Practice on Adult Conditional Cautions in deciding how an offender should be dealt with when it is determined that:

  • there is sufficient evidence to charge an offender with an offence; and
  • the public interest in the case may be met by a caution with suitable conditions providing reparation to the victim or community; which may modify offending behaviour; ensure the departure and non return of a foreign offender from the UK; or provide an appropriate penalty; and
  • In all the circumstances of the case a Conditional Caution appears appropriate.

1.3 This Guidance specifies:

  • the offences and circumstances when a Conditional Caution may be considered and whether the decision to offer one may be made by a police officer or is to be referred to a prosecutor.
  • the practical arrangements for recording decisions in cases, consulting with the UK Border Agency, making referrals to prosecutors and for dealing with non-compliance with any conditions.

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2. Authorised persons

2.1 An authorised person (for the purpose of administering a Conditional Caution) is a police officer not below the rank of Sergeant or any person specifically authorised to do so by the Director of Public Prosecutions.

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3. Conditional Caution in offences involving domestic abuse or hate crime

3.1 Generally, offences involving domestic abuse or hate crime will not be suitable for Conditional Caution. However, there are rare cases when, because of the nature of the crime or the circumstances of the offender, exceptionally a Conditional Caution could be considered. Any such case considered by the police as suitable for a Conditional Caution must be referred to a prosecutor.

3.2 If a Conditional Caution is being considered in an offence involving domestic abuse or hate crime then the prosecutor must refer a domestic abuse case to the HQ Violence Against Women Strategy Manager and a hate crime case to HQ Hate Crime team for advice. Otherwise a Conditional Caution may be considered in any case in the circumstances set out below.

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4. Summary offences and either way cases

4.1 An authorised person may offer a Conditional Caution for any summary only offence and any either way offence. For serious either way offences, a Conditional Caution may only be offered if the Foreign National Offender provisions apply or in exceptional circumstances as set out below. The decision that exceptional circumstances exist in any case may only be made by a police officer not below the rank of Inspector.

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5. Offences committed by Relevant Foreign Offenders

5.1 The Code of Practice makes specific provision for offences committed by Foreign Offenders where a Conditional Caution is proposed to facilitate the removal of the offender from the jurisdiction and ensure non return. In such cases the greater public interest is in removal from the jurisdiction and the Code permits consideration in any case where the decision maker considers that the sentence likely to be imposed by the court for the offence concerned will not exceed 2 years imprisonment. Further guidance is provided below on how to assess that. The authorised person or prosecutor must record the reasons for reaching this conclusion in any case.

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6. Indictable only offences to be referred to prosecutors

6.1 As such offences will generally attract significant custodial sentences on conviction the maintenance of public confidence in the Justice System will ordinarily require such cases to be dealt with at court. Any indictable only case considered by the police as suitable for a Conditional Caution must be referred to a prosecutor.

6.2 Unless the foreign offender conditions are to be offered only in the most exceptional circumstances will a Conditional Caution be an appropriate way of dealing with such a case. The decision to authorise a Conditional Caution in any Indictable Only case must be approved by a Deputy Chief Crown Prosecutor.

6.3 Before considering referring any indictable only offence to a prosecutor, authorised persons must first determine that exceptional circumstances as set out below are present in the case or that the foreign offender conditions are appropriate.

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7. Identification of cases in which a Conditional Caution is permissible

7.1 Police and prosecutors should ensure that a Conditional Caution is considered in any case for which it is permitted and provides an appropriate outcome for the victim, community and offender.

7.2 Where a Conditional Caution with suitable conditions may provide reparation to the victim or community; be effective in modifying offending behaviour; facilitate removal from the jurisdiction and ensure non return; or provide an appropriate penalty, the offender should not be charged unless it is determined that the case is too serious for a conditional caution to be appropriate.

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8. Making prompt decisions

8.1 Wherever possible, the decision to administer a Conditional Caution should be made as early as possible and while the offender is still in custody. If, for any reason, this is not possible, the offender (including a foreign national) may be released on bail, with or without conditions (under section 37(7) PACE) for a short period unless there are operational reasons or other circumstances relating to the victim or offender justifying a longer period, or where further information is required relating to the consideration of any specific condition.

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9. Prosecutor’s post charge review – cases that should have been considered for a Conditional Caution

9.1 Where an offender is charged with an offence, but it appears upon review by a prosecutor that a Conditional Caution is more appropriate, the reviewing prosecutor should direct an authorised person to offer a Conditional Caution. This includes any case where authorised persons ordinarily make that decision. The current prosecution should be adjourned whilst this action is taken. The authorised person shall then offer a caution with conditions as specified by the prosecutor. If it proves then not to be possible to administer the caution an alternative out of court disposal may not be offered and the prosecution must continue.

9.2 In the case of foreign offenders this may include cases where an asylum or human rights claim has been withdrawn or resolved after charge.

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10. Deciding whether a Conditional Caution is a suitable response - Requirement for sufficient evidence to charge the offender

10.1 Before a Conditional Caution can be considered, there must be sufficient evidence available to provide a realistic prospect of conviction in accordance with the Full Code Test set out in the Code for Crown Prosecutors.

10.2 In making this assessment, an authorised person may offer a Conditional Caution where;

  • The suspect has made a clear and reliable admission to the offence and has said nothing that could be used as a defence, or
  • The suspect has made no admission but has not denied the offence or otherwise indicated it will be contested and the commission of the offence and the identification of the offender can be established by reliable evidence or the suspect can be seen clearly committing the offence on a good quality visual recording.

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11. Deciding whether a Conditional Caution is a suitable response – Assessing the Public Interest

11.1 Once the evidential test is met, the decision maker must then be satisfied that the public interest can best be served by the offender complying with suitable conditions aimed at reparation; rehabilitation; removal from the UK and ensuring no return for a period; or punishment, taking into account the interests of the victim, the community, and/or needs of the offender. They must also be satisfied that a prosecution will continue to be necessary, and could go ahead, should the offer of a Conditional Caution be declined or the offender does not complete the conditions.

11.2 In determining whether a Conditional Caution is appropriate to the circumstances of an offence decision makers must assess the seriousness of the case to ensure that this out of court disposal provides an appropriate and proportionate response to the offending behaviour and meets the justice of the case.

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12. Assessing Seriousness

12.1 An assessment of the seriousness of the offence is the starting point for considering whether a Conditional Caution may be appropriate. The more serious the offence, the less likely a Conditional Caution will be appropriate. Wherever the circumstances of an offence indicate that an immediate custodial sentence or high level community order is the appropriate sentence, a Conditional Caution should not be offered unless the specific provisions concerning foreign nationals apply or the exceptional circumstances set out below are met. The Magistrates’ Court Sentencing Guidelines provides a sentencing starting point for a range of offences at high level community order or period of imprisonment. Those specific either way offences are set out in Annex A.

12.2 The seriousness of the offence and the range of penalties likely to be imposed must be carefully considered in every case taking into account the Magistrates’ Court Sentencing Guidelines. Cases routinely dealt with at the crown court (specified in the Guidelines and set out in Annex A) or likely to be considered for a high level community order or period of imprisonment should generally proceed to court.

12.3 Indictable only offences must be referred to prosecutors to determine whether a Conditional Caution is appropriate, including where foreign offender conditions may be suitable. A Conditional Caution will only be appropriate for an indictable only offence in the most exceptional circumstances. In considering such cases prosecutors will assess the factors referred to below and make a review record of the exceptional circumstances found.

12.4 Police decision makers will also need to consider and apply the ACPO gravity factors matrix when considering whether to issue a Conditional Caution.

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13. Considering the totality of offending and history of offending

13.1 In assessing the seriousness of the offence under consideration and determining whether the case should proceed to court or is suitable for a Conditional Caution the decision maker should also take into account the totality of any current offending and any history of previous convictions and cautions particularly any which are recent or of a similar nature. However a record of previous offending should not rule out the possibility of a Conditional Caution especially where there have been no similar offences during the last two years or where it appears that the Conditional Caution is likely to change the pattern of offending behaviour

13.2 It is unlikely that domestic abuse in intimate (whether current or previous) partner cases would ever be appropriate for conditional caution. This is because of the repetitive pattern of domestic abuse and the risk experienced by victims. However, where there are no elements of controlling and coercive behaviour, and where there is no pattern of abuse or repetitive behaviour there may be rare occasions in domestic abuse cases not involving intimate partners where a conditional caution could be considered. The specific Domestic Abuse Guidelines for Prosecutors may be helpful when considering whether this is an exceptional case.

13.3 It is unlikely that hate crime offences would be appropriate for conditional cautions. This is because of the serious nature of these offences and the targeting of an individual because of their personal characteristics, or perceived personal characteristics. The devastating impact of hate crimes on, not only the individual but also on communities and wider society demands a robust response and the opportunity to apply for a sentence uplift to send the clear message that those who target people because of their race, religion, sexual orientation, transgender identity or disability should expect to receive a higher sentence. However there may be rare occasions, for example a young person of good character, which may merit the consideration of a conditional caution. The legal guidance on Hate Crime Prosecutions may be helpful when considering whether this is an exceptional case.

13.4 In such cases prosecutors should ensure that they have fully considered the risk assessment provided by the police, the history of the relationship and the circumstances of the offence before seeking additional advice from the HQ Violence Against Women Strategy Manager or HQ Hate Crime team.

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14. Exceptional circumstances where a Conditional Caution may be appropriate for an offence likely to attract a high level community order or a custodial sentence

14.1 The decision to offer a Conditional Caution for an indictable only offence, an either way offence routinely dealt with at the crown court or likely to attract a high level community order or sentence of imprisonment, may only be taken in exceptional circumstances where the decision maker is able to conclude that the public interest does not require the immediate prosecution of the offender and that if it took place a court would not impose a period of imprisonment or high level community order.

14.2 In reaching that conclusion, the decision maker must carefully assess the public interest in the case and the likely sentence informed by the appropriate sentencing guidelines and authorities. The decision maker must record (on an MG6) the reason for concluding that exceptional circumstances are met in the case. Authorised persons should only refer indictable only cases to prosecutors where they are able to clearly specify the exceptional circumstances present in the case in accordance with this guidance.

14.3 In assessing whether exceptional circumstances exist in a case, the following factors must be taken into account:

  • The extent of culpability and/or harm caused
  • The degree of intention or the foreseeability of any resultant harm
  • Any significant aggravating factors
  • Any significant mitigating factors
  • The lack of any recent similar previous convictions or cautions
  • Any other factors relating the offender or commission of the offence likely to have a significant impact on sentence
  • The overall justice of the case and whether the circumstances require it to be dealt with in open court
  • The range of sentences appropriate to the circumstances of the case.

14.4 Any aggravating circumstances, including the methodology employed by the offender (for example, any breach of trust or advantage taken of the vulnerable or young) may all increase the seriousness of the offence to the point where the case should proceed to court.

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15. The decision to offer a Conditional Caution

15.1 The decision makers’ review

15.1.1 A Conditional Caution may be appropriate where the decision maker believes that while the public interest requires a prosecution in the first instance the interests of the victim, community or offender are better served by the offender complying with suitable conditions aimed at reparation, rehabilitation, punishment or in the case of a foreign national offender removal from the jurisdiction.

15.1.2 It must be determined that a Conditional Caution is likely to be effective and should be offered. Where the offender shows genuine remorse, indicates a willingness to be cautioned and comply with the proposed conditions a Conditional Caution may be considered. A Conditional Caution will not be appropriate for an offender who fails to accept responsibility at the time the caution is administered.

15.1.3 Where the offender indicates that they do not wish to accept the caution or any of the conditions at that stage, the case will be considered again by the decision maker who will determine whether alternative conditions are appropriate or whether the case should proceed to prosecution. Where it proves not to be possible to give the caution because it is not accepted or reasonable conditions are declined the offender should be charged with the offence. In such circumstances an alternative out of court disposal may not be offered.

15.2 Foreign Offender Conditions

15.2.1 Such conditions may only be offered to a foreign offender having no leave to enter or remain in the UK and in respect of whom there is power to enforce departure. They cannot be offered where the offender makes or has an outstanding asylum or Human rights claim to remain in the UK or where the offender admits to committing a document or identity fraud offence in order to make a claim for asylum or where the offender may be a trafficked victim. This does not, however, prevent foreign offender conditions from being offered where the asylum or human rights claim has been refused (and any appeal against that refusal has been finally determined), where the relevant foreign offender voluntarily withdraws the claim, or where the relevant foreign offender’s grant of asylum has been revoked or not renewed by virtue of paragraph 339A of the Immigration Rules. The police must consult the UK Border Agency who will confirm the offender’s status and that of any dependents and whether the individual can be removed from the UK. This information must be available to the decision maker at the time the Conditional Caution is offered.

15.2.2 Foreign offender conditions may be offered in a case that would ordinarily result in the imposition of imprisonment following conviction. However it may only be offered where, in all the circumstances of the case, the decision maker assesses that the sentence likely to be imposed for the offence under consideration would be less than two years imprisonment. The decision maker must make a record of the reason for reaching that conclusion.

15.2.3 The purpose of the Conditional Caution will be to bring about the departure of the offender from the UK and to ensure that return does not occur for a specified period of time. Both of these objects should be set as conditions in every case. They should only be used where it will be practicable to remove the person within a reasonable period of time. The offender may be required to:

  • Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal
  • Obtain or assist authorities in obtaining a valid national travel document, or
  • Comply with removal directions and any lawful directions given to effect departure
  • Not to return to the UK within a specified period of time, normally 5 years as set out in the Immigration Rules

15.2.4 Priority should be given to conditions to facilitate the early removal of the offender from the UK; however any other rehabilitative, reparative, or punitive conditions appropriate to the circumstances of the case may also be included provided the circumstances of the offender and any detention under immigration powers permit completion. Other conditions should not be included if they are likely to delay the removal or may not be completed prior to the likely removal date.

15.2.5 The normal period not to return should be 5 years. However there may be indictable only cases involving a foreign offender where a prosecutor considers that exceptional circumstances exist permitting the offer of a Conditional Caution including a condition preventing return for a period of 10 years instead.

15.3 Offering a financial penalty condition

15.3.1 A financial penalty can only be offered in accordance with the scales set out in Annex B to this Guidance but only for those offences contained in an Order made under section 23A of the Act. Ordinarily the standard penalty should be offered. Where, however, there is substantial mitigation for the commission of the offence or the offender is in receipt of state benefit (such as income support or job seeker’s allowance) as their main or only source of income, a penalty within the mitigated range may be offered instead.

15.3.2 When attaching a financial penalty condition, the amount of the penalty, the designated officer for the local justice area to whom the penalty must be paid, and the address of that officer for payment must be set out in the documentation to be handed to the offender at the time of the administration of the Conditional Caution.

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16. Practical arrangements for the referral of cases

16.1 Consultation with UK Border Agency

16.1.1 As soon as it appears that a foreign offender has been detained the custody officer should contact UKBA to establish whether the individual is classified as a relevant foreign offender. Once confirmed UKBA will provide any immigration papers required and will liaise over the appropriate conditions to be offered.

16.2 Referral of cases to prosecutors

16.2.1 Where an authorised person considers that, exceptionally, an indictable only offence may be appropriate for a condition caution the case must be referred to a prosecutor. This will be done by submitting the case to the Head of the Crown Court Unit for the relevant CPS Area. The CPS Area will provide a response within 7 days. If, for any reason, it proves not to be possible to administer the caution the offender should be charged with the offence and may not be offered any other out of court disposal.

16.3 Requirements for an MG5

16.3.1 In any case which is to be referred to a Crown Prosecutor the police will prepare an MG5 report and will attach to it the victim or losers witness statement and any other evidential material necessary to establish whether the Full Code Test is met. An MG6 must be provided setting out the views of any victim and (where appropriate) the Inspectors assessment of the exceptional circumstances considered by the police to be present in the case justifying the offer of a Conditional Caution. Confirmation by the UKBA as to the status and ability to remove from the UK of any foreign offender will also be required where the removal and non return conditions are to be considered.

16.4 Contents of the MG5 Report

16.4.1 The MG5 report should set out the circumstances of the offence, summarising any admissions in interview, providing the details of any victims and any previous convictions or cautions applicable to the offender. An MG6 should set out any views of the victim as to any restorative or reparative conditions and details of any compensation to be considered. The report should set out the proposed conditions to be included and confirm that the offender is willing to admit the offence and be cautioned.

16.5 Police decision making - recording the decision

16.5.1 The authorised person must make a brief record of the reasons why a Conditional Caution was or was not considered appropriate in any case and why any particular conditions were selected. The reasons should specify whether reparative, rehabilitative or punitive objectives were sought to be achieved. This may be recorded on an MG6 or a case review document.

16.5.2 As any refusal to be conditionally cautioned or failure to complete conditions may lead to subsequent prosecution authorised persons should ensure that details of the evidential basis for the decision are recorded including sufficient witnesses details to enable an appropriate file to be provided to the prosecutor. This may be done by completion of an MG5 or a case review document.

16.6 Authorising the Conditional Caution

16.6.1 Once satisfied that the Conditional Caution and the proposed conditions are an appropriate and proportionate response to the offending behaviour, the decision maker will complete the Authority to Give a Conditional Caution which will be retained with the MG5 or case review document. A copy of the Authority to Give a Conditional Caution is attached at Annex C.

16.7 Dealing with non-compliance with Conditions

16.7.1 If following administration of the caution it becomes clear that the offender is not complying with any conditions the decision maker must determine whether there is any reasonable excuse for that non-compliance and if not what action is to be taken. In determining what action to take at that stage the decision maker may deem the caution as completed, vary conditions or prosecute for the original offence. An alternative form of out of court disposal may not be offered.

16.7.2 Where the original decision to offer the caution was made by an authorised person the authorised person may make that decision but if it is considered that charging is appropriate and the offence is one that cannot be charged by the police the case must be referred to a prosecutor to decide whether to charge. Where the decision to offer the Conditional Caution was made by a prosecutor the case must be referred back to a prosecutor.

16.7.3 Once a decision is made as to how the non compliance is to be dealt with the police with ensure that PNC is updated to record that.

16.8 Retention of papers to prosecute following non-compliance

16.8.1 Once a Conditional Caution has been authorised in any case, the MG5 (or any other record of the decision), the Inspectors finding as to any exceptional circumstances, the Authority to give a Conditional Caution and confirmed MG14 will be retained by the police pending completion of the conditions. This material will be used in the event of a prosecution resulting from any non-compliance. Any information concerning the personal details of victims and their views must not be included in any information provided to the offender or their legal representative. In the event of a prosecution for non-compliance the police will only be requested to provide witness statements following a not guilty plea and case management hearing where the issues in dispute in the case have been identified.

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17. Commencement

17.1 This Guidance will come into effect in England and Wales on 8th April 2013.

Keir Starmer QC
Director of Public Prosecutions

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