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Cautions

Approving Prosecutions

What is a Caution?

  1. The Home Office Circular 1 'The Cautioning of Offenders' describes a Caution as one appropriate course of action where there is evidence of a criminal offence but the public interest does not require a prosecution. It is sometimes referred to in HSE as a ‘formal caution’.
  1. Cautions are included in the Enforcement Policy Statement (EPS) as one of the possible responses to a criminal offence available to inspectors. A Caution is defined in the EPS2 as:
    "a statement by an Inspector, that is accepted in writing by the dutyholder, that the dutyholder has committed an offence for which there is a realistic prospect of conviction. A formal caution may only be used where a prosecution could be properly brought."
  2. Cautions are entirely distinct from the caution given under the Police and Criminal Evidence Act by an Inspector prior to asking questions of a suspect concerning an alleged offence.
  3. There are two types of Caution:
    • The Simple Caution, which must meet the criteria in The Home Office Circular, the EPS and associated HSE guidance (OC 130/7); and
    • The Conditional Caution, which HSE is not authorised to give. A Conditional Caution must also meet the criteria in the Home Office Circular but it also carries conditions that the offender must comply with. The conditions have the aim of rehabilitating the offender and ensuring that s/he makes reparation for the offence.
  1. HSE expects3 that a repetition of a breach that was the subject of a Caution will normally be treated in the same way as a failure to comply with an Enforcement Notice, i.e. with criminal proceedings.

When a Caution is appropriate

  1. It will be very unusual for HSE to offer a Caution. In order for a Caution to be offered, there will need to be exceptional circumstances, specifically related to the proposed defendant, that outweigh the general public interest factors. If the Approval Officer is satisfied that this is the case, s/he will mark the prosecution papers “not approved, subject to acceptance of a Caution” and set out his/her reasoning.
  2. The Approval Officer will apply the Full Code Test, and will need to confirm whether a prosecution is in the public interest, subject to any such exceptional circumstances identified.
  3. A Caution may only be considered where a prosecution could properly be brought; i.e. the case meets the standard required by the evidential stage. As a result, the existing procedures for considering a prosecution should be followed. Evidence should be obtained and a prosecution report prepared in the usual way.
  4. The views of the victim(s) about the offence should be ascertained (for example, by offering him/her the opportunity to make a victim personal statement; see also HSE’s policy statement on working with victims) in order for the Approval Officer to take those views into account.
  5. The issue of a Caution depends on the alleged offender agreeing to be cautioned. If an offender refuses to be cautioned, a prosecution should normally follow.
  6. A Caution should not normally be used where the offender has already been cautioned, unless there has been a sufficient lapse of time since the previous caution to suggest that it was likely to have had some effect.
  7. You should inform the offender that if they accept a Caution, it may influence a decision to prosecute should they subsequently re-offend. You should also inform the offender that the Caution may be referred to in court if there is a prosecution for any other offence.
  8. The preferred procedure for issuing a Caution is as follows:
    • obtain approval from the Approval Officer;
    • invite the individual or corporate body to attend a meeting to explain how a Caution would be administered and what it would mean;
    • meet with the individual or nominated authorised representative of the corporate body. In the case of the latter, you may wish to request that a letter of authorisation be brought to the meeting;
    • satisfy yourself that the recipient understands the nature of the Caution and the consequences of acceptance, that s/he agrees to the procedure and that s/he admits the offence(s);
    • invite the recipient of the Caution to sign two copies of the Caution and retain one of them.
  1. You should then follow Directorate procedures to record the details of the Caution on the computer database. Further details are given in Operational Guidance (OC 130/7) on ‘Formal Cautions’.

Footnotes

  1. 18/1994
  2. page 4 footnote 1
  3. EPS para 39