November 30 2023

Cautions, coppers and con tricks

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.