The Home Office states that ‘out-of-court disposals, such as cautions, conditional cautions and penalty notices for disorder (PNDs), are intended for dealing with low-level, often first-time offending, where prosecution would not be in the public interest.’ Whilst in principle, that description may sound an appropriate, in practice, the implementation has been very different.
In 2009, 450,000 cases were dealt with through penalty notices and cautions. In 2011, the Lord Chief Justice, Lord Judge, expressed his concern at the prevalence of summary justice; punishments handed out by police officers instead of the courts have risen sharply. In 2008 there were 567,000 out-of-court disposals, representing an increase of 135% on 2003. In April 2011, the Council of Circuit Judges warned that “handing out fines for ‘truly criminal behaviour’ gave the impression it is not significant, [resulting in] offenders [escaping] punishment while the public is left in the dark”.
The problems can be broadly split into three; inappropriate use where a prosecution is more suitable, use where an offence may not have been committed, and use to enhance statistics.
The former is the most commonly cited problem:
In 2008, there were 36 cautions given for rape. Latest figures show this has fallen to 18 in 2011. Whilst the public can be reassured that a caution for a sexual offence does trigger the notification requirements (commonly called the sex offender’s register), many will feel that such a disposal for serious offences are wholly inappropriate.
In the absence of proper legal advice some may accept a caution where no offence has been committed. This may be because of the existence of a defence which is unknown to the ‘offender’.
The third issue is that the system is open to abuse. Where police forces see the opportunity to bump up their statistics, cautions are administered inappropriately. For an offence of robbery, it would be possible to offer two cautions, one for theft and one for assault. This would create the impression that two offences had been brought to justice as opposed to one. This is clearly wrong.
The MoJ has announced a review into the use of cautions.
In a statement, the MoJ said it would examine:
- Existing guidance and practice relating to cautions
- Whether there are offences where use of cautions would be “inappropriate” – and if so, what should be used instead
- Reasons why multiple cautions are given to some criminals
- The difference in their use by different police forces – and whether increased scrutiny is needed to ensure they are used consistently
- The impact on individuals of accepting a caution, including how it might affect future employment
The MoJ said it was working with the Home Office and Attorney General’s Office, and the review would closely involve the police, Crown Prosecution Service, victims’ organisations, the judiciary and the legal community.
The review will report back to ministers by the end of May.