December 08 2021

Cautions, coppers and con tricks

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Cautions, coppers and con tricks

ANALYSIS: Every criminal advocate knows that Crown Courts are ghost towns compared to a few years ago, writes Mark George QC. Many have suspected that the cause must be changes to the charging criteria and an inappropriate use of under charging of offences as police try to divert cases away from the more expensive Crown Court and try to keep them in the Magistrates court.

As a result of a recent Freedom of Information request, the BBC has been able to establish the full extent to which reprimands, warnings and cautions have been used in Yorkshire as a way of ensuring that serious cases do not reach even the Magistrates Court let alone the Crown court.

I am all in favour of diverting particularly young and first time offenders away from the courts if it is appropriate. We all know the devastating effect that a previous conviction can have on a young person’s job prospects especially in such challenging economic times as we currently face. Reprimands and warnings only apply to those under 18 and so I am less concerned by them than the figures for cautions.

Earlier this year I was shown the figures for cautions in South Yorkshire over the four-year period 2008 to 2011. More recently I saw the comparable figures for West and North Yorkshire. The figures were shocking. They include 21 offences of possession of a firearm with intent, 19 of which were in South Yorkshire alone. It is not clear which of several offences this might be under the Firearms Act 1968 but all of them carry a maximum sentence of life imprisonment.

Then there were 658 offences of burglary of a dwelling house (overwhelmingly in West and South Yorks), 96 offences of robbery (all in W and S Yorks), over 5,500 offences of possession of drugs other than cannabis and over 5000 possession of cannabis offences, together with 30 offences of perverting the course of justice.  There were even 77 cases (72 of which were in S Yorks) of something called ‘wounding or carrying out an act endangering life’. I am not sure what this is meant to be as I know of no such offence but if it includes offences under s.18 of the Offences Against the Person Act 1981 they also carry a maximum of life imprisonment.  One of the highest figures was a staggering 9,409 offences of actual bodily harm nearly 7,000 of which came from S Yorks alone.

It is very hard to understand how in any circumstances a caution can be considered appropriate for a person who admits, as they have to do, that they are guilty of conduct which can merit a sentence of life imprisonment. Much the same can be said of any of the offences set out above. It seems to me to be clear that the public who are both the victims of crime and the recipients of these cautions are being cheated. 

First of all the victims of these crimes. I doubt if many of them have been consulted before a caution has been administered. If your child has been accosted on the way home from school and had their mobile phone or i-pod stolen (robbery), I don’t imagine there would be many parents who would welcome the case being dealt with on that sort of basis.

Then there is the general public who blithely think that it is the job of the police to detect and solve crimes and bring the culprits before the courts to receive an appropriate penalty. I don’t imagine many of them being very satisfied with these figures either. They are entitled to feel cheated of the sort of service the police should be providing.

And finally what about those who receive a caution?  Most will be unfamiliar with the criminal process. Many will never have been involved in criminal proceedings before. They are unlikely to have received legal advice before accepting a caution.  In a police station, no doubt feeling scared and anxious, worried about their future and the impact this arrest may have on their jobs and families they are likely to be only too happy to accept the offer to clear the matter up by accepting a caution. It’s an easy way of putting the matter behind them and moving on, or so they may think at the time.

Lawyers of course will know that later that caution may come back to haunt them either when they make a job application or if they get into further trouble and find the caution the subject of a bad character application. Suddenly the decision to accept that caution may not seem such a good one.

Con trick
And then, consider this. We all know that many cases of assault involve two sides to the argument. Depending on who hit who first and in what circumstances a case may have very different outcomes. As there were over 9,000 offences of assault occasioning actual bodily harm in that four year period it is reasonable to assume that many of them will have had a perfectly valid defence of self defence if only they had had access to legal advice at the time. So these people have ended up being cheated as well.

All in all therefore what is happening in the name of justice is a big con trick.  It might be defended on the basis that it is at least justice on the cheap except that it isn’t, its injustice on the cheap.   We all know that police and court budgets are being stretched as much as anywhere else in the public sector. Issuing cautions means the case can be ticked off as solved by the police, the figures for clear ups look great and all that expense of a court case can be avoided.  No matter that victim, defendant and general public are all being cheated of justice; let them console themselves with the savings of money.

Of course any lawyer raising such arguments is bound to have to answer the criticism that this is just lawyers trying to rustle up more work so that they can get fat on the proceeds. Oh, if only. The reality of course as every criminal lawyer knows is that none of them is going to get rich on the fees from any of these cases.

This is not about lawyers protecting their own incomes. It is about ensuring that criminal offences are properly dealt with.

The police are not entitled to issue a reprimand, warning or caution unless there is a realistic prospect of a conviction. In other words there must be sufficient evidence that at least satisfies that test. I suspect that part of the problem is that the police are misusing caution in cases where they know full well that they do NOT have sufficient evidence to raise that ‘realistic prospect’.

In other words they know that if the offender rejects the offer of a caution the case will either never proceed to a charge or if it does is unlikely to result in a conviction at court. So yet again unsuspecting offenders are being cheated of justice.

The administration of justice is not well served by zealous over-charging of those who come to the attention of the police. Neither however is justice served when the police take on themselves the role properly reserved for the courts of deciding in effect who is guilty and who is not of sometimes serious crimes. It may be that the police would be able to justify many instances of the use of cautions. Equally however it appears they would have their work cut out to justify many of the decisions made in the cases referred to above.

4 responses to “Cautions, coppers and con tricks”

  1. Zenexpat says:

    This is just the thin end of the wedge; there are myriad further consequences for this problem. I now reside in New York City, where the NYPD’s ‘Compstat’ system ostensibly measures the success of a particular precinct in the detection and solving of crime. The system is now being twisted and abused, leading to a similar trend as the one mentioned here. Crimes are being ‘downgraded’ from the more serious ‘felony’ to the lesser ‘misdemeanor’ category. In certain cases, reported crimes are even being dropped completely, at the discretion of a supervisor. Most of the aforementioned ‘adjustments’ are entirely ‘unofficial,’ and the victims of such crimes are rarely even interviewed, let alone updated.

    The impact of this is that the NYPD now go for the low hanging fruit and would much rather pursue ticketable offenses, unless the crime is a high profile one. The resulting NYPD statistics look superb on paper, but in reality detection is now suffering. There have been many recent cases highlighting the dangers.

    One such case springs to mind, where a female was out jogging one morning and was prayed upon by a would-be rapist. He succeeded in dragging her into a bush, punching her then ripping her clothing before he lost courage due to his victim’s strength. The victim reported the matter and was later interviewed at her apartment. The attending officers decided to ‘downgrade’ and report the matter as the US version of a common assault, and no further action was taken. The victim was never contacted again and, after 11 months, discovered her reported crime had disappeared from the record. She was justifiably outraged and lodged a formal complaint with the NYPD and told the press.

    A detective on a task force that was trying to find a serial rapist in Manhattan just happened to read about the victims complaint in the newspaper and noticed the similarity between his rapist and the victim’s incident. He interviewed the victim, the attending officers and also went looking for the original file. The information elicited by the detective resulted in his being able to locate the suspect through a unique piece of evidence, and a serial rapist was captured and convicted (he actually plead guilty). Neither the detective of his department had been informed about the incident originally, because of the downgrade.

    I wonder how many victims of crimes will suffer the same fate, if the UK forces continue to follow this fine American model of statistics being more important than policing?

  2. AyJay says:

    I would be interested to know what role the CPS play in the decision to proceed to court or to caution. I assume they are consulted in every case (?) and that the police are pretty much bound to follow their advice; if so, it is wrong to blame the polce (as the post appears to do since no other agency is mentioned). Can anyone clarify this?

  3. frednach says:

    Absolutely agree with all the above analysis. It is important that at the primary stage we get things right or weep for the seed later. This means suspects at the police station are afforded access without delay to independent lawyers who are able to assess and weight the facts and evidence before they are even able to accept any charges. Routine failures such as delaying access, duty solicitors as opposed to client’s own must be addressed. Rights to suspects must be clearly explained and avoid con tricks such as voluntary interviews; right to silence in particular is a good example where suspects are often tricked into making unwitting statements which can then be used to haunt them later by the the silence concept has been breached. Clients need to bear in mind that silence and adverse inference can only be used if the evidence or facts are strong which is ultimately for the magistrate or jury to decide.

    It is also right that we look at the specific allegations or charges many cases have collapsed with lawyers making a name for themselves take for instance Mr Loophole, who is often accused of exploiting on technicalities or lacuna’s in the law, but my answer to that is either there is an offence or there isn’t, if the information or allegation is laid out of time or wrong it is the prosecution to blame and accountable to victims.

    Then there are offences that are frankly draft things like charges of theft of meat, fruit and clothing typically formed by offenders on alcohol or drug related who are in no fit state to answer any charges or own up to offences, which again remains an area unexplored with little knowledge of mental health laws.

  4. Anonymous says:

    Tackling crime and addressing the issues raised above is no easy task with high unemployment, police cuts and government obsession with legislation as a means of deterrent. Another obsession seems to be targets for all sorts matters from enforcement times, to specific crimes to victims. Amongst this clueless ideal we are often left with a second tier justice system where matters are taken into account thereby compromising due process and justice.

    I highlight just some of the problem areas below:

    a disparity in charging suspects dependent on social class
    b inability to differentiate between offences and trivial ones
    c lack of access to legal independent advice as opposed to duty schemes
    d delaying tactics in legal advice to secure a confession
    e suspects pressured into breaching the right of silence
    f failure to consider alternatives and defences
    g targeting offenders easy to get at

    Then at the formal process lawyers have been accused of exploiting lacuna’s in the law such as Mr Loophole who would rightly say that there is no such thing as a lacuna either there is an offence or there is not, either it is lawful or it is unlawful. I am of course referring to prosecution failings in laying information or charges incorrectly. Then there are matters more serious such as disclosure and evidence evasion tactics- how is it fair for the prosecution to be objective in prosecuting and at the same time we are led to believe that s/he is objective in ‘releasing’ evidence that might undermine it’s very case, surely this is subjective and perverse?

    Last but not least the cosiness of prosecution officials are another malice that cannot be ignored such as the relationship and workings of court officials where the system can be breached take for instance the back door approach, same old officials doing same old things leading to an easy foundation and thus compromising due process .

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