- A recent High Court decision should remind all those involved in the issuing of simple adult cautions of the need to follow the Ministry of Justice guidance.
- Disclosure of the evidence (not necessarily the documents) should be provided.
- Cautions would only be quashed in an exceptional case where a caution is administered in clear breach of the guidelines.
In December 2015, the High Court was once again asked to quash a simple caution that the Claimant alleged had been wrongly issued. In Manser v. Commissioner of Police for the Metropolis [2015] EWHC 3642 (Admin), the Claimant unsuccessfully sought a judicially review of a caution that was issued to her in July 2014 for an alleged offence of assault occasioning actual bodily harm. Although the case did not concern a novel point of law, it should act as a reminder to all officers involved in the issuing of simple cautions of the need to follow the Ministry of Justice guidance.
The Claimant asserted that the police officers who issued the caution had failed to comply with the guidance issued by the Ministry of Justice in 2013 – in particular, that there had been a failure to disclose evidence. The Claimant submitted that because she had not been provided with the documentary medical evidence regarding the injury, the requirement in the guidance that disclosure should be provided had been breached and, therefore, the caution that she had accepted was invalid.
The court seemed to have little difficulty in concluding that disclosure of evidence did not necessarily mean that particular documents had to be disclosed so long as that disclosure of the information was sufficient. Having concluded that the guidance had not been breached, the court dismissed the claim.
The High Court is regularly asked to examine the validity of cautions and the expectation is that the guidance issued by the Ministry of Justice should be substantially followed. A breach of the guidance will not necessarily lead to a quashing of the caution, because the High Court retains a discretion not to act, but it is a risk that can easily be avoided if the guidance is followed. In R v Commissioner of Police of the Metropolis ex parte Thompson [1997] 1 WLR 1519 it was confirmed that the quashing of a caution was discretionary even if there was a breach of the guidance. Also, in Lee v Chief Constable of Essex Police [2012] EWHC 283 (Admin) the High Court considered that cautions would only be quashed in “an exceptional case where a caution is administered in clear breach of the guidelines”.
Given the pressures upon officers operating in busy custody suites, it is perhaps unsurprising that the guidance is sometimes overlooked. All those dealing with simple cautions should be aware that the following are key requirements according to the current guidance issued by the Ministry of Justice in April 2015:
- The alleged offender must clearly and reliably admit the offence. Although a formal taped interview may not always be required there should be a clear PACE-compliant record of the admission. Arguments about whether or not the admission was clear are common.
- There must be sufficient evidence to provide a realistic prospect of conviction.
- It must be in the public interest to issue a caution.
- The alleged offender must accept the issue of a caution.
- Legal advice should be offered.
- Disclosure of the evidence (not necessarily the documents) should be provided.
- The consequences of accepting a caution should be fully explained to the alleged offender. In particular they should be informed that a caution is an admission of guilt and forms part of a criminal record, which may be revealed in criminal record checks. Cautions are often challenged when there has been a failure to explain the potential ramifications in relation to employment and travel.
- A supervisor not involved in the investigation should make the final decision as to whether or not a caution should be offered.