Cautions for rapists? Really?

Chris_Grayling_picGetty_678133903

Lord Chancellor and Secretary of State for Justice Chris Grayling demonstrates yet further that he has no understanding of the justice system or the criminal law.

On Tuesday in Parliament, he said:

“For example, we would all view a caution for rape as completely unacceptable, but in some cases where the victim is absolutely unwilling to give evidence it may be the only way to get something on the record about an offender. We must be careful about this issue and try to get it right.”

Now aside from the obvious confused message that whilst cautions are unacceptable, the MoJ are potentially in favour of them in such situations, Grayling’s proposition is deeply concerning.

He is advocating cautions in cases where a rape complaint has been made, but where the complainant does not want to give evidence. Let’s look at the benefits.

Pros

First off, the defendant ‘has his card marked’. The obvious advantage of this is that there is a record that a) there was a complaint made against him and b) he admitted the allegation. Therefore, if in the future there is another complaint made, his details are known to the police. There are obvious advantages to that.

Second, the defendant will be subject to the notification requirements (2 years if aged 18+, 12 months if under 18). There are obvious advantages to this also –a defendant who accepts the allegation is then subject to notification (which offers a degree of ‘protection’ to the public) where he would otherwise not be so subject.

Third, from a statistics perspective, the caution, although not qualifying as a conviction, would probably be included in crime detection rates.

Fourthly, again whilst not qualifying as a conviction, the caution could be used in subsequent criminal proceedings.

Cons

So what are the drawbacks? Well first and foremost is that there is a serious allegation which is not being tested. The police presumably dangle the caution in front of the defendant and with a bit of persuasion (‘you’re looking at 5 years +’, ‘a Crown Court trial is very stressful’, ‘your work, family and friends will hear all about it’) accepting a caution appears more appealing.

That causes (or should cause) you concern. These are serious allegations which are going untested. The defendant has the right to have the case against him proven (if he contests it) and should not be coerced into pleading guilty or accepting a caution because the risk of going to trial on balance is not worth it.

Secondly, as Grayling seems to accept, it is unacceptable to offer a caution for an allegation of rape. One may say that for a child committing rape against a child, it may be appropriate, however, Grayling appears to be talking more broadly and it appears to me that rape is not an offence for which a caution should be offered. The offence is a serious one and as suggested in the press yesterday, sends the wrong message out to victims and the wider public.

Last year, there were 19 offenders given cautions for rape. The MoJ said that most of these were under 18s. Whilst 19 is a small number in comparison to the number of convictions for rape each year, those are 19 cases in which the evidence was not tested and we are unclear on the basis on which the conviction was offered and accepted.

The police are not supposed to caution until there has been an admission obtained. They are not supposed to offer the inducement of a caution to gain an admission however. Also, someone cannot be cautioned unless there is sufficient evidence to give rise to a realistic prospect of conviction and if it is clear that the complainant won’t co-operate, it is hard to see that the test would be satisfied. However, the police sometimes bend the rules on this.

Grayling

So what to make of Grayling? At the very least, I think he needs to think before he speaks. But perhaps that is the problem.

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6 thoughts on “Cautions for rapists? Really?

  1. Christopher

    In a past life it was my task to read the transcripts of interviews under caution and amongst other things indicate whether or not a full admission had been made. Suffice to say that interviewing officers’ perceptions of what amounted to a full admission more often than not differed from my own.
    And so it came to pass that the team of which I was a member were no longer required to consider caution-only cases.

    Reply
  2. Dan Bunting

    @Christopher – I can certainly confirm that that still happens… sometimes quite blatantly.

    Maybe I’m too cynical, but I don’t think that it’s a question of Grayling having no understanding of the law, I’m sure he has received advice and knows the position, but is more than happy to mislead to prove his point and get his agenda through.

    Reply
  3. Lyndon Harris Post author

    I don’t buy that personally, Dan. What is one of the best ways to ensure your longevity in politics? Deliver on what you promise.

    What is to be gained by him by ignoring evidence based advice? If he delivered on his promise to reduce offending, reduce the prison estate and reduce costs (all achievable in my opinion) then he would be remembered as one of the most successful Justice Secretaries.

    I think it far more likely he believes in what he is doing and doesnt truly understand.

    Reply
  4. Andrew

    If the complainant won’t, won’t, won’t go to court you either ask D to accept a caution or you let him get away with it.

    Reply
  5. Lyndon Harris Post author

    That is the problem though Andrew, because it is unclear whether there is even anything to get away with. Without the allegation being tested, the situation is far from clear. Remember, if the complainant states he or she did not consent, but the defendant reasonably believes he or she did consent, he is not guilty.

    Reply
  6. Pingback: Cautions – Adults | UK Criminal Law Blog

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