How the use of Cautions can persuade innocent suspects to admit guilt, and affect those suspects for life
By David Wacks (CRB Problems Ltd).
‘Better education and fair funding could help minimise miscarriages of justice even without major changes to the law’
These comments relate specifically to the law and procedures in England and Wales rather than in Northern Ireland or Scotland.
Cautions, a type of Out of Court Disposal, are criminal sanctions which can be issued by the Police, rather than the Courts. They are particularly useful in dealing with low level crime speedily and much more cheaply than charging a suspect and taking them to court. They will mostly affect people less adversely than if found guilty at Court and avoid adverse publicity, which attending court can result in.
However, Cautions are criticised by some as too lenient, and not as effective in deterring crime as bringing criminal charges. On the other hand a tick box approach to “resolving” crime by out of court disposals can result in suspects being persuaded to admit guilt, thinking that it is just “a slap on the wrist,” and in order to get out of the Police station. For this reason, Cautions, while useful, can contribute to innocent people admitting guilt. This is important, since although a caution is not a criminal conviction, it can have significant adverse consequences on a suspect’s life through showing on both standard and enhanced Disclosure and Barring Service (DBS) checks (for some more discussion of the potential adverse impacts of accepting a caution, see here).
There are a variety of Out of Court Disposals each with differing legal consequences but in this article consider only Police Cautions.
Protections for Defendants: Informed Consent, Duty Solicitors and Appropriate Adults.
There are a number of safeguards in place to stop innocent defendants accepting cautions and to ensure suspects are appropriately informed. Every Caution must be signed by the suspect, who must admit guilt to receive it and avoid prosecution. In 2013, the High Court declared that in order to be valid, the Caution itself must clearly set out the long-term consequences of accepting it and as a result all the Police Forces in England and Wales updated the warnings as to the consequences of signing.
Arrested suspects should also be offered the benefits of a free legally aided duty solicitor who can attend at the police interview and subsequently advise the suspect as to whether or not to sign any Caution offered or refuse it and possibly be charged.
Quite separately, suspects under the age of 18 must have an Appropriate Adult with them to advise the suspect and countersign the Caution Form. This adult can be a parent or solicitor or another independent person. An appropriate adult may similarly be needed for other vulnerable suspects, for example a suspect who is blind, illiterate, does not read English or has some mental health problem.
However, despite these safeguards there remains a significant risk that innocent suspects will accept Cautions both due to a lack of understanding and due to incentives making accepting a Caution a logical thing to do even when innocent.
Pressure to Accept a Caution
Even after amendments to the warnings given on Cautions they are still difficult to understand in full. Most people arrested for the first time are terrified at the potential consequences if they are proceeded against and just desperate to get out of the Police Station (which they may only be able to do if they are willing to ‘admit’ guilt and accept a Caution). Individuals are advised they can get a duty solicitor but despite this being legally aided and free of charge, a significant minority still refuse this, often telling us subsequently that they did not realise it was free.
If they do ask for a duty solicitor, suspects often ask how long it would take to get the solicitor and especially for those arrested at night they are often given to understand it could take a few hours and many then agree to be interviewed by themselves.
After an interview the Police may advise that “because it is a first offence,” that they will not charge them and that if they sign a Caution it would just be a “slap on the wrists.” The individual frequently agrees to do so and is often so stressed and desperate to get out that they don’t read the warnings properly but just sign where pointed to! The regularity of the reference to a “slap on the wrist,” was emphasised when a Latvian client who when asked by us what was said to him to persuade him to sign the Caution, said he was told it was just a “hit on the hand,” obviously translating the phrase but remembering that translation.
Even where a duty solicitor is called, many do not understand all the long-term consequences of signing a Caution. This area of law falls between the criminal law and civil law and trainee lawyers are rarely if at all told of these complications and are often just anxious to save the client from being arrested. Many may be unaware of the option of downgrading an offer of a caution to a Community Resolution which has much fewer consequences, and the Police themselves do not consistently offer this option.
The warnings even on updated Caution forms are very legalistic and difficult to understand in full by most suspects. This is even more true for those for whom English is not their original language or those who may be dyslexic, illiterate or suffering from a mental health issue. There have been improvements to Police training but it is by no means perfect and more use needs to be made of health professionals to assess the suspects’ state of mind and mental capacity before proceeding to an interview let alone asking them to sign a Caution.
In some cases, Police may deliberately or recklessly mislead suspects, but probably more often mistakes can be caused by a lack of training and guidance or a lack of time. For example, in one case I know of, a 15 year old pushed her mother away when she tried to take the cigarettes they found her with, shortly after the grandmother’s death from lung cancer. The father called the police just to scare her but was then called as the Appropriate Adult even though he was not independent. Generally a bit of common sense should have persuaded the Police that a Caution was disproportionate even if guilty and by applying the Public Interest Test they could have downgraded their approach, but the child ended up admitting guilt and being cautioned. This kind of situation is not unusual. In a leading High Court Judgement on the use of Cautions, the Judge, in setting aside a Caution for assault, acknowledged that the Police were not being malicious in offering a Caution. They had a lot of calls on their time, especially on a busy weekend meaning that balanced judgments could not always be made. However, the judge also acknowledged that such mistakes should be rectified.
When we are helping clients who have received cautions, we always seek to emphasise that the client is not seeking to punish officers for any mistakes, but just to rectify any mistakes that have been made and that even where a Caution is deleted, the Police still have other options to protect vulnerable people.
One other practical area for mistakes is charging with an incorrect offence. Often solicitors don’t wait to explain the Caution warnings to the client and the Police should therefore provide a copy of the draft to explain to the client and also to make clear exactly what the Caution will be for eg ABH rather than Common Law Assault (Battery).
The mistaken use of ABH for minor assaults is the biggest mass mistake in the use of Cautions. Legally, it can be argued that ABH can be used even for minor assaults but for the last 25 years the CPS have issued periodic guidance that ABH should only be used for more serious injuries. In fact, up until the filtering rules came into force 6 years ago the effect of wrongful use was minimal. However, now, under filtering, a Caution for common assault will be filtered after 6 years but a Caution for ABH only when you reach 100. In addition, even spent and filtered Cautions can affect you as they still prejudice you getting a visa to travel even for a holiday, let alone on business- unless the caution can be deleted.
Other Pressures to Accept Cautions
Sometimes and with the best legal advice a client is so terrified of being charged that they agree to sign a Caution even after the Solicitor has advised them that there was definitely no crime! For example, one client was desperate to avoid publicity and the risks of going to court but contacted us years later when she found that she could not get work because of this caution for (allegedly) having an offensive weapon with intent to cause harm. My client was returning home on the motorway with one of her friends both still dressed up after a fancy-dress party. The motorway was bumper to bumper in all 3 lanes and with them in the middle lane. In the inner lane was a lorry driver who noticed their outfits, rolled down his window, pointed 2 fingers at my client and shouted “bang , bang!” My client pulled out her bright plastic water pistol pointed it at him and shouted the same back. She ended up being arrested at gunpoint and taken to the police station where she felt so frightened she signed the Caution just to get home! It can be appreciated that there was pressure to get a result and thankfully we were able to get this Caution removed, but the client should never have been given a Caution. Only a few years ago, President Obama’s security picked up a mechanical clock a schoolboy had made and sent as a present. The boy was arrested as a precaution, but as soon as the President heard he arranged for all potential charges to be dropped and for the boy and his family to see him in the Whitehouse to encourage his enterprise. This shows the ability of those in authority to turn what could be embarrassments into positive PR, something that could help the Police increase trust.
There will always be pressure on the Police to dispose of matters promptly and at times when they are rushed off their feet. Likewise, duty solicitors have many calls on their time especially with the low rates for duty solicitor work, but there does need to be a balance between protecting the public and not risking destroying an innocent person’s career. Some better education for both police and solicitors and fair funding for both could help minimise miscarriages of justice even without major changes to the law.
David Wacks practised as a solicitor in practices dealing with both civil and criminal work before retiring from private practice 9 years ago and establishing CRB Problems Ltd ( crbproblems.co.uk) to deal with such matters. © 2021.
For more information on our data and research on incentivized admissions: https://evidencebasedjustice.exeter.ac.uk/current-research-data/incentivized-admission/