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Legal Aid, Sentencing and Punishment of Offenders Act 2012

Section 133: Conditional cautions: involvement of prosecutors

728.Section 133 amends sections 22 to 25 of the 1991 Act. The section enables the authorised person (usually a police officer) to make a decision to offer a conditional caution by removing the requirement that, before the authorised person can offer a conditional caution to an offender, they must refer the matter to the relevant prosecutor (usually the Crown Prosecution Service) to decide that there is sufficient evidence to charge the offender with the offence, and that a conditional caution should be given. The section enables those decisions to be taken by the authorised person without reference to the relevant prosecutor.

729.Section 133 also enables the authorised person to vary conditions in the conditional caution without reference to the relevant prosecutor. The other requirements for a conditional caution remain unchanged, including that the offender admits that they committed the offence and that they consent to being given a conditional caution.

730.The intention is that the Code of Practice issued under section 25 of the 1991 Act or guidance will specify those matters that should still be referred to the relevant prosecutor for a decision about whether a conditional caution should be given or to vary conditions.

Section 134: Conditional cautions: removal etc of certain foreign offenders

731.Section 134 amends section 22 of the 1991 Act so as to make available new types of conditions that can be attached to a conditional caution given to an offender who is a foreign national and who does not have leave to enter or remain in the United Kingdom. The object of these conditions is to bring about the departure of the foreign offender from the UK and ensure that they do not return to the UK for a period. These conditions may be attached to a conditional caution, whether or not it is in addition to a condition with one or more of the existing objectives in section 22(3) of the 1991 Act (namely facilitating the rehabilitation of the offender; ensuring that the offender makes reparation for the offence; or punishing the offender).

732.This section also defines the category of foreign offenders who could be offered such conditions as those offenders whose immigration status makes them liable for removal from the UK. This means a person who has no leave to enter or remain in the UK and in respect of whom there is a power to enforce their departure from the UK. As with all conditional cautions, the offender must admit the offence and agree to accept the conditional caution.

733.If the foreign offender does not comply with these conditions he or she may be prosecuted for the original offence.

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