The Justice secretary’s recent announcement that he wants to ‘put an end to this country’s cautions culture’ by abolishing the police caution, fails to recognise the important part cautions play in the swift and effective administration of justice in the UK.

Chris Grayling’s plans suggest replacing cautions (and other out-of-court disposals such as penalty notices for disorder (PNDs) and cannabis warnings) with a two-tier system of dealing with offences that might have previously attracted a caution, namely:

  1. A community resolution – to be used for minor offences such as making reparation to the victim by writing a letter of apology, repairing any damage or paying compensation.
  2. A suspended prosecution – to be used for more serious offences and to include a range of punishments such as fines and rehabilitation orders. Failure to comply with the conditions set down will result in the offender being prosecuted in court.

Victims will be asked to give their views on the proposed disposal in each case.

Deja vu

Those familiar with the criminal justice system will have a certain sense of deja vu: community resolutions and suspended prosecutions bear an uncanny resemblance to restorative justice and conditional cautions, both of which already exist and are deployed by police forces across the country where necessary.

Indeed, it is hard to see what these so-called new disposals are going to add to the police and prosecution’s armoury that they don’t already have. Nevertheless, Grayling insists that: ‘This new approach will empower victims and give them a say in how criminals are dealt with, as well as making it easier for officers to deal with more minor offences.’

Political posturing aside, the real mischief in Grayling’s proposals is that the removal of the criminal caution takes away one of the police’s most effective weapons in dealing with minor offences in an expeditious and efficient way. The beauty of the simple caution from the police’s perspective is that it can be imposed immediately (following an admission of guilt), saves on paperwork (so no need to draft statements and set up a case file) and is a final disposal and therefore requires no follow up.

This last point is of fundamental importance to the efficient dealing of low-level offending. If the only options are community resolution or suspended prosecution (which is the current Ministry of Justice proposal) this is undoubtedly going to create more work for the police in terms of monitoring and ensuring compliance with any conditions required.

Those who breach the conditions will have to be prosecuted, creating further paperwork for the police and Crown Prosecution Service, and there is a real risk that the magistrates’ courts will be flooded with a series of low-level offences that previously will have been dealt with outside of court.

Figures released by the MoJ suggest that from March 2013-March 2014 there were 391,171 out-of-court disposals issued including more than 235,000 cautions. It is inevitable that a large proportion of these types of offences will now reach court. The previous government introduced alternative out-of-court disposals to reduce the burden on the police on the courts but these new proposals risk bringing those types of offences back into the court system.

Soft option

Grayling argues that ‘it isn’t right that criminals who commit lower-level crime can be dealt with by little more than a warning’ and that simple cautions are a ‘soft option’.

However, this fails to recognise the fact that a caution is recorded on the police national computer (PNC), is disclosable to future employers in ‘excepted professions’ (such as those who work with children or other vulnerable people, the legal system and other regulated professions) and can prevent travel abroad to places such as the US. Receiving a criminal caution is therefore far from ‘walking away scot-free’, as Grayling suggests.

The proposed reforms are not going to endear the MoJ or Grayling to those who have witnessed the swingeing cuts brought in by successive governments to the courts, police and legal aid systems. Indeed, it is hard to see how the new reforms are going to assist an already-beleaguered criminal justice system in achieving justice more cheaply and efficiently.

There will be schemes piloted across three police forces – Leicestershire, Staffordshire and West Yorkshire – the MoJ would be wise to carefully consider whether the new system is workable and to ensure that re-inventing the wheel doesn’t risk it falling off completely.

This article first appeared in the Law Society Gazette, 5th November 2014.