What is a caution?
1. A simple caution (once known as a formal or police caution) is a formal warning that may be given to persons aged 18 or over who admit to committing an offence. The simple caution scheme is designed to provide a means of dealing with offending without a prosecution when there is evidence of an offence but the public interest does not require a prosecution.
2. Cautions are included in the Enforcement Policy Statement (EPS) as one of the possible responses to a criminal offence available to inspectors. A simple caution is defined in the EPS 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 simple caution may only be used where a prosecution could be properly brought."
3. Cautions are entirely distinct from the caution given by an Inspector under the Police and Criminal Evidence Act 1984 prior to asking questions of a suspect concerning an alleged offence.
4. There are two types of caution
- The simple caution, which must meet the criteria in the EPS and associated HSE guidance (OG 00018) and;
- The conditional caution, introduced by the CJA 2003, which HSE is not authorised to give. A conditional caution must be given in accordance with the Code of Practice1 and 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.
5. HSE expects2 that a repetition of a breach that was the subject of a simple caution will normally be treated in the same way as a failure to comply with an Enforcement Notice, ie with criminal proceedings.
When a simple caution is appropriate
6. It will be very unusual for HSE to offer a simple caution. In order for a simple 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 simple caution" and set out his/her reasoning.
7. 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.
8. A simple caution may only be considered where a prosecution could properly be brought; ie 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. A clear and reliable admission of the offence must be obtained before a simple caution can be considered.
9. The views of the victim(s) about the offence and the proposed caution 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.
10. The issue of a simple caution depends on the alleged offender agreeing to accept the caution. If an offender refuses to accept the caution, a prosecution should normally follow.
11. A simple caution should not normally be used where the offender has previously received a caution, unless there has been a sufficient lapse of time since the previous caution to suggest that it was likely to have had some effect.
12. The implications of accepting a simple caution should be provided in writing to the offender and time allowed to consider, and, if need be, take legal advice on the matter. The offender is entitled to disclosure of evidence before agreeing to accept a simple caution3.
13. You should inform the offender that if they accept a simple caution, it may influence a decision to prosecute should they subsequently re-offend. You should also inform the offender that the simple caution may be referred to in court if there is a prosecution for any other offence.
14. The preferred procedure for issuing a simple caution is as follows:
- obtain approval in writing from the Approval Officer and a more senior manager;
- invite the individual or corporate body to attend a meeting and explain in writing how a simple 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 simple 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 simple caution to sign two copies of the simple caution and retain one of them. The documents must also be signed by the Inspector issuing the simple caution.
15. You should then follow Directorate procedures to record the details of the simple caution on the computer database. Further details are given in Operational Guidance (OG 00018).