Number: F0106 Date Published: 6 November 2020 Version 4 – November 2020
1.0 Summary of Changes
This procedure has undergone its 2 yearly review. The only amendment made was the addition of new paragraphs within section 8 regarding data security and retention and disposal of records.
2.0 What this Procedure is about
From the 8th April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO) came into effect, giving the police and Crown Prosecution Service (CPS) an option to use a conditional caution as a means of case disposal for a Foreign Offender as an alternative to a charge. This has the effect of repealing all previous guidance and statues concerning conditional cautions.
This procedure should be read in conjunction with:
The code of practice for adult conditional cautions (Appendix A);
The Directors Guidance on conditional cautioning 7th edition 2013 (Appendix B);
F 0402 Procedure – Conditional Caution.
LAPSO determines that there is no requirement for the police to refer a case to the CPS before issuing a conditional caution, with the exception of indictable only offences. Otherwise the act allows the police to issue a conditional caution for any summary or either way offence, (where the offender could be sentenced up to 2 years imprisonment), without deferral to CPS for a decision. Domestic Abuse and Hate Crime offences are excluded from the FOREIGN OFFENDER Conditional Cautioning criteria.
Conditional Cautioning is a statutory disposal for Foreign Offenders, for the police to use as an alternative to charge. It can be used where the public interest would be better served by facilitating the removal of the Foreign Offender from the jurisdiction and ensure non return. The purpose of the Conditional Caution is to bring about the departure of the offender from the UK and ensure they do not return for a specified period of time.
Although multiple conditions can be set for an offender, the removal conditions will take primacy.
It is important that as soon as a foreign offender has been detained, the custody officer should contact the UKBA Command and Control to establish whether the individual is classified as a relevant foreign offender, if the person holds a passport or other travel information or identification, what their status is and that of any dependants, and whether the individual can be removed from the UK within 16 weeks. Once confirmed, UKBA Command and Control will provide any immigration papers and will liaise over the appropriate conditions to be offered.
We must ensure that we adopt a multi-agency approach when deciding on whether the offender is suitable for a Foreign Offender Conditional Caution and the conditions to be attached to ensure completion.
Compliance with this procedure and any governing policy is mandatory.
3.0 Detail the Procedure
3.1 Qualifying Criteria
The following criteria must be satisfied before a Conditional Caution can be given: It is important that before a conditional caution is offered it is deemed to be appropriate, proportionate, and achievable, taking into account the level of offending, the recidivist history of the offender, the views of the victim and the likelihood of the conditions being fulfilled.
THE OFFENDER MUST BE OVER THE AGE OF 18 YEARS;
There must be evidence that the offender has committed the offence;
There must be sufficient evidence to satisfy the Full Code Test;
If an offender is not interviewed, or makes no admission in interview, but does not deny the offence, a Conditional Caution may still be offered if upon review, there is a realistic prospect of conviction in the case. Where an offender denies the offence in interview, or raises a defence, it will not be appropriate to offer a Conditional Caution;
The offender is not required to make an admission before the police determine whether a Conditional Caution is appropriate. However, the offender must admit the offence at the time the Caution is administered;
The offence is deemed appropriate in accordance with any ACPO gravity factor matrix published;
The offender must sign the MG14 containing details of the offence, the admission that the offender committed the offence, consent to a conditional caution being given and detailing conditions of the caution;
A copy of form MG14 is to be sent to UKBA Command and Control.
3.2 Disqualifying Criteria
A foreign offender conditional caution will not be considered suitable where:
If UKBA Command and Control have determined the foreign offender is unlikely to be able to be removed from the UK within 16 weeks.
The foreign offender makes or has an outstanding asylum or Human Rights claim to remain in the UK;
The foreign offender admits to committing a document, or identity fraud offence in order to make a claim for asylum;
The offender may be a trafficked victim;
It is thought that the likely sentence, should the foreign offender be found guilty in a court would exceed 2 years imprisonment.
If the offender is not able to be removed within the 16 weeks but the public interest would be better served not going through the courts then a normal Conditional Caution can be considered. As UKBA Command and Control have been notified they will begin an alternative deportation process.
Where a case may appear to fit the conditional cautioning criteria, and it was decided not to issue one, the supporting reasons must be explained on the MG5 when submitting the file post-charge.
3.3 Previous Convictions
The existence of previous convictions is not necessarily a bar to a conditional caution:
Convictions or cautions greater than 5 years old should be disregarded;
Dissimilar offences less than 5 years old should be disregarded;
Similar offences less than 5 years old consider whether the conditions reduce the likelihood of re-offending or break the offending pattern.
3.4 Multiple Offences
It is possible to administer a caution for more than one offence if the offences are related or similar.
The admission to a number of offences over a period of time (systematic offending), will render the case overall too serious to consider a conditional caution and would not attract a lower level penalty from the Courts.
The criteria for the use of a conditional caution must apply to each offence.
3.5 Applying the Conditional Caution
Before considering the application of a criminal conditional caution the Investigating Officer must:
Pursue all reasonable lines of enquiry;
Have obtained statements from all key witnesses irrespective of whether they support or undermine any prosecution case;
Obtained an invoice or estimate detailing the amount of compensation required;
Ascertain the victim’s views regarding disposal of the matter by means of a Conditional Caution. The victim’s views must be recorded on the MG5;
Obtained an account from the offender;
For compensation for personal injury or for a punitive financial penalty, refer to the table at Appendix B.
A referral must then be made to the Authorising Officer for consideration as to whether in all the circumstances the matter is suitable for a conditional caution. The Authorising Officer must ensure:
All qualifying criteria set out above have been met;
None of the disqualifying criteria are applicable. If they are, the Authorising Officer should refuse the conditional caution informing the Investigating Officer to note the disqualifying criteria within the case papers;
The offender is likely to agree to a conditional caution;
The views of the victim are known.
3.5.1 Time Limits for Completion of a Conditional Caution
Conditions to leave the country will generally be set at within 16 weeks, but no more than 24 weeks. In practice it is anticipated that the time period will be substantially shorter, and, in some cases, immediately.
For summary only cases the statutory time limit to begin proceedings by way of charge, summons or postal requisition is six months from the date when the offence was committed.
3.6 The Role of the Crown Prosecution Service
Although the authority to issue a foreign offender conditional caution is now vested in the police, the CPS also has a role to play in the decision-making process in the following circumstances:
All indictable only offences MUST be referred to a prosecutor to authorise a conditional caution;
Where an offender has been charged and the case is reviewed by a CPS lawyer, if it appears a conditional caution is more appropriate the police should be directed to issue one. If the condition of the caution is subsequently breached the case MUST be referred back to the authorising lawyer for further consideration;
Pre-charge advice; the police can still consult a CPS lawyer to obtain advice as to whether a conditional caution is suitable, even in circumstances where the police are permitted to administer a conditional caution without reference to CPS. THIS SHOULD ONLY BE USED IN EXCEPTIONAL CIRCUMSTANCES;
If the conditional caution was issued for an offence, which under the Director Generals’ guidance on statutory charging would ordinarily have meant the police would need to refer the case to CPS for authority to charge, if the caution has not been complied with and the police seek to prosecute the case MUST be referred to CPS for a charging decision.
3.7 Completion of the MG14
Care must be taken when drafting the conditions to ensure they are proportionate and achievable. They should be aimed at achieving the following objectives:
To bring about the departure of the offender from the UK within a reasonable period of time. THIS IS AN OBLIGATORY CONDITION IN ALL CASES;
To ensure the offender does not return before a specified period of time has lapsed. THIS IS AN OBLIGATORY CONDITION IN ALL CASES.
Multiple conditions can be used, but the issue of proportionality must be considered. Therefore, if it is deemed appropriate along with the condition to depart the UK and not return, compensation, restorative activities and other conditions which could be set.
3.7.1 Conditions to be Used
The following conditions are available in addition to the obligatory ones referred to at 3.7 above:
Report regularly to an immigration office, reporting centre, police station or other similar place, pending removal;
Obtain or assist authorities in obtaining a valid national travel document; Or
Comply with removal directions and any lawful directions given to effect departure;
Not to return to the UK within in specified period of time, normally 5 years as set out in the immigration rules. (This can be extended to 10 years in exceptional circumstances in Indictable Only cases, if authorised by CPS).
Priority should be given to conditions to facilitate the early removal of the foreign offender from the UK; however other reparative or punitive conditions as set out in F 0402 Procedure - Conditional Caution may also be included, provided the circumstances of the offender and any detention under immigration powers permit completion. CONDITIONS SHOULD NOT BE INCLUDED IF THEY ARE LIKELY TO DELAY THE REMOVAL OR MAY NOT BE COMPLETED PRIOR TO THE REMOVAL DATE.
3.8 Administering the Conditional Caution
This is explained in: F 0402 Procedure - Conditional Caution.
The authorising officer is determined by the category of offences i.e. whether it is indictable, either way or summary only. The table below shows the requirement for each category and is always the lowest possible rank which could authorise (i.e. for summary only you require authority from an officer not below the rank of sergeant):
Serious Either Way (Normally tried at crown court)
Summary Only and other Either Way
Once complete the officer must comply with the following:
Ensure a copy of the MG14 is held on Athena.
Send copy of MG14 to UKBA;
The Magistrates’ Court will monitor the payment of any compensation and forward any monies received to the victim. They will also notify the CJU Finalisations once payment has been made;
CJU Finalisations will also receive the confirmation of compliance from Victim Support for the VAC, STaRS for the AAC and Restorative Justice Hub (OPCC) for all restorative justice conditions referred to them;
Officers will need to monitor restrictive conditions, reparation to the community and any local referrals made to agencies other than the ones listed above which the CJU teams will monitor.
3.9 The Role of the CJU Finalisations
Upon authorising officer administering the Conditional Caution on Athena, CJU Finalisations team will receive a task to process new conditional caution. At this point the CJU will:
Where the conditional caution involves the payment of compensation or a punitive penalty, fax or email a copy of the MG14 together with the name and address of the victim to HMCTS (at their address as shown in Appendix C).
Notify HMCS of any condition to pay compensation, together with the name, address and telephone number of the victim;
For the Alcohol Awareness Course, check the OIC has completed the AAC1 referral form and if not request OIC to complete and upload onto Athena. Once obtained the AAC1 referral form, CJU will send it to STaRS;
For the Victim Awareness Course, check the MG14 and populate a spreadsheet weekly to send to AA DriveTech who are the outsourced admin organisation dealing with referrals for the VAC;
For a restorative justice activity, email the MG14 together with the victims contact details to the Restorative Justice Hub;
Forward a copy of the MG14 form to the relevant referral agency, co-ordinate the administration and notification processes when a conditional caution has been:
Not complied with;
Ensure the PNC Bureau is notified of any changes to a conditional caution;
Contact OICs to check whether there was compliance with any officer monitored conditions;
Where a prosecutor decides to prosecute as a result of non-compliance, confirm with the OIC that the original file has been submitted to CJU;
Submit a monthly return of conditional cautions to the CJD Quality and Policy Development Manager and the Essex Police Crime Statistics Department.
3.10 Retention of Case Papers-
Once notification is received that the offender has successfully completed the conditions, the Investigator will retrieve the case papers, update the crime report and arrange for the papers to be filed and retained in accordance with Force policy and procedure.
The record of the Conditional Caution will be held on PNC up to the 100th Birthday of the person receiving the Conditional Caution. This will be calculated from the date of birth provided by the person at the time the Conditional Caution was given.
3.10.1 Notification Process
Where a person fails to comply with any of the conditions imposed, the police will consider whether criminal proceedings are to be instituted for the original offence. Failure to comply with a conditional caution is not in in itself a criminal offence.
Where the breach relates to rehabilitative or reparative conditions, the relevant agency will notify the CJU Finalisations of the non-compliance. The CJU Finalisations will inform the Investigator, who will, in turn, contact the offender to ascertain their reasons for failing to comply.
Where the police or any other agency required to monitor compliance becomes aware that an offender is not complying with a condition, they should seek to obtain as much information of the non-compliance as possible, including giving the offender an opportunity to provide an explanation. The police or other agency monitoring compliance should then determine whether it would be appropriate to provide further guidance to the offender and allow the original conditions to be completed within the original time frame. If there has been non-compliance the CJU Finalisations will raise a task back to the OIC to consider for prosecution. At this point the OIC should get Sergeants and CPS decision (CPS if it was an indictable only offence or one where CPS advice was sought originally) on whether to prosecute for the original offence. The OIC should present the reasons the offender has given for partial or full non-compliance of the conditions which had been set. The rationale behind the decision either to prosecute or not should be recorded on this prosecution task by the OIC.
If the decision is to prosecute the evidence file will be forwarded to the relevant Criminal Justice Unit (CJU) with the reasons to prosecute clearly shown on the MG5. The CJU will then issue a Summons or Postal Requisition if appropriate.
3.10.2 Availability of Power of Arrest
Section 24A of the Criminal Justice Act 2003 allows a constable to arrest any person whom he has reasonable grounds for believing has failed without reasonable excuse to comply with any conditions of a conditional caution. The section also provides a power to keep the person in police detention if it is necessary to do so for the purpose of investigating whether he has failed, without reasonable excuse to comply with any conditions attached to the conditional caution.
The power of arrest should only be exercised where considered necessary. The necessity criteria in S24(4) and (5) PACE do not apply to arrests under S24A of the CJA 2003, although the criteria may provide useful indication as to whether an arrest could be considered necessary.
Once arrested, detention may be authorised where it is necessary to investigate reasons for any non-compliance or to seek a charging decision from a prosecutor, or to formally charge an offender.
Where the power of arrest has been exercised, the offender should only be detained for as long as is necessary to explore the reasons for any breach and/or to undertake any charging procedures. Where it is clear this cannot be achieved in a short period of time, the offender should be released on bail under S24A(2)(b) of the Act whilst the enquiry into the non-compliance and the decision whether to charge with the original offence is undertaken.
When an offender is arrested, the Custody Officer must ascertain the details of non-compliance.
If there is a reasonable excuse the offender should be released and the conditional caution allowed to continue. If there is no reasonable excuse, or the offender can no longer comply, the offender should be charged (subject to any restriction in 3.5.1) and in accordance with the DPPs Guidance on Charging which highlights what offences have to go to Cps for charging authority.
An Authorising Officer can extend, vary or deem that a condition has been completed where there has been non-compliance.
3.10.3 Options Available Following Non-Compliance
There are 3 options available to the police following notification of non-compliance of the conditional caution. The options together with the appropriate actions are detailed below:
Option 1 Terminate the Conditional Caution and Prosecute the Original Offence The Authorising Officer will:
Record the reasons for their decision on the Athena Case.
The OIC will:
Retrieve the original file, attach the Charge Sheet (if Offender charged), to the file and submit to CJU for consideration of proceedings, or if the offence has to get CPS authorisation under the DPP Guidance on Charging, contact CPSD (if proceedings are commenced then CJU will update PNC);
Complete prosecution task in Athena with ‘Accepted’ to begin the process to prosecute offender for the original offence;
Begin prosecution process through Athena.
Update the victim.
The CJU Finalisations will:
Update the Conditional Caution spreadsheet;
Notify relevant agencies.
Option 2 Consider the Conditional Caution Completed
The Authorising Officer will:
Record the reasons for their decision on the Task raised in Athena.
The OIC will:
Update the Athena record, attach the documentation and file in accordance with Essex Police policy and procedure;
Complete the prosecution task with ‘Rejected’ and add rationale to decision to update Athena with the decision not to prosecute;
Inform the CJU Finalisations that that conditional caution has been completed;
Update the victim.
The CJU Finalisations will:
Update the conditional caution spreadsheet;
Update PNC in accordance with procedures;
Notify relevant agencies.
Option 3 Extend the Completion Date to Allow the Condition(s) to be Fulfilled or Authorise a Variation of the Conditions
The Authorising Officer will:
Record the reasons for their decision on the custody record;
Oversee the completion of the new MG14 ensuring it is signed and completed correctly and follow the procedure as set out in 3.8 of this procedure.
The OIC will:
Complete a revised MG14 and discuss the content with the offender.
Upon agreement to the extension, or variation, ensure the offender signs the form accordingly;
Upload new MG14 onto Athena and amend the details of the conditions and or dates to be met for conditions in Athena;
Email the revised MG14 to the CJU Finalisations;
Update the victim.
The CJU Finalisations:
Update the conditional caution spreadsheet;
Upon receipt of the revised MG14, suitably endorsed by the offender;
Check information as to any changes to the conditions or dates to be met have been correctly updated on Athena;
Notify PNC to amend the end date of the conditional caution;
Notify HMTCS (if compensation is a condition of the conditional caution);
Notify relevant agencies.
Any refusal to agree to the revised extension or variation may result in prosecution for the original offence.
3.10.4 Successful Completion of a Conditional Caution
Where an offender satisfactorily completes the Conditional Caution, the following information will be provided or raised as a task by Athena to the CJU Finalisations:
HMCS, Victim Support, STaRS, RJ Hub will confirm by e-mail;
The relevant treatment agency will notify the successful completion of the conditional caution by email if possible.
Chase OIC for compliance update for local referrals or officer monitored conditions.
Upon receipt of the above the CJU Finalisations will:
Update the conditional cautions spreadsheet;
Update Athena record;
Update the officer in case;
The officer in case will inform the victim.
4.0 Equality Impact Assessment
EIA - pending.
5.0 Risk Assessment
There is not thought to be any risk connected with this procedure.
The following have been consulted during the formulation of this document:
LPA Commanders / Crime Managers
Special Branch / CID
Federation / Unison
H&S / PNC Bureau
7.0 Monitoring and Review
This procedure will be reviewed by, or on behalf of, the Head of Criminal Justice Command every 2 years to ensure that it remains relevant and fit for purpose.
8.0 Governing Force policy. Related Force policies or related procedures
F 0402 Procedure - Conditional Cautioning
8.1 Data Security
Essex Police have measures in place to protect the security of your data in accordance with our Information Management Policy – W 1000 Policy – Information Management.
8.2 Retention & Disposal of Records
Essex Police will hold data in accordance with our Records Review, Retention & Disposal Policy – W 1012 Procedure/SOP - Records Review, Retention and Disposal.
We will only hold data for as long as necessary for the purposes for which we collected. Victims/public should be reminded that Essex Police take the protection of personal data seriously as described in the privacy notice.
9.0 Other source documents, e.g. Legislation, Authorised Professional Practice (APP), Force forms, partnership agreements (if applicable)
Appendix A – The Code of Practice for Adult Conditional Cautions
Appendix B – The Director’s Guidance on Conditional Cautioning