On the 30th September 2013 the Ministry of Justice published a press release announcing that ‘simple’ cautions would no longer be available as a form of disposal for indictable only offences (those which are considered the most serious and as such can only be dealt with by a Crown Court). In addition to this, ‘simple’ cautions would also no longer be available for additional offences including: the possession of any offensive weapon; the supply of Class A drugs; and a range of sexual offences against children, including child prostitution and pornography.
The Ministry of Justice also announced that it will conduct a review of all other out of court
disposals including: cannabis warnings; penalty notices for disorder (PNDs); and conditional cautions.
In 2012 there were 493 ‘simple’ cautions given for indictable only offences; 962 for possession of knives; 1,543 for possession of weapons; 7 for child prostitution and pornography; 1,560 for cruelty to or neglect of children; 183 for taking, permitting to be taken or making, distributing or publishing indecent photographs or pseudo photographs of children; 268 for possession of an indecent photograph of a child; 14 for possessing prohibited images of children; and 54 for supplying or offering to supply a Class A drug. This provides a total of 5,084 cautions in 2012 which would be dealt with by a court under the new proposals.
The Secretary of State for Justice and Lord Chancellor Chris Grayling MP said:
“Last year nearly 500 offenders who admitted committing some of the most serious crimes escaped with just a slap on the wrist. Quite simply this is unacceptable and unfair on victims. That is why I am scrapping simple cautions for all of the most serious offences and a range of other offences that devastate lives and tear apart communities.”
“Alongside this, the Home Secretary and I are launching a review into the use of all out of court disposals – their use can be inconsistent, confusing and something the public, and victims, have little confidence in.”
“We are on the side of people who work hard and want to get on; if you break the law you will not escape the law.”
An examination of the comments made by Chris Grayling MP brings to light four issues. The first of which is the insinuation that those 500 people who received cautions for indictable only offences have committed heinous crimes and have not been punished. There are some occasions upon which the use of a caution is questionable, particularly when two cautions were given for rape in 2012.
However, it is likely that those given cautions have committed the least serious form of the offence and been remorseful, admitting guilt at first instance. That is not to say that cautions are appropriate even under such circumstances, for these offences. However the real situation will differ from the Government’s portrayal of the 500 people being those who have committed rape, manslaughter, and robbery and received a slap on the wrist. Some did commit these offences, but the circumstances of the offences are unknown, and the reality is likely to differ from the emotive description used by the Ministry of Justice.
The second point is the claim that cautions are unfair on victims. The criminal law does not exist to appease victims; it is not an avenue of formal retribution or the victims of crime, but the recognition of the individual’s failure to abide by the rules of society as set out by the State.
What is unfair on victims is that they were the victim of the crime, and as such any necessary support should be provided and the criminal process made as comfortable as possible, to help them overcome the injustice they have suffered. The harm caused to the victim should be reflected in the punishment, but it is wrong to think about this in terms of fairness to the victim should this not occur. Victims may get some satisfaction, or feel safer in the knowledge that the person who wronged them has been punished, but should not be the primary purpose of punishment.
Thirdly, the notion that out of court disposals are inconsistent, confusing, and that the public lack confidence in them, is too broad a statement to make without further clarification. Out of court disposals are inconsistent in respect to it being at the discretion of the officer dealing with the offence. It is right that consistency of punishment for similar offences should be championed in the interests of fairness; if a review reduces inconsistency then this should be welcomed.
If the range of disposals is confusing, then surely the Government is obliged to better explain what they are and how they are used. If the review results in the abolition of current disposals and the creation of new ones, then I fail to see how this will reduce confusion. If the current measures are ineffective then there lies a reason for change, as the time spent explaining the new measures will hopefully be justified by improved outcomes.
Following on from the last point, it may be difficult for the public to have confidence in something which they do not have an adequate understanding of. The Ministry of Justice’s own rhetoric is also unhelpful in the way it describes the use of cautions for rapists and robbers as a slap on the wrist, will inevitably damage public confidence in the system.
The final point made by Chris Grayling MP, that if you break the law you will not escape the law, operates under an assumption that receiving a caution is equivalent to having gotten away with it. This is not true, it is not as serious as having been sentenced at court, and contains no punishment, but the offender has not ‘escaped the law’. What Chris Grayling means is that they have escaped punishment, and perhaps more importantly the public ritual of censure which is conducted by a court.
In addition to the comments made by Chris Grayling MP, the Policing and Criminal Justice Minister Damian Green MP stated:
“It’s time we get tough - that’s why we are seriously clamping down on the use of simple cautions and reviewing all out of court disposals. We need to sort this out once and for all if the
public and victims are going to have confidence in the criminal justice system.”
“Simple cautions can be an appropriate way for the police to deal with low-level offending. However they are not suitable for criminals who commit serious offences like rape or robbery which can ruin victims’ lives.”
Is a tough criminal justice system the only kind in which the public, and victims can have confidence? From these comments it would appear so, differing in message from the rehabilitation revolution promised by former Secretary of State for Justice Ken Clarke MP. The question which must be asked is: how does one judge the success of a criminal justice system? If it is through incapacitation to protect the public then a more punitive system would inspire more confidence. Or is it that the system provides punishment whilst also offering opportunities for reform which reduce future reoffending? The latter is preferable but until the public have confidence that rehabilitative measures are effective, politicians will continue to play on their fears and promise harsher punishments to protect the public. In practice a more nuanced approach is required which incapacitates the dangerous and reforms those who are capable of being rehabilitated, a difficult task and one which is not aided by politicians’ tough rhetoric on punishment.