In light of recent reports business crime solicitor Sam Healey considers whether a holistic, rehabilitative approach should be adopted in response to first time offenders facing allegations of indecent images. Or, whether this arguably “softer„ approach to criminal offences is adequately managed by the imposition of a caution in cases of first time offenders. In doing so, Sam considers the consequences of those charged with such offences being issued with a caution.

The BBC recently reported the findings of a new report which suggests that those arrested for viewing indecent images of children, who do not have a criminal record, should undertake “life skills„ courses rather than face prosecution. Such arguments will undoubtedly be met with hostility by some, however will be argued by others to be a step towards tackling the root causes of offending and therefore a steps towards crime reduction.

The report was compiled by campaign group “Justice„ who oppose prosecution in certain circumstances in favour of education, prevention and effective rehabilitation. It is suggested that sessions that focus on strategies to manage behaviour and to provide coping mechanisms would be more effective than punishment alone.

It has however been argued that the proposal is simply designed to reduce prosecutions and thereby have the appearance of reducing crime levels. It is further suggested that such education and support is already in place for those who are arrested and prosecuted and that rehabilitation can be provided in tandem with a punitive element to offending. Arguably those who are arrested for these offences deemed less serious (due to the nature and volume of images) and who are first time offenders, may be offered a caution and therefore avoid prosecution. Is therefore the caution already an adequate means of punishing those who view indecent images who do not have a criminal record?

What is a caution?

A caution is a designed to deliver a swift and proportionate response to “low level offending„, by recording criminal conduct without prosecution. It is argued to reduce the likelihood of reoffending for knowledge that the caution will appear on the individual’s records in any future proceedings.

A distinction should be made between a “simple caution„ and a “conditional caution„. In the latter cases conditions will be attached the caution, proving more onerous.

When is it offered?

A caution will only be offered in circumstances where an offender accepts guilt. In the majority of circumstances a caution will only be offered in cases of first time offending. The decision to offer a caution will not be considered where it is deemed to be in the public interest for the offender to be prosecuted. The following matters will also be taken into consideration:

• The seriousness of the offence. A caution will not be offered for “indictable-only„ offences (cases that would only be sent to the Crown Court), unless there are deemed to be exceptional circumstances relating to the offender of offence.
• Cautions are generally intended for “low level offending„ and the seriousness of the allegations will be assessed as well as any aggravating factors of the case.
• If an individual fails to attend to be cautioned, they will instead be charged with the offence.
• As set out above, a caution will only be offered where an offender accepts guilt. If a person raises a defence or denies an essential element of the offence then a caution is not deemed appropriate.
• Individuals facing allegations of certain specified offences will not be eligible for a caution, unless there are exceptional circumstances. Such offences include firearms and offensive weapons offences, child cruelty, sex offences against children and the importation, supply and production of Class A drugs.

It should be noted that particular care will be exercised by the prosecution when offering a caution to individuals facing allegations of sex offences. As highlighted above, those facing allegations of possession of indecent images of children would not be eligible for a caution, unless “exceptional circumstances„ are deemed to apply. Consideration will be given as to whether, if convicted, the court would be likely to impose a custodial sentence or not. Additionally, concern will also be given to the level of harm and necessary protection to the public.

Can a caution be refused?

Yes, even if the police offer a caution to an individual who has been arrested and caution, the individual retains the right to decline the offer.

What are the implications what do I need to know?

Although accepting a caution may at first glance appear to be an outcome that those facing prosecution would accept without hesitation, careful consideration must be given to the implications, which are serious and can have far reaching consequences, unique to each individual: -

• Owing to an admission of guilt to committing an offence the caution forms part of an offender’s criminal record, which will be retained by the police and referred to in any future legal proceedings;
• A caution may be revealed on a criminal record check and may need to be disclosed if seeking employment with children or vulnerable adults or obtaining certain licences. Cautions will also be disclosed under Disclosure and Barring Service (“DBS„.)
• Fingerprints and a DNA profile will be taken after the caution is issued and retained on police records;

Accepting a simply caution for an offence under the Sexual Offences Act may result in the individual being classed as a “relevant offender„ for the purposes of notification and registration requirements. Some countries may require those travelling to declare cautions on application forms for entry to the country. This will vary from country to country.

It is clear that the implications of receiving a caution are potentially far reaching and onerous. Care must be taken by an individual who has been arrested for possession of indecent images and any other offence, interviewed and offered a caution to consider the impact upon their personal family life, current and future employment and travel.

It is arguable that the punitive nature of the caution and the support currently offered to those first time offenders facing allegations of indecent images is sufficient. It is suggested that dispensing of the current approach, in favour of education and further rehabilitation may be beneficial for tackling root causes of crime and has scope to alleviate pressure on the criminal justice system. However, it shall no doubt be argued by many that proposal would belittle victims of serious offences and call into question whether appropriate action is being taken.