On the 14th November 2013 Chris Grayling, the Justice Secretary, set out plans to legislate for the banning of police powers to give a second simple caution for a similar offence occurring within two years of the first. Guidelines stating the same have come into effect immediately with legislation expected to follow in 2014.
The new guidelines have come following a review of police cautions and are estimated to affect 5,000 out of 165,000 cautions issued each year. The only exemption to the new rule is in the event of ‘exceptional circumstances’ occurring in which case it must be signed off by a police inspector.
Chris Grayling claimed that the new guidelines demonstrated that the Government is “working with the police to make sure people who break the law will not escape the law.” Whilst a Ministry of Justice review found that although cautions were in general being used appropriately, there is widespread concern amongst the public that criminals were escaping proper justice.
If this opinion were to be accepted then it would lead to a definition of ‘proper justice’ as justice which comprises some form of punishment, or more crudely, the infliction of suffering. A caution can be viewed as a form of censure handed out by a person of authority representing the law (a police officer); albeit a lesser form of censure as they do not have the symbolic significance of the judge and a court room with which to convey societal disapproval of the wrongdoing. This is arguably appropriate if the offence committed is not so severe as to warrant action in excess of a caution, then the censure handed out need only be comparably severe.
Therefore, is the removal of repeat cautions for similar offences justified in terms of providing appropriate censure for the offence? Say an individual commits an offence and receives a caution as a form of disposal, what if six months later they were to commit an identical offence; the way in which the offence was committed and the harm caused by the offence are the same. Assuming that a proportionate response to the first offence was indeed a caution, a more serious response to the second would be disproportionately severe based on identical circumstances.
However, the offender is more culpable for the second offence because they have already been censured for the first. The leniency demonstrated in dealing with the first offence as a possible error of judgment should not be granted twice as the offender has already received a warning as to the unacceptable nature of their behaviour.
The offender has already received censure and proven that censure is ineffective in the absence of punishment to reinforce it. It is arguably for this reason that traditionally with each repeat offence the sentence passed in court is more severe to reflect the failure of the offender to learn from their past misdeeds and amend their behaviour.
Damian Green, Minister for Policing, claims that the changes are necessary, stating:
“The current police guidance for dealing with crimes on the spot has evolved over time and is totally disjointed – no wonder we see a dramatic variation in their use. That is why we are clamping down on the use of cautions and reviewing the whole spectrum of out-of-court disposals so we have clarity and consistency.”
Clarity and consistency are certainly desirable particularly if a proportionate response to crime is to be achieved across all cases. However a more severe approach could arguably result in punishments which are too harsh being awarded consistently and as such consistency is not beneficial in its own right. Although these changes
increase the consistency of approach to types of offending, the use of cautions will remain largely discretionary.
The issue also transcends the theoretical as political rhetoric continues to be victim focused. Chris Grayling said:
“There are a small group of persistent offenders who commit the same offences time and time again, some of whom rack up a string of cautions. This does not deliver justice for victims.”
Whilst Damian Green stated:
“[M]ost importantly we have a system that victims and the public have confidence in.”
Under the new system Magistrates and victims’ groups will have the power to review the police’s use of cautions and make a complaint to the police where necessary. Presumably the idea behind this measure is that it provides the victims and the public with a say through victims’ groups and the magistracy (so far as they represent the public) respectively. Confidence in the system can then be inspired through inclusion in its operational review processes. Furthermore it makes the police, at least in part,
directly accountable to the victims and the public as represented by the magistracy.
One may also take issue with Damian Green’s assertion that victim and public confidence in the system is the most important thing, it is certainly important but perhaps not the most important. The best that one could argue is that the confidence of the victims and the public is a measure by which the quality of the system can be judged, a just and efficient system should breed confidence, but one must ask: confidence to what end?
If the aims of the criminal justice system and the desires of the public are not aligned then should the system be changed to reflect the wishes of the public, or should the government attempt to educate the public to increase their confidence in the system as it stands? Herein a further problem presents itself, if we accept that the purpose of the criminal justice system is to protect the public and punish offenders, there are many ways in which these can be achieved, and unfortunately the current consensus amongst politicians and the media is that public confidence can only be increased by making the system more punitive.
From this comes a further criticism of the banning of cautions, which is the strain this will put on the courts and in some circumstances the prison service. The change means that 5,000 extra cases will have to go through the courts each year with a percentage of those offenders inevitably receiving custodial sentences, thereby increasing the already ample prison population. To justify a measure in principle does not always mean it is justifiable in practice, although one would hope that the majority of those additional cases would not result in custodial sentences. It will be interesting to see whether a more punitive approach will lead to a decrease in the incidents of repeat offending amongst those affected or whether increasing criminalisation will have more adverse consequences.