Controlling Cautioning Practice and Police Discretion

Abstract

The police caution is now the predominant means of dealing with young offenders outside the formal court system in England and Wales. In 1994, 95 500 young people under the age of eighteen were cautioned by the police for indictable offences compared to 40 300 found guilty in court. A formal caution can have serious implications: it is recorded by the police, and may be taken into account in subsequent police decision-making. It is citable in court and can be subject to judicial review (Evans, 1996). Despite this, the historical legacy of the police’s claim of common law discretion in deciding when not to invoke the full processes of law means that the system of police cautioning has always operated on a non-statutory basis. Police cautioning has remained largely unaffected by the creation of the Crown Prosecution Service (CPS), as the CPS has no formal power to review or alter cautioning (i.e. non-prosecution) policy or practice. Instead, oversight of the cautioning system is the responsibility of the Home Office. The Home Office’s initiatives have evolved around the setting of policy objectives, promoting national standards for cautioning practice and closer monitoring of caution decisions. In theory, this should lead to police decisions which are impartial, more consistent and open both to police managers and other agencies.