Judicial review of police cautions: an open goal?
Cautions used as alternatives to prosecuting low-level criminal offencesAn alternative to prosecuting low-level criminal offences is to offer the offender a ‘simple caution'. This is an increasingly used method by the police because it is a quick and cheap way of disposing of low-level offences, allowing the police to focus on more serious criminal investigations.
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Are cautions over used?However, recently there has been concern that cautions are over-used. Earlier in 2013, the Magistrates Association wrote to the Secretary of State for Justice, Chris Grayling, to highlight the concern that cautions had been given to sex offenders and violent criminals. Indeed, the power to issue cautions may well be a unique legal function in that it allows a branch of the executive to impose a criminal sanction without a judicial process.
How cautions are made, and their effects, are often not understood properly. These issues have been recently considered by High Court in two cases: Caetano v Commissioner of Police of the Metropolis  EWHC 375 (Admin) and R (Stratton) v Thames Valley Police  EWHC 1561 (Admin).
In simple terms, there are three elements that have to be satisfied before a caution will be issued: (1) the offender had to admit the offence; (2) the evidential and public interest test for prosecution had to be met; and (3) the consequences of acceptance of the caution had to be made clear so that the offender gave informed consent to the acceptance of a caution. These criteria are found in the Home Office Circular 016/2008, which has recently been replaced by the Ministry of Justice Guidance, Simple Cautions for Adult Offenders (April 2013).
(1) Admitting the offenceBoth the Circular and the Guidance state that a ‘clear and reliable admission' of guilt is required before a caution can be offered. However, it is sometimes unclear whether an individual has made a clear and reliable admission of guilt from the limited paperwork that is produced when a caution is issued - normally, there is just a transcript of an interview. This interview may have been conducted several years ago by a busy police officer who may be unable to recall exactly how the admission of guilt was made.
This creates a factual issue on which the court will have to make a ruling. However, the judicial review process is inapt to deal with this, given that the court rarely hears live evidence.
This problem was apparent in Stratton where the court had to order live evidence to resolve the issue. Having given evidence, the court remarked that the police officer ‘unsurprisingly...had only the faintest recollection about the case' (at ). The court then said ‘it is very difficult for us, many years after the event, to determine precisely what happened' (at ).
(2) The evidential and public interest testHaving obtained a clear and reliable admission, a police officer must then consider the two-stage test used by the Crown Prosecution Service (also known at the ‘Full Code Test'). Given the evidence of the admission, the focus for the police officer will be whether the public interest is served by a caution.
There is a lot of material to consider in relation to the public interest test. As was said in Caetano, ‘the documents are not always easy to follow or reconcile. They do not seem to make the task of a police officer who has to take practical decisions on the ground easy.' (at ).
These documents are: the Home Office Circular or Ministry of Justice Guidance (see above), the Code for Crown Prosecutors and the Association of Chief Police Officers (ACPO) Gravity Factors Matrix, as well as any subject specific guidance (for instance, there is CPS guidance on decisions to prosecute in domestic violence cases).
Although police officers have a wide margin of appreciation in this area (see R v Metropolitan Police Commissioner ex parte Thompson  1 WLR 1519) it is possible that the officer simply gets the test wrong. In Caetano, the officer had misunderstood the facts, which lead to him overstating the public interest that there would be in a prosecution. The court sympathised with the police officer, given the confusing guidance, but that on a proper understanding of the facts a prosecution would be have been inconceivable.
(3) Making clear the consequences of the cautionA caution is often considered to a ‘slap on the wrist'. In fact, it is acceptance of criminal conduct and will appear on an individual's criminal record - accordingly, it would be disclosed when a ‘CRB check' is made (this now is called a DBS check, after the Disclosure and Barring Service). This can cause problems if applying for many jobs, especially those that involve working with children or vulnerable adults, and if trying to travel to some countries (for instance, America).
The new Ministry of Justice Guidance is helpfully clear on this - paragraph 68 states exactly what must be explained and there is a form that must be signed to confirm that this has happened.
The difficulty is that before this Guidance was introduced in April 2013, the Home Office Circular did not provide for this standardised format to record what was explained (see Stratton at  - ).
As a result, for cautions administered pre-April 2013, it can be difficult to evidence that the impact of the caution was properly explained to the offender. This is a factual issue and can arise in old cases where the relevant police officer is unlikely to recall exactly what was said - as a result, it can be difficult for the police to defend challenges to cautions on this basis.
Conclusion: an open goal?
There is a potential open goal for claimants to challenge cautions because it is possible to judicially review cautions that were administered many years ago. This is a result of the challenge being directed to the initial refusal to expunge a caution, and so the 3-month time limit in CPR 54.5 is triggered at this point. As a consequence, the police officer's recollection of the facts of historic cases likely to be, at best, limited. This makes such challenges difficult to defend - and provides a claimant with a good chance of success.
As noted in Stratton at  - , some of these problems will be reduced going forward because of the new Ministry of Justice Guidance and the decision in T v Chief Constable of Greater Manchester Police  EWCA Civ 25 may mean that some very old and minor cautions no longer appear on certificates. But for many historic cautions, the problem will remain.