Nestled amid the 14 parts, 20 schedules and 210 clauses of the Police, Crime, Sentencing and Courts Bill lies a substantial reform of the framework for adult out of court disposals. Part 6 of the new Bill, which is now entering the final stages before becoming law, significantly reduces the number of out of court disposals available to law enforcement agencies and thus increases the likelihood of an offender receiving a criminal record. This change has not, thus far, attracted a great deal of legal comment, but it could lead to significant implications for individuals facing the prospect of a ‘low-level’ criminal conviction.
The new out of court disposals
Out of court disposals are a means by which a law enforcement agency such as the police can swiftly and efficiently deal with less serious offending, without commencing a criminal prosecution. In order for an out of court disposal to be valid, the offence must be eligible, and the offender must accept their guilt.
There are currently a variety of different out of court disposals, of which three are not recorded on the Police National Computer. These are: community resolutions, drugs warnings (for cannabis and khat), and penalty notices for disorder. Under the proposed new Act only community resolutions will remain in place.
The proposed Act also abolishes the conditional caution and the simple caution, replacing them with the diversionary caution and the community caution.
The distinction between these two new forms of caution is that a community caution cannot (except in exceptional circumstances and with the consent of the DPP) be given for ‘excluded offences’ which are indictable only offences or prescribed either way or summary only offences.
Common to both of the new cautions will be the imposition of conditions, which must be attached to each, with the range and stringency of conditions being wider and more rigorous for diversionary cautions.
Breach of conditions imposed on a diversionary caution can result in criminal prosecution, with a power of arrest attached. Breach of conditions attached to a community caution can result in a financial penalty.
Common to both cautions, as is the current position, is that there must be sufficient evidence to charge with an offence and the offender must make a clear and reliable admission to the offence and consent to the administration of the caution.
The given rationales for these changes to the current out of court disposal regime include a desire to reduce re-offending by introducing cautions which ‘bite’ rather than those perceived as ‘a slap on the wrist’.
Caution conditions can include restrictive, unpaid work and attendance conditions, together with the imposition of a financial penalty. For diversionary cautions, there is a power to require a foreign offender to leave or prevent their return to the UK.
Another important change is that under the Rehabilitation of Offenders Act 1974, a caution with conditions does not become spent immediately, (as is currently the case with a simple caution, which is to be abolished) but only after a period of three months.
There is also a statutory requirement to seek the views of the victim.
The primary consequence of these changes is likely to be in an increase in the proportion of low level offenders receiving a criminal record which is recorded on the Police National Computer (PNC)
As well as being undesirable in its own right, a PNC-recorded caution is usually disclosable under an enhanced DBS check, and can thereby have a potentially damaging impact on an individual’s professional life. Cautions can also impact adversely on the ability to travel freely to some countries.
The proposals make it more important for an individual who is arrested or offered an out of court disposal to obtain timely legal advice, at the police station, for even the most minor offences.
In appropriate cases, it may be necessary to try to push for the one remaining out of court disposal which is not recordable on the Police National Computer – the community resolution – given the disclosure implications and ramifications of cautions.