PROCEDURE Conditional Cautioning. Number: F 0103 Date Published: 23 August 2016

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1 1.0 Summary of Changes This procedure has been updated on its review as follows: Throughout the document Authorised Officer has been added before mention of Custody Officer; A new appendix D has been added; New sections Restorative Justice, Reparative Condition, Victim Awareness Course (VAC) and Alcohol Awareness Course (AAC) have been added; Section 3.8 has been expanded; Section 3.9 has been updated to include information on the new sections above; The document has been updated throughout to include Athena. 2.0 What this Procedure is about From the 8 th April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO) came into effect, giving the police and Crown Prosecution Service (CPS) an option to use a conditional caution as a means of case disposal as an alternative to a charge. This has the effect of repealing all previous guidance and statues concerning conditional cautions. This procedure should be read in conjunction with: The code of practice for adult conditional cautions (Appendix A); The Directors Guidance on conditional cautioning 7 th edition 2013 (Appendix B); List of Referral agencies (Appendix C). LAPSO determines that there is no requirement for the police to refer a case to the CPS before issuing a conditional caution, with the exception of indictable only offences. The act allows the police to issue a conditional caution for any summary or either way offence without deferral to CPS for a decision. Domestic Abuse and Hate Crime offences are excluded from the ADULT Conditional Cautioning criteria. Essex Police do not have all the conditions available as referred to in codes of practice shown at Appendix A and B. Officers should only refer to section of this procedure when considering options for applying a conditional caution. Conditional cautioning is a statutory disposal for offenders, for the police to use as an alternative to charge. It can be used where the public interest would be better served by offenders carrying out specific conditions attached to a caution rather than being taken to court. Page 1 of 15

2 A conditional caution is available for offenders, whose offending merits prosecution, but they might only receive a low level penalty in the Court, for example; a fine, compensation, conditional discharge or low level community penalty. If given a conditional caution, an offender will agree to comply with conditions aimed at addressing their behaviour or making good the harm that they have caused to a victim. The aims of the conditional cautioning scheme are to: Increase public confidence through resolving cases quickly and appropriately; Reduce crime by tackling the behaviour of the offender and dealing with offending before it can escalate; Deliver justice more effectively on behalf of victims; Reduce Court costs and free up Court time. Compliance with this procedure and any governing policy is mandatory. 3.0 Detail the Procedure 3.1 Qualifying Criteria The following criteria must be satisfied before a conditional caution can be given. It is important that before a conditional caution is offered it is deemed to be appropriate, proportionate and achievable, taking into account the level of offending, the recidivist history of the offender, the views of the victim and the likelihood of the conditions being fulfilled: There must be evidence that the offender has committed the offence; There must be sufficient evidence to satisfy the Full Code Test; If an offender is not interviewed, or makes no admission in interview, but does not deny the offence, a conditional caution may still be offered if upon review, there is a realistic prospect of conviction in the case. Where an offender denies the offence in interview, or raises a defence, it will not be appropriate to offer a conditional caution; The offender is not required to make an admission before the police determine whether a conditional caution is appropriate. However, the offender must admit the offence at the time the caution is administered; The offence is deemed appropriate in accordance with any ACPO gravity factor matrix published; The offender must sign the MG14 containing details of the offence, the admission that the offender committed the offence, consent to a conditional caution being given and detailing conditions of the caution; The Authorising Officer/Custody Officer considers that suitable conditions may: o Provide reparation to the victim or community, or o Be effective in modifying offending behaviour. Page 2 of 15

3 3.2 Disqualifying Criteria A conditional caution will not be considered suitable where: The offence is one of Hate Crime or Domestic Abuse and the offender is an adult; The offence forms part of a pattern of offending; A second conditional caution will not generally be given for the same or similar offences unless in an exceptional case or more than two years have passed since the previous offence was committed; The offender was on bail at the time the offence was alleged to have been committed; The Authorising Officer/Custody Officer believes the use of the conditional caution is unlikely to reduce the likelihood of re-offending having considered: o Any previous convictions including their date, nature and frequency; o The offender s previous response to court orders, including bail; o Any outstanding court fines or payments; o The offender is in breach of a court order; o The offender is subject to recall to prison; o The offender denies the offence or puts forward a full or partial defence. Where a case may appear to fit the conditional cautioning criteria, and it was decided not to issue one, the supporting reasons must be explained on the MG5 when submitting the file post-charge. 3.3 Previous Convictions The existence of previous convictions is not necessarily a bar to a conditional caution: Convictions or cautions greater than 5 years old should be disregarded; Dissimilar offences less than 5 years old should be disregarded; Similar offences less than 5 years old consider whether the conditions reduce the likelihood of re-offending or break the offending pattern. 3.4 Multiple Offences It is possible to administer a conditional caution for more than one offence if the offences are related or similar. The admission to a number of offences over a period of time (systematic offending), will render the case overall too serious to consider a conditional caution and would not attract a lower level penalty from the Courts. The criteria for the use of a conditional caution must apply to each offence. Page 3 of 15

4 3.5 Applying the Conditional Caution Before considering the application of a criminal caution the Investigating Officer must: Pursue all reasonable lines of enquiry; Have obtained statements from all key witnesses irrespective of whether they support or undermine any prosecution case; Obtained an invoice or estimate detailing the amount of compensation required; Ascertain the victim s views regarding disposal of the matter by means of a Conditional Caution. The victim s views must be recorded on the MG5; Obtained an account from the offender; For compensation for personal injury or for a punitive financial penalty, refer to the table at Appendix D. A referral must then be made to the Authorising Officer/Custody Officer for consideration as to whether in all the circumstances the matter is suitable for a conditional caution. The Authorising Officer/Custody Officer must ensure: All qualifying criteria set out above have been met; None of the disqualifying criteria are applicable. If they are, the Custody Officer should refuse the conditional caution informing the Investigating Officer to note the disqualifying criteria within the case papers; The offender is likely to agree to a conditional caution; The views of the victim are known Time Limits for Completion of a Conditional Caution All conditions must be capable of being completed within 16 weeks where it is a summary only offence. A period of longer than 16 weeks may be suitable for an either way offence but must not exceed longer than 20 weeks. In practice it is expected that the time limits will be substantially shorter than the above for the vast majority of cases. For summary only cases the statutory time limit to begin proceedings by way of charge, summons or postal requisition is six months from the date when the offence was committed. 3.6 The Role of the Crown Prosecution Service Although the authority to issue a conditional caution is now vested in the police, the CPS also has a role to play in the decision making process in the following circumstances: All indictable only offences MUST be referred to a prosecutor to authorise a conditional caution; Page 4 of 15

5 Where an offender has been charged and the case is reviewed by a CPS lawyer, if it appears a conditional caution is more appropriate the police should be directed to issue one. If the condition of the caution is subsequently breached the case MUST be referred back to the authorising lawyer for further consideration; Pre-charge advice; the police can still consult a CPS lawyer to obtain advice as to whether a conditional caution is suitable, even in circumstances where the police are permitted to administer a conditional caution without reference to CPS. THIS SHOULD ONLY BE USED IN EXCEPTIONAL CIRCUMSTANCES; If the conditional caution was issued for an offence, which under the Director Generals guidance on statutory charging would ordinarily have meant the police would need to refer the case to CPS for authority to charge, if the caution has not been complied with and the police seek to prosecute the case MUST be referred to CPS for a charging decision. 3.7 Completion of the MG14 Care must be taken when drafting the conditions to ensure they are proportionate and achievable. They should be aimed at achieving the following objectives: Rehabilitative - addressing the offender s behaviour; Reparative - ensuring the offender makes good the harm caused either to a victim or the wider community; Restrictive - seeking to restrict the offender behaviour; Punitive imposing a Financial Penalty; Foreign National offender conditions - see below. Multiple conditions can be used, but the issue of proportionality must be considered. Restrictive conditions cannot be used on their own - they can only be imposed alongside a rehabilitative or reparative condition as they are intended to facilitate rehabilitation or ensure reparation. Punitive conditions can be used in conjunction with a compensation condition, but care must be taken to ensure the overall financial payment is affordable and proportionate. A compensation condition that will enable payment to the victim should take precedence. The police will NOT take possession of any payment in relation to a financial penalty. The same procedure will apply as to a compensation condition in that the payment will be made direct to HMCTS in one single payment (see Appendix D for the table of Punitive Fines). Page 5 of 15

6 3.7.1 Conditions to be Used Essex Police currently have limited rehabilitative and restrictive conditions in place. The drugs and alcohol agencies only cover certain geographical areas within the county. It is important to ensure that before a conditional caution is administered consideration is given to ensuring the offender has the means and capability to attend the appropriate agency venue and is reasonable to expect them to do so. For foreign national offenders where they have no leave to stay in the UK please look at F 0106 Procedure Foreign Offender Conditional Cautions for details on setting conditions. Before a drugs or alcohol assessment referral is given, the police should contact the relevant agency and book an initial assessment date and time. This will be shown on the MG14. For details of all referral agencies see Appendix C. The following conditions are available. To ensure consistency, the wording of the conditions must follow the format shown below: Restorative Justice To arrange for an offender to write a letter of apology, engage with mediation or a face to face meeting with the victim, set Restorative Justice as the condition and insert the exact task required: "I agree to engage with the Restorative Justice Facilitators to complete <task> by <date> for <name of victim>. (<task> includes tasks such as letter of apology or mediation) Payment of Compensation I agree to pay the sum of (amount) by (date) in compensation to HMCTS, Magistrates, (see Appendix C for address) to be held on behalf of (name of victim) Drugs Assessment Referral I agree to attend an initial assessment appointment at (place) on (date) at (time) and thereafter fully engage for the number of sessions as directed by the (name of referral agency) to be completed by (date 16 weeks from date of offence) Alcohol Assessment Referral I agree to attend an initial assessment appointment at (place) on (date) at (time) and thereafter fully engage for the number of sessions as directed by the (name of referral agency) to be completed by (date 16 weeks from date of offence). Page 6 of 15

7 Restrictive Condition I agree not to attend (specify location) from (date) to (date) inclusive. I agree not to contact (specify person) directly or indirectly from (date) to (date) inclusive Punitive Condition I agree to pay a financial penalty of (amount) to HMCTS (see Appendix C for address) by (date) Reparative Condition Currently CJ&OM are working on developing an official unpaid working condition where officers can set a maximum of 20 hours unpaid work via a referral to another agency for them to facilitate the reparation in the local area. This is still in its development stages. However if an officer is able to supervise a reparation to the community such as getting the offender to clean the mess they have made, if there is no health dangers or on victims property than such conditions can be set. I agree to complete <task> by <date> Victim Awareness Course (VAC) "I agree to attend and actively engage in the Victim Awareness Course by <date>. In agreeing to this I agree to pay Victim Support <cost> to attend. The cost to attend the VAC currently is 55. Payment and booking onto the course is dealt with by Victim Support Alcohol Awareness Course (AAC) Currently Southend Only "I agree to attend and actively engage in the Alcohol Awareness Course by <date>. This course is free to attend and all the arrangements once referral is received are dealt with by STaRS. 3.8 Administering the Conditional Caution The conditional caution may be administered in a police station, Court building, the offices of any prosecutor or any other suitable location consistent with achieving the appropriate impact on the offender. Page 7 of 15

8 The authorising officer is determined by the category of offences i.e. whether it is indictable, either way or summary only. The table below shows the requirement for each category and is always the lowest possible rank which could authorise (i.e. for summary only you require authority from an officer not below the rank of sergeant): Before giving the conditional caution the Authorising Officer shall: Ensure that the offender has the opportunity to receive free and independent legal advice; Inform the offender of the evidence against them and the decision made; Explain the conditional caution and the implications of accepting this, including any circumstance in which it may be disclosed; Explain the requirement for and consequences of making an admission to the offence, including the fact that the admission and the MG14 may be used in evidence should the case result in prosecution; Make it clear to the offender that an admission should never be made merely to receive a Conditional Caution; Explain that the offender may decide at any stage to withdraw from the conditional caution. Make it clear that if the offender does decide to withdraw he/she should inform the officer in the case as soon as possible. Tell the offender that the withdrawal will likely result in a decision to charge for the original and prosecuted at court. Warn the offender that any failure to comply with the conditions will be investigated. The police will consider the reasons and the circumstances of the case including the extent of any compliance to date, and may decide that the offender should be prosecuted for the original offence. Custody Officers should comply with the directions contained within the codes of practice when informing the offender of the impact and consequences of them receiving a conditional caution. Page 8 of 15

9 The offender should be requested to sign the bottom of the conditional caution form MG14, under the heading OFFENDER DECLARATION. The offender should be released without bail once the caution has been processed. The Magistrates Court will monitor the payment of any compensation and forward any monies received to the victim. They will also notify the CJU Finalisations once payment has been made. CJU Finalisations will also receive the confirmation of compliance from Victim Support for the VAC, STaRS for the AAC and Restorative Justice Hub (OPCC) for all restorative justice conditions referred to them. Officers will need to monitor restrictive conditions, reparation to the community and any local referrals made to agencies other than the ones listed above which the CJU teams will monitor. 3.9 The Role of the CJU Finalisations Upon authorising officer administering the Conditional Caution on Athena, CJU Finalisations team will receive a task to process new conditional caution. At this point the CJU will: Where the conditional caution involves the payment of compensation or a punitive penalty, fax or a copy of the MG14 together with the name and address of the victim to HMCTS (at their address as shown in Appendix C); Notify HMCS of any condition to pay compensation, together with the name, address and telephone number of the victim; For the Alcohol Awareness Course, check the OIC has completed the AAC1 referral form and if not request OIC to complete and upload onto Athena. Once obtained the AAC1 referral form, CJU will send it to STaRS; For the Victim Awareness Course, check the MG14 and populate a spreadsheet weekly to send to AA DriveTech who are the outsourced admin organisation dealing with referrals for the VAC; For a restorative justice activity, the MG14 along with the victims contact details to the Restorative Justice Hub; Forward a copy of the MG14 form to the relevant referral agency, co-ordinate the administration and notification processes when a conditional caution has been: o Administered; o Varied; o Extended; o Not complied with; o Completed. Ensure the PNC Bureau is notified of any changes to a conditional caution; Contact OICs to check whether there was compliance with any officer monitored conditions; Page 9 of 15

10 Where a prosecutor decides to prosecute as a result of non-compliance, confirm with the OIC that the original file has been submitted to CJU; Submit a monthly return of conditional cautions to the CJD Quality and Policy Development Manager and the Essex Police Crime Statistics Department Retention of Case Papers Once the conditional caution has been administered, the case papers will be stored electronically with the original file retained by the officer pending notification of completion of or non-compliance with the conditions. Once notification is received that the offender has successfully completed the conditions, the OIC will retrieve the case papers, update the Athena (if it is not part of the CJU monitored conditions) and arrange for the papers to be filed and retained in accordance with force policy and procedure. The record of the conditional caution will be held on PNC up to the 100 th birthday of the person receiving the conditional caution. This will be calculated from the date of birth provided by the person at the time the conditional caution was given Notification Process Where a person fails to comply with any of the conditions imposed, the police will consider whether criminal proceedings are to be instituted for the original offence. Failure to comply with a conditional caution is not in itself a criminal offence. Where the breach relates to rehabilitative or reparative conditions, the relevant agency will notify the CJU Finalisations of the non-compliance. CJU Finalisations will inform the OIC, who will, in turn, contact the offender to ascertain their reasons for failing to comply. Where the police or any other agency required to monitor compliance becomes aware that an offender is not complying with a condition, they should seek to obtain as much information of the non-compliance as possible, including giving the offender an opportunity to provide an explanation. The police or other agency monitoring compliance should then determine whether it would be appropriate to provide further guidance to the offender and allow the original conditions to be completed within the original time frame. If there has been non-compliance, the CJU Finalisations will raise a task back to the OIC to consider for prosecution. At this point the OIC should get Sergeants and CPS decision (CPS if it was an indictable only offence or one where CPS advice was sought originally) on whether to prosecute for the original offence. The OIC should present the reasons the offender has given for partial or full noncompliance of the conditions which had been set. The rationale behind the decision either to prosecute or not should be recorded on this prosecution task by the OIC. If the decision is to prosecute the evidence file will be forwarded to the relevant Criminal Justice Unit (CJU) with the reasons to prosecute clearly shown on the MG5. The CJU will then issue a Summons or Postal Requisition if appropriate. Page 10 of 15

11 Availability of Power of Arrest Section 24A of the Criminal Justice Act 2003 allows a constable to arrest any person whom he has reasonable grounds for believing has failed without reasonable excuse to comply with any conditions of a conditional caution. The section also provides a power to keep the person in police detention if it is necessary to do so for the purpose of investigating whether he has failed, without reasonable excuse to comply with any conditions attached to the conditional caution. The power of arrest should only be exercised where considered necessary. The necessity criteria in S24(4) and (5) PACE do not apply to arrests under S24A of the CJA 2003, although the criteria may provide useful indication as to whether an arrest could be considered necessary. The power of arrest is therefore most likely to be used where there has been a breach of a restrictive condition e.g. a member of the public has reported an offender being at a location at which their attendance is restricted by a conditional caution. Once arrested, detention may be authorised where it is necessary to investigate reasons for any non-compliance or to seek a charging decision from a prosecutor and formally charge an offender. Where the power of arrest has been exercised, the offender should only be detained for as long as is necessary to explore the reasons for any breach and/or to undertake any charging procedures. Where it is clear this cannot be achieved in a short period of time, the offender should be released on bail under S24A (2)(b) of the Act whilst the enquiry into the non-compliance and the decision whether to charge with the original offence is undertaken. When an offender is arrested, the Custody Officer must ascertain the details of noncompliance. If there is a reasonable excuse the offender should be released and the conditional caution allowed to continue. If there is no reasonable excuse, or the offender can no longer comply, the offender should be charged (subject to any restriction in 3.5.1) and in accordance with the DPPs Guidance on Charging which highlights what offences have to go to CPS for charging authority. A Custody Officer can extend, vary or deem that a condition has been completed where there has been non-compliance. Page 11 of 15

12 Options Available Following Non-Compliance There are 3 options available to the police following notification of non-compliance of the conditional caution. The options together with the appropriate actions are detailed below: Option 1 Terminate the Conditional Caution and Prosecute the Original Offence The Authorising Officer will: Record the reasons for their decision on the Athena Case. The OIC will: Retrieve the original file, attach the Charge Sheet (if Offender charged), to the file and submit to CJU for consideration of proceedings, or if the offence has to get CPS authorisation under the DPP Guidance on Charging, contact CPSD (if proceedings are commenced then CJU will update PNC); Complete prosecution task in Athena with Accepted to begin the process to prosecute offender for the original offence; Begin prosecution process through Athena; Update the victim. The CJU Finalisations will: Update the Conditional Caution spreadsheet; Notify relevant agencies. Option 2 Consider the Conditional Caution Completed The Authorising Officer will: Record the reasons for their decision on the Task raised in Athena. The OIC will: Update the Athena record, attach the documentation and file in accordance with Essex Police policy and procedure; Complete the prosecution task with Rejected and add rationale to decision to update Athena with the decision not to prosecute; Inform the CJU Finalisations that that conditional caution has been completed; Update the victim. Page 12 of 15

13 The CJU Finalisations will: Update the conditional caution spreadsheet; Update PNC [Ext: ] in accordance with procedures; Notify relevant agencies. Option 3 Extend the Completion Date to Allow the Condition(s) to be Fulfilled or Authorise a Variation of the Conditions The Authorising Officer will: Record the reasons for their decision on the custody record; Oversee the completion of the new MG14 ensuring it is signed and completed correctly and follow the procedure as set out in 3.8 of this procedure. The OIC will: Complete a revised MG14 and discuss the content with the offender. Upon agreement to the extension, or variation, ensure the offender signs the form accordingly; Upload new MG14 onto Athena and amend the details of the conditions and or dates to be met for conditions in Athena; the revised MG14 to the CJU Finalisations; Update the victim. The CJU Finalisations: Update the conditional caution spreadsheet; Upon receipt of the revised MG14, suitably endorsed by the offender; Check information as to any changes to the conditions or dates to be met have been correctly updated on Athena; Notify PNC [Ext: ] to amend the end date of the conditional caution; Notify HMTCS (if compensation is a condition of the conditional caution); Notify relevant agencies. Any refusal to agree to the revised extension or variation may result in prosecution for the original offence. Page 13 of 15

14 3.12 Successful Completion of a Conditional Caution Where an offender satisfactorily completes the Conditional Caution the following information will be provided or raised as a task by Athena to the CJU Finalisations: HMCS, Victim Support, STaRS, RJ Hub will confirm by ; The relevant treatment agency will notify the successful completion of the conditional caution by if possible; Chase OIC for compliance update for local referrals or officer monitored conditions. Upon receipt of the above the CJU Finalisations will: Update the conditional cautions spreadsheet; Update Athena record; Update PNC [Ext: ]; Update the officer in case; The officer in case will inform the victim. 4.0 Equality Impact Assessment EIA form 5.0 Risk Assessment There are none associated with this procedure. 6.0 Consultation This procedure has been prepared in consultation with: Unison Federation Diversity Unit Health & Safety Custody Managers 7.0 Monitoring and Review This procedure will be reviewed by, or on behalf of, the Head of Criminal Justice and Offender Management Department every 12 months to ensure that it remains relevant and fit for purpose. Page 14 of 15

15 8.0 Governing Force policy. Related Force policies or related procedures F 0101 Procedure Penalty Notice for Disorder F 0102 Procedure Simple Cautions F 0104 Procedure Youth Caution and Conditional Caution F 0105 Procedure Postal Requisitions F 0106 Procedure Foreign Offender Conditional Cautions 9.0 Other source documents, e.g. legislation, Authorised Professional Practice (APP), Force forms, partnership agreements (if applicable) The code of practice for adult conditional cautions (Appendix A); The Directors Guidance on conditional cautioning 7 th edition 2013 (Appendix B); List of Referral agencies (Appendix C); For compensation for personal injury or for a punitive financial penalty (Appendix D); Conditional Caution Flowchart Page 15 of 15