A note of caution...

A project undertaken by the Postal Services Commission (POSTCOMM) has highlighted a growing concern shared by numerous public authorities with prosecuting powers. Having commissioned an extensive review of its investigative and prosecution procedures, in which several Government bodies and public authorities offered their full co-operation, POSTCOMM identified a number of hugely important points. Not least the fact that a large percentage of criminal prosecutions and cautions aren’t recorded on the Police National Computer (PNC).

When the police take an action through the Crown Prosecution Service, the onus is very much on the police to place the outcome of that case on the PNC. Many prosecuting authorities, of course, engage in their own actions through the Courts.

As the police are all-too-often not involved in these prosecutions, it comes as no surprise to find that they rarely appear on the PNC.

As far back as 1994, the Home Office issued a circular (18/1994) which provided guidance with regard to the cautioning of offenders as a suitable alternative to prosecutions (see www.homeoffice.gov.uk/docs/hoc9418. html) Paragraph 1 states: “The purpose of this circular was to provide guidance on the cautioning of offenders and, in particular, to discourage the use of cautions in inappropriate cases (for example in relation to offences which are triable on indictment only), to seek greater consistency between police force areas and to promote the better recording of cautions.”

The Criminal Justice Act 2003 made provision for conditional cautions whereby, as an alternative to being prosecuted, an individual may be given a caution which is accompanied by the requirement to undertake some form of reparative or rehabilitative condition. At www.homeoffice.gov.uk/ docs3/cc_consult_code.pdf, you’ll find a draft Code of Practice (published on 18 February this year) with regard to conditional cautioning. Paragraph 1.2 of that Code states: “Conditional cautioning enables offenders to be given a suitable disposal without the involvement of the usual Court processes.”

Various comments are made on the Home Office web site (www.homeoffice.gov.uk) with respect to the suitability of cautions. From the discussion document posted there, it’s easy to deduce that if the person cautioned breaches its conditions, he or she can then be taken back to Court and tried for the original offence. A breach of the caution could be a subsequent offence in a specific period of time.

A number of public authorities will be empowered to issue these conditional cautions, and indeed currently issue cautions under the aforementioned Home Office guideline 18/1994. However, as they don’t have access to records of prosecutions and cautions issued by other authorities, they aren’t in an informed position to decide whether or not to proceed by way of prosecution or caution. For example, the Office of Fair Trading holds a convictions register compiled using information supplied by trading standards offices. The police and other trading standards offices have access to this register. We have been informed by the Office of Fair Trading that approaches have been made by other prosecuting authorities to gain access.

Until such time as that access is afforded, those public authorities will be in the position as described previously (ie deciding on whether to issue a caution when not in possession of sufficient facts). This is one of the matters that was addressed in the Bichard Inquiry into the Soham murders (the report having been published in June). Information that was needed in order to vet Ian Huntley wasn’t available because certain information hadn’t been properly shared, despite the fact there is legislation in place to allow such sharing to occur.

Using an alternative method

Clauses 22-27 of the Criminal Justice Act 2003 deal with conditional cautions. At www.publications.parliament.uk, there’s an extract from the 3rd Standing Committee on delegated legislation which refers to cautions as recently as 18 May 2004. As is immediately apparent from these pages, the purpose of these cautions is to provide an alternative method of dealing with the offence rather than offer recourse to the Courts. This enables a given offence to be dealt with much more quickly and saves the expense of a Court case.

The Code of Practice advises that a conditional caution will usually be appropriate where conditions that facilitate the rehabilitation of the offender will ensure that they make reparation for the offence or provide a proportionate response to it (bearing in mind the public interest). It then goes on to make clear that “only in exceptional circumstances should a person who has recently been cautioned for a similar offence be given a conditional caution”. This is to ensure that it is having the appropriate effect on an individual, and that he or she isn’t just being presented with a list of cautions as an easier option.

However, this does place the onus squarely on the prosecuting body issuing the caution to be fully aware that a caution for a similar offence hasn’t been issued during the past six months. That is easily achievable if the prosecuting authority has an official means of recording the cautions, and that they are the only party issuing those cautions. The problem arises where a caution for theft is being issued by a local authority when, three months previously, the same individual had been issued a caution for theft of mail. The situation is further exacerbated if there are two authorities and both can issue cautions for similar offences, but neither knows if the other has done so.

The objective of cautioning would also seem to be defeated if the authority issuing the caution doesn’t have access to the PNC to check on an individual’s previous convictions. If that prosecuting authority which doesn’t have access to the PNC is considering a caution, and was aware of the fact that the subject had just served two years for theft, they may not consider a caution the appropriate means of dealing with the latest offence. It also raises the question as to whether or not it would be in the public interest to merely caution a serial thief.

It would appear sensible that all prosecuting authorities have access to a person’s full criminal record in order to make use of the conditional caution in the manner that’s prescribed in the Criminal Justice Act 2003. Currently, they do not enjoy access to that information, which would seem to indicate they should proceed by way of prosecution

It would appear sensible that all prosecuting authorities have access to a person’s full criminal record in order to make use of the conditional caution in the manner that’s prescribed in the Criminal Justice Act 2003. Currently, they do not enjoy access to that information, which would seem to indicate they should proceed by way of prosecution.

This would not seem to be a desirable course of action with a first offender, which is exactly the point the Criminal Justice Act 2003 is trying to address.

It’s also worth considering whether, in the subsequent Court case, the defendant’s barrister would question the prosecution as not complying with the Act, nor being in the public interest.

In the public interest

A Code of Practice for Crown Prosecutions can be found on the Internet at: www.cps.gov.uk/publications/docs/codeeng.pdf The appendix you will be directed to here relates to Section 6, the Public Interest Test. In essence, it examines whether it would be in the public interest to issue a prosecution. Criteria 6 states: “The defendant’s previous convictions or cautions are relevant to the present offence.” Sections 6.11 and 6.12 deal with cautions. The latter states: “When deciding whether a case should be prosecuted in the Courts, Crown Prosecutors should consider the alternatives to prosecution. This will include a police caution. Again, the Home Office guidelines should be applied. Where it is felt that a caution is appropriate, Crown Prosecutors must inform the police so that they can caution the suspect.”

Unless prosecuting authorities have access to cautions issued in place of prosecutions for previous incidents, how can they comply with this Public Interest Test from the Code of Practice for Crown Prosecutors?

The CRB is the gatekeeper

The Criminal Records Bureau (CRB) is the gatekeeper to recordable offences that could affect the employment of individuals working in the private security industry, and those who may have responsibility for children and/or vulnerable adults. It’s recognised that there simply must be a rigorous vetting process in place to check such individuals prior to and during their employment. A fact stressed in no uncertain terms in the Bichard Report (copies of which may be accessed on the Internet at www.bichardinquiry.gov.uk).

In many of the documents provided in evidence to the Bichard Inquiry, reference was made to where the employing authority would ask the applicant if he or she has any criminal convictions or cautions. The applicant would then give permission for the authority concerned to access the CRB and verify their assertion. As the POSTCOMM project demonstrates, the CRB wouldn’t have access to all the records and therefore the vetting could well be inadequate.

From time to time, a police officer or other designated officer of a prosecuting authority will have to make a decision as to whether the issue of a caution is appropriate for dealing with a specific offence. As evidenced by the Home Office guideline 18/1994 and the Criminal Justice Act 2003, officers will need to satisfy themselves that this is the appropriate way of dealing with the offence in question. They are not in a position to make such a decision if they don’t have access to all of the criminal records relating to the accused.

In the absence of that intelligence, they may well decide on a caution when the matter might have been better dealt with by the judiciary. The person concerned may have ended up with a custodial sentence, which could have been recorded on the PNC, found its way into the CRB and then be accessible by a security company or local authority considering employing that person.

As a direct result of the Bichard Inquiry, Home Secretary David Blunkett has thrown his full weight behind the development of a National Intelligence Database accessible by all law enforcement agencies. However, unless all of those ‘hidden’ criminal records are dutifully recorded on a central database, and are accessible by law enforcement and all other authorised bodies, that bank of statistics will not be nearly as effective as the Home Secretary intends it should be.