The practice of police cautions are in the news at the moment, as Charles Saatchi knows only too well. There has been a lot of disquiet (most of it unfounded) as to whether the police are using cautions too much. Always willing to jump on a bandwagon, the Ministry of Justice announced in April 2013 a review of the use of cautions.
There is the additional ‘safeguard’ of involvement by magistrates. Contrary to some news reports, individual magistrates won’t be sitting in police stations, and they won’t be getting involved in any decisions as to whether or not a caution should be offered. What they will be doing is retrospectively reviewing the use of cautions in different cases “to enhance consistency, transparency, and public confidence“.
Gross LJ has issued guidance to magistrates who are involved with this exercise. It seems that the results of the supervision will be collected and published. We will come back to this as more information comes out.
Reading the guidance, a couple of things struck me from a legal point of view:
- para 7 states “Consideration will … be undertaken by a broad cross‐section of criminal justice practitioners,such as magistrates, Probation Service, Crown Prosecution Service, and YouthOffending Teams” – it is a shame that having mentioned all those people there wasn’t an additional reference to defence practitioners, who would have valuable input as to how cautioning works ‘at the coalface’. It is not clear if the defence are being invited to play in the particular exercise.
- para 15 – “On the rare occasion where a magistrate may have considered, as part of scrutinyarrangements, a matter that is subsequently to come before themin court;for example,
non‐compliance with an out of court disposal,the magistrate should recuse themselves
fromthe case. (Different matters involving the same defendant do not create a similar
requirement for recusal)”.
It has always been the law that magistrates should not know of any previous convictions of a defendant. It still is the law, despite the views of many magistrates and prosecutors to the contrary. As I read it, the magistrates will be dealing with cases anonymously, so this may not be a factor, but it is to be hoped that this does not lead to any watering down of this principle.