A Note of Caution (Accepting and Challenging Cautions)

When can a Caution be Offered?

In order to offer a caution for an offence, the following criteria must be met:

1. There must be sufficient evidence to meet the full code test i.e. that there is a reasonable prospect of conviction;
2. The Offender must have admitted the offence; and
3. The caution must be in the public interest.

The decision to administer a caution will be taken by the Police, there does not need to be a referral for a CPS charging decision. 

It is settled law that before a caution can be administered, there has to be a clear admission by a defendant. The Home Office Circular 18/1994 entitled ‘ The Cautioning of Offenders ’ and the ‘ National Standards for Cautioning (Revised) ’ provides guidance on the approach that the police should take to cautioning. It states with the emphasis as in the original that: 

If a Caution has been offered, can it be challenged?

The Divisional Court has made it clear in R (on the application of Guest) v DPP [2009] EWHC 594 (Admin) that, as with a conditional caution the decision to administer a simple caution may be judicially reviewed.

There are essentially two grounds on which an application for judicial review can be granted:

1. The decision is unlawful;
2. The decision is so unreasonable that no reasonable public authority would reach it.

It should be noted, that where a simple caution or conditional caution is quashed by the Divisional Court, the "slate" is, in effect, "wiped clean" Jones v Whalley [2006] UKHL. The caution no longer exists and the CPS should review the case again to determine the appropriate disposal. This may include prosecution if both stages of the Full Code Test are satisfied.

How Can I Set Aside my Caution?

If you feel you have accepted a caution incorrectly or there is fresh evidence, it is possible to apply to set aside your caution or to apply for it to be deleted from Police records.

A failure to comply with the requirements of the Home Office circular can justify the Administrative Court quashing the caution following judicial review proceedings. For example, this court may strike down a caution where no admission has been obtained. If one of the following are not met then an application is arguable and likely to succeed:

1. There must be clear and reliable evidence of a voluntary admission before a caution can be given;
2. The admission must relate to all the ingredients of the offence; and

In order to ascertain if there is such evidence of a confession, it is necessary to consider all the evidence of interviews with the person cautioned in order to determine if such an admission was made. 

The time limit placed on a Judicial Review is 3 months from the date of the decision that is sought to be reviewed (CPR Part 54). This time limit can be extended only if there is “good or adequate explanation for the delay and that extending the time limit will not cause substantial hardship or substantial prejudice or be detrimental to good administration”.

What if the Police have Refused to Expunge my Caution?

The first step before seeking a judicial review should be to apply to expunge the caution, this can be done on the basis that it was wrongly offered, accepted or there was a breach of policy as set out above.