Simple Cautions: HSE guidance
Formerly OC 130/7
This guidance replaces OC 130/7 it provides practical advice for inspectors in England and Wales when considering the issue of a simple caution in the exceptional circumstances set down in the HSE policy on cautions. Inspectors in Scotland should neither issue nor recommend them.
This guidance should be read in conjunction with guidance (currently OC 130/6) which gives advice on the HSE Enforcement Policy Statement (EPS).
Simple cautions were formerly known as formal cautions.
The EPS acknowledges the simple caution as an important method of bringing dutyholders to account. The Ministry of Justice guidance – Simple Cautions for Adult Offenders describes a simple caution as an alternative means for dealing with low-level, mainly first time offending when specified public interest and eligibility criteria are met. The aims of the simple caution are, amongst others:
- To offer a proportionate response to low level offending where the offender has admitted the offence;
- To deliver swift, simple and effective justice that carries a deterrent effect; and
- To reduce the likelihood of re-offending;
This guidance sets out how a simple caution should be administered and states the criteria for its issue, namely that it depends on:
- the offender making a clear and reliable admission of the offence before a simple caution can be offered;
- a realistic prospect of conviction if the offender were to be prosecuted in line with the Code for Crown Prosecutors; and
- the offender agreeing to receive a simple caution.
Since the EPS indicates that HSE prosecutions are taken where the risk, breach and outcome are usually serious, a simple caution is not normally appropriate in circumstances where an HSE case could be properly brought. In particular it should not be used as a 'let off' where there are some mitigating circumstances, where there is doubt about the 'public interest', or where either the prosecutor's office or the court is 'too busy'.
Also, it should not be confused with other forms of formal or informal warning.
Confirming a simple caution is appropriate
The EPS expects that a simple caution may only be used where a prosecution could be properly brought. It is therefore important that, before even considering if a simple caution might be appropriate, inspectors follow existing procedures for considering prosecution. Evidence should be obtained and a prosecution report prepared in the usual way with full evaluation of the evidence and possible charges. Particular attention should be paid to the views of victims and the content of any Victim Personal Statement. Prosecution approving officers should confirm that the case meets the evidential test. In addition, they need to confirm that, apart from the exceptional circumstances described below the public interest is in favour of prosecution. This confirms that a case could be properly brought,
Such exceptional circumstances may be specific, personal and very exceptional factors which outweigh the general public interest factors. Examples include; when a court appearance would be likely to have a seriously adverse effect on a victim's health, or the accused is elderly, or was suffering significant physical or mental ill health at the time of the offence. These considerations need the careful application of judgement because there may be cases which are so significant that a prosecution is warranted despite such factors being present.
If, because of these exceptional circumstances, the approving officer considers an alternative to prosecution may be appropriate, then a simple caution may be an option. In such a case the reasons for considering the offer of a simple caution should be explained in the prosecution papers and the case file passed to the approving officer's line manager for authorisation.
Since a simple caution should only be used in rare and exceptional circumstances it is particularly important that full consideration is given to the matter and that HSE is seen to be consistent in its approach. A decision to issue a simple caution should not therefore be taken without prior written authority of a senior officer, e.g. the approving officer's manager, who may wish to discuss with their directorate legal section (this refers to the usual contact within directorates for discussion of legal matters) before authorising a caution.
If a simple caution is authorised, the prosecution papers should be returned marked as 'not approved, subject to acceptance of a caution' and the investigating inspector should be instructed to proceed with offering one.
The Ministry of Justice guidance states that the issue of a caution depends on the offender agreeing to being cautioned. If an offender refuses to agree a caution by failing to sign the 'standard' document (see Appendix 1),prosecution should normally follow immediately. The prosecution approving officer should arrange for the file to be brought forward in one month to confirm that the information can be signed off as 'not approved', or to approve the prosecution.
A simple caution should not generally be considered where the offender has received a caution in the past. Multiple cautioning brings this disposal into disrepute. Cautions should not be administered to an offender in circumstances where there can be no reasonable expectation that this will curb their offending. More than one caution should be considered only where there has been a sufficient lapse of time since the first caution to suggest that it had some effect. Repeat cautioning should be a very rare occurrence.
The issue of a simple caution may be considered as an aggravating factor, for the purposes of a subsequent prosecution.
Simple cautions are subject to the Rehabilitation of Offenders Act 1974, as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. From 10 March 2014, simple cautions have been deemed “spent” at the time the caution is given. Therefore HSE is not entitled to make details of a simple caution publicly available, nor refer to it in proceedings without the permission of the court or judge.
Cautioning in person
This may be the preferred option when the person being cautioned is an individual but could also be used for bodies corporate, where we might want to see a director (or equivalent) face to face.
A manager, in consultation with the inspector, may decide that a simple caution should be issued personally because of the impact it will have on the particular organisation or individual, or because it may allow more effective communication with the offender. In some cases it may be appropriate for a senior officer e.g. above the level of the approving officer to meet with the offender.
The model letter (Appendix 2) should be adapted to invite the relevant person to attend a meeting with HSE so that the implications of accepting a simple caution can be explained. The recipient should be invited to have a legal adviser present while the caution is offered.
The person administering the caution should satisfy themselves that the recipient understands its nature, the consequences of acceptance, agrees to the procedure and admits the offence(s). It should be explained that the caution may influence the decision to prosecute should the recipient subsequently re-offend. The offender should be invited to sign 2 copies of the simple caution and to retain one of them.
Service by letter
A covering letter (adapted from Appendix 2) should be sent to the offender offering the simple caution procedure as a means of dealing with the alleged offence(s). The letter advises of the consequences of acceptance and seeks the offender's agreement to the procedure and admission of the offence(s). Appendix 2 may be adapted to suit particular situations.
A letter to a company should be taken or posted to the company's registered office (if in the UK) or any place in the UK where the corporation trades or conducts its business. It should be addressed to the managing director or company secretary. If the registered office is not the place where the MD or company secretary are likely to be found, inspectors are advised to copy the offer of a simple caution to the address at which they expect the MD to be. Where a board of directors does not exist (e.g. a university or local authority) the letter should be copied to a person of equivalent standing.
A nominated, appropriately responsible individual should be asked to receive the simple caution on behalf of a corporate offender. In the case of a company, the individual should be authorised by the board of directors to accept service (the caution should, of course, be recorded against the company and not its representative).
The offender should be asked to sign both copies of the caution, retain one and return the other to HSE within 14 days (although in exceptional circumstances a longer time period may be appropriate). The original signed caution should be retained with other dutyholder records.
Failure to accept a caution
Failure to accept a simple caution within the specified time limit should result in the institution of legal proceedings. The file should be returned to the approving officer with a recommendation to this effect.
Recording of a simple caution
The value of properly recording a simple caution is that it can be taken into consideration in the event of further offences (related or not) by the same dutyholder.
Further, while a simple caution cannot be formally cited in court as a previous conviction, where relevant to subsequent offending, it may be appropriate to bring it to the attention of the court. This could be done by handing up a record, clearly indicating that the caution was spent and, if relevant, asking permission to refer to it at a sentencing hearing.
Inspectors should follow directorate procedures to record the details of simple cautions and store the caution documents with dutyholder records.
Legal and Enforcement Team