Damien Green, the Justice Minister, has told the Association of Chief Police Officers that police officers should use more judgement and discretion when dealing with low-level crime rather than automatically charging them.
In fact, while it may be true that some aspects of police work are more formulaic, partly perhaps, as a response to the greater scrutiny applied now to police decision making, police officers do continue to have significant influence on the outcome of their cases. This is particularly true where the cases concern low-level crime.
Trying to predict how “judgement and discretion” will be applied in any given case, though, can be hard and often seems to have more to do with the culture of a particular force - or even of a particular police station or unit - than with the application of any readily discernible principles. For a lawyer, understanding this culture, and its influence on the judgement of the individual officer, and adapting your approach accordingly, is critical to a successful outcome.
For low level crimes there are a range of possible disposals open to the police other than charge. For certain types of offences, typically low level anti-social behaviour, Penalty Notices for Disorder (PND) can be imposed. No admission is necessary for such a penalty to be imposed and no criminal record results. The recipient has to pay a fine of either £60 or £90 within 21 days or else contest the PND, meaning the matter is dealt with by the magistrates court as a not guilty plea. Such disposals are not available to those under 18. Persuading the police that, say, an alleged assault (for which a PND is not available) can be characterised as, say, threatening words and behaviour (for which it is), can conclude a matter without either any formal conviction, or even an admission being required.
For certain other suitable cases cautions or conditional cautions may be an option. For a caution to be considered the following conditions must be fulfilled: the person must admit their guilt; the police must have sufficient evidence to charge the person with the offence; the offence must be suitable (generally meaning not too serious); and the person must agree to the imposition of a caution. As the name suggests, a conditional caution includes the requirement that certain conditions be fulfilled, typically a form of restoration for the victim if appropriate. Cautions are also available for those under 18, though only with the approval of the Youth Offending Team (YOT). What constitutes a suitable offence can be hard to predict but seeking to negotiate a caution in a range of circumstances is part of bread and butter of a police station lawyer.
What must always be remembered is that the police officer in charge of the case has significant influence as to its disposal (whatever he or she might say about it being a decision for the Custody Sergeant or CPS lawyer). If the police officer likes you and likes your client (or - more realistically - at least doesn’t find you completely objectionable) then there is a greater chance of a more favourable outcome. Common sense really - but well worth remembering before launching into a doomed argument about some trivial aspect of the treatment of your client while in custody...