Police, Crime, Sentencing And Courts Act 2022

Part 6: Cautions

Section 98: Diversionary and community cautions

1. Section 98 makes provision for diversionary and community cautions.
2. Subsections (2) and (3) state that a diversionary caution may be given by an authorised person to a person aged 18 or over in relation to an offence and a community caution may be given to a person aged 18 or over in relation to an offence that is not otherwise an excluded offence.
3. Subsection (4) and subsection (5)(a)-(b) states that both diversionary cautions and community cautions have conditions attached to them and sets out the consequences of breaching them.
4. Subsection (6)(a) - (c) sets out the meaning of an excluded offence.
5. Subsection (7)(a) – (c) provides the meaning of an authorised person.

Section 99: Giving a diversionary caution

1. Section 99 establishes the process and requirements for giving a diversionary caution, and sets out those requirements at subsection (2)(a)-(e). Those requirements are that an authorised person or prosecution authority decides that there is sufficient evidence to charge the offender with the offence and that a diversionary caution should be given to the offender, that the offender admits the offence and that they accept the caution. An authorised person must explain the effect of the caution to the offender and warn them that non-compliance may result in prosecution for the offence. The offender must also sign a document that contains details of the offence, their admission to having committed that offence and their consent to both being given the caution and the conditions attached to that caution.
2. Subsection (3) limits the ability of the authorised person to give a diversionary caution to an offender when the offence is an indictable only offence unless there are exceptional circumstances relating to the person or the offence and the Director of Public Prosecutions consents to the giving of the diversionary caution. Subsection (4) states that diversionary cautions cannot be given in respect of offences committed before this section comes into force. Subsection (5) makes it clear that the use of diversionary cautions is subject to regulations made in relation to restricting multiple use of cautions.

Section 100: Deciding on the conditions

1. Section 100 sets out what conditions can be attached to diversionary cautions and who sets them. Subsection (1)(a) and (b) state that the conditions attached to diversionary cautions are to be decided by either (a) the authorised person giving the caution or (b) a prosecuting authority that is giving the caution. Subsection (2)(a) – (c) states which conditions may apply to a discretionary caution. Those conditions may be rehabilitation and reparation conditions, financial penalty conditions and the foreign national offender condition.
2. Subsection (3)(a) and (b) and (4) state that when deciding what conditions to attach to a diversionary caution the person giving the caution must make reasonable efforts to obtain the views of any victims, in particular their views as to whether any of the actions listed in the community remedy document ought to be applied and then take those views into account. (Following the introduction of the Anti-social Behaviour, Crime and Policing Act 2014 each police force in England and Wales is required to publish a community remedy document which provides victims with a choice of activities and sanctions for offenders to complete). If the victim or victims select a condition that is listed in the community remedy document, that condition must be attached unless, as provided for in subsection (5)(a) and (b), it is not an action that can be attached as a condition to a diversionary caution, or it would not be appropriate to attach it.

Section 101: Rehabilitation and reparation conditions

1. Section 101 makes detailed provision for attaching conditions to diversionary cautions which must have the objective of facilitating the rehabilitation of the offender and/or ensure that the offender makes reparation for the offence (subsections (1) and (2)). Under subsection (3), these conditions may be restrictive conditions, unpaid work conditions and attendance conditions.
2. Subsection (4)(a) – (d) sets out the details of the activities the offender may be restricted from undertaking if subject to a restrictive condition.
3. Subsection (5) requires the offender to carry out unpaid work of a specified description for no more than 20 hours where there is an unpaid work condition attached to the caution.
4. If an attendance condition is included subsection (6)(a) and (b) require the offender to attend a specific place for a specific purpose, which may not exceed 20 hours where the condition is to make reparation for the offending behaviour.
5. Subsection (7) provides that the offender may be required to pay for the reasonable cost of the provision of education, training or any other service provided to the offender as part of an attendance condition.
6. Subsection (8) states that the maximum number of hours that can be required for the purposes of either unpaid work or attendance conditions can be amended by regulations.
7. Subsection (9) states that conditions authorised by this section may contain details of how the condition must be complied with, including times at which something must or must not be done. Under subsection (9)(b), these details can be provided after the caution has been given. Subsection (10) provides that curfew conditions may not be attached to a diversionary caution. Subsection (11) defines the meaning of ‘specified’.

Section 102: Financial penalty conditions

1. Section 102 establishes how financial penalty conditions can be attached to a diversionary caution. Subsection (1) states that a condition requiring the offender to pay a financial penalty can be attached to a diversionary condition with the purposes of punishing the offender.
2. Subsection (2)(a) – (d) sets out that the condition must specify the amount of the financial penalty, the person to whom the financial penalty must be paid, how it may be paid, and the date before which it must be paid. Subsection (3) caps the level of financial penalty in that it cannot exceed an amount prescribed in regulations.
3. Subsection (4) requires a person, who is not a designated officer for a magistrates’ court and who has received payment of a financial penalty in accordance with a financial penalty condition, to give that payment to a designated officer for a magistrates’ court. This has the practical effect of ensuring that money paid in respect of a financial penalty is received into central funds.
4. Subsection (5) allows 28 days for payment beginning with the day on which the caution was given.

Section 103: Foreign offenders’ conditions

1. Section 103 enables the foreign offenders’ conditions to be attached to diversionary cautions. This condition can only be attached to a diversionary caution given to a ‘relevant foreign offender’, as defined by subsection (4)(a) and (b).
2. The objectives of the foreign offenders’ condition are set out in subsection (2)(a) and (b) and are to ensure that the relevant foreign offender departs the United Kingdom and does not return for a period of time. Subsection (3) makes it clear that the expiry of the period does not give the offender a right to return to the United Kingdom.

Section 104: Variation of conditions

1. Section 104 enables an authorised person or prosecution authority to, with the consent of the offender, vary conditions attached to a diversionary caution by either modifying or omitting any of the conditions under subsection (a) or adding a condition under subsection (b).

Section 105: Effect of diversionary caution

1. Section 105(1) establishes that if an offender to whom a diversionary caution was given does not comply with the conditions attached to this without reasonable excuse, then they may be prosecuted. Subsection (2) establishes that the document signed by the offender as set out in section 99(2)(e) above, in which they accept the caution and the conditions attached to it, is admissible evidence in any such proceedings. Subsection (3) states that the diversionary caution ceases to have effect in the event of any proceedings being started.

Section 106: Arrest for failure to comply

1. Section 106 provides constables with a power of arrest without warrant. Subsection (1) applies when a constable has reasonable grounds for believing that the offender has failed without reasonable excuse to comply with any of the conditions attached to a diversionary caution.
2. Subsection (2) sets out what must happen to an offender arrested under this section. Subsection (2)(a) provides for an offender to be charged with the original offence in respect of which the diversionary caution was given and subsection (2)(b) provides for an offender to be released without charge. Subsection (3)(a) sets out the circumstances where an offender can be released on bail without charge under subsection (2)(b). Where the pre-conditions for bail are satisfied, an offender can be released on bail without charge to enable a decision to be made as to whether the offender should be charged with the offence. Subsection (3)(b) states that, in any other case, the offender can be released without bail, with or without any variations in the conditions attached to the diversionary caution. By virtue of subsection (4), subsection (2) also applies in the case of an offender that returns to the police station having been bailed for investigation and in certain other circumstances where the offender is detained by the police.
3. Subsection (5) states that, where an offender is released on bail under subsection (3)(a), the custody officer must inform the offender that the release is to enable a decision to be made as to whether the offender should be charged with the offence in question.
4. Subsection (6) provides for circumstances where an offender arrested under this section, or any other person in whose case subsection (2) applies, may be kept in police detention in order to be dealt with in accordance with subsection (2) or in order to appoint a different or additional time for answering bail under section 47(4A) of PACE (as modified by section 107). If a person is not in a fit state to be dealt with in these way, they may be kept in police detention until they are.
5. Subsection (7) sets out that the power under section (6)(a) includes the power to keep an offender in police detention if it is necessary to do so for the purpose of investigating whether the person has failed, without reasonable excuse, to comply with any of the conditions attached to the diversionary caution.
6. Subsection (8) makes provision for subsection (2) and (3) to be complied with as soon as practicable.
7. Subsection (9) provides that an offender who falls within subsection (4)(a) or (b) and who is in police detention in relation to a matter other than the diversionary caution, need not be released if the offender is liable to be kept in detention in relation to that other matter.
8. Subsection (10) states that the pre-conditions for bail referred to in this section are as set out in section 50A of PACE.

Section 107: Application of Police and Criminal Evidence Act 1984

1. Section 107 provides that the provisions of PACE set out in subsection 2(a) to (j) apply, with the modifications identified in subsection (3), to offenders arrested for suspected breach of a diversionary caution. This ensures that the diversionary caution operates effectively within the existing framework of police powers. Without this modification, police powers to deal with breaches of a diversionary caution would be limited and this would undermine the effect of non-compliance.
2. The provisions of PACE set out in subsection 2(a) to (i) that apply with modification to arrest for failure to comply with a diversionary caution include an arrest elsewhere than at police station, bail elsewhere than at police station, arrest for further offence, limitations on police detention, custody officers at the police stations, record of grounds for detention, duties of custody officer after charge, responsibilities in relation to persons detained, x-rays and ultrasound scans. Subsection (3) (a) to (e) sets out what the modifications are.
3. Subsections (4) to (7) set out further provisions of PACE which apply to suspected breach of diversionary cautions as they would in the case of a person arrested for an offence, which enables consistency and accountability. They ensure that someone arrested and detained by the police under these circumstances is subject to the same treatment as any detained person, and periodic reviews of their detention are carried out.

Section 108: Giving a community caution

1. Section 108 establishes the process and requirements for giving a community caution and sets out those requirements at subsection (2)(a) - (e). Those requirements are that an authorised person decides that there is sufficient evidence to charge the offender with the offence and that a community caution should be given to the offender, that the offender admits the offence and accepts the caution. The authorised person must explain to the offender the effect of the caution and non-compliance with the conditions attached to it. The offender must also sign a document that contains details of the offence, their admission to committing that offence, their consent to being given the caution and the conditions attached to that caution.
2. Subsection (3) states that community cautions cannot be given in respect of offences committed before this provision comes into force. Subsection (4) makes it clear that the use of community cautions is subject to regulations made in relation to restricting multiple use of cautions.

Section 109: Deciding on the conditions

1. Section 109 sets out what conditions can be attached to community cautions and who sets them. Subsection (1) states that the conditions attached to community cautions are to be decided by either (a) the authorised person giving the caution, or (b) a prosecuting authority that is giving the caution. Subsection (2)(a) and (b) state that conditions authorised by sections 110 and 111 may be attached. Those conditions may be rehabilitation and reparation conditions and financial penalty conditions.
2. When setting conditions subsections (3)(a) and (b) and (4) require that, when deciding what conditions to attach to a community caution, the person giving the caution must make reasonable efforts to obtain the views of any victims, in particular their views as to whether any of the actions listed in the community remedy document ought to be applied and then take those views into account. If the victim or victims select a condition that is listed in the community remedy document, that condition must be attached unless, as provided for in subsection (5)(a) and (b), it is not an action that can be attached as a condition to a community caution, or it would not be appropriate to attach it.

Section 110: Rehabilitation and reparation conditions

1. Section 110 makes detailed provision for attaching conditions to a community caution which must have the objective of facilitating the rehabilitation of the offender and/or ensure that the offender makes reparation for the offence (subsections (1) and (2)). Under subsection (3), these conditions may be restrictive conditions, unpaid work conditions and attendance conditions.
2. Subsection (4)(a) – (d) sets out the details of the activities the offender may be restricted from undertaking if subject to a restrictive condition.
3. Subsection (5) refers to unpaid work conditions under subsection (3)((b), which requires the offender to carry out unpaid work of a specified description for no more than 10 hours, where there is an unpaid work condition attached to the caution.
4. If an attendance condition is included, subsection (6)(a) and (b) requires the offender to attend a specific place for a specific purpose, which may not exceed 10 hours where the condition is to make reparation for the offending behaviour.
5. Subsection (7) provides that the offender may be required to pay for the reasonable cost of the provision of education, training or any other service provided to the offender as part of an attendance condition.
6. Subsection (8) allows for the making of regulations to vary the maximum number of hours that can be required for the purposes of either unpaid work or attendance conditions.
7. Subsection (9) states that conditions authorised by section 110 may contain details of how the condition must be complied with, including times at which something must or must not be done. These details can under subsection (9)(b) be provided after the caution has been given. Subsection (10) provides that curfew conditions may not be attached to a community caution. Subsection (11) defines the meaning of ‘specified’.

Section 111: Financial penalty conditions

1. Section 111 establishes how financial penalty conditions can be attached to a community caution. Subsection (1) states that a condition requiring the offender to pay a financial penalty can be attached to a community condition with the purposes of punishing the offender.
2. Subsection (2)(a) to (e) sets out that the condition must specify the amount of the financial penalty, the person to whom the financial penalty must be paid, how it may be paid, the date before which it must be paid and the consequences of non-payment. Subsection (3) caps the level of financial penalty in that it cannot exceed an amount prescribed in regulations.
3. Subsection (4) requires a person, who is not a designated officer for a magistrates’ court and who has received payment of a financial penalty in accordance with a financial penalty condition, to give that payment to a designated officer for a magistrates’ court.
4. Subsection (5) allows 28 days for payment beginning with the day on which the caution was given.
5. Subsection (6) states that non-payment results in an increase of 50% to the amount payable. Subsection (7) provides for an additional period of 21 days for payment of the increased penalty and also allows for that increased penalty to be registered at a magistrates’ court for enforcement in the same way as if it were a fine.

Section 112: Enforcement of financial penalties: registration

1. Section 112 provides the framework for the registration process for enforcing financial penalties as part of the community caution regime. It enables the chief officer of police to issue a certificate in respect of monies outstanding and registerable under section 112(7). Subsection (1)(a)-(c) states that the registration certificate should contain the particulars of the financial penalty, the outstanding amount, confirm that the amount is registerable for enforcement against the offender as a fine, and the last known address of the offender. Subsection (2) requires this certificate to be sent to the designated officer for the local justice area in which the offender appears to reside.
2. Subsection (3) places duties on the designated officer on receipt of a registration certificate. They must (a) register the amount for enforcements as a fine in the register of a magistrates’ court acting for that area or (b) cause the certificate to be sent to the designated officer for the local justice area in which the offender resides if the offender does not live in their area.
3. Subsection (4) states that the designated officer registering the outstanding amount for enforcement as a fine must give the offender notice of the registration, specify the amount registered and provide the other details set out in the registration certificate. Under subsection (5), any enactment referring to a fine or other sum to be paid following conviction by a magistrates’ court applies in the same way to an amount registered under this section.

Section 113: Enforcement of financial penalties: court proceedings

1. Subsection (1) provides a framework for court proceedings arising from the enforcement of financial penalties. Subsections (1)(a) to (c) applies to those persons against whom proceedings are being taken but who claim (a) not to be the person to whom the community caution was given, (b) to have paid the amount required, or (c) to have a reasonable excuse for not paying. Subsection (2) allows the court to adjourn proceedings on one or more occasions, but for no longer than 28 days in total, to allow a claim to be investigated. Subsection (3) states that the court must accept a claim under subsection (1)(a) or (b) unless, on the balance of probabilities, the claim is unfounded. Subsection (4) provides that, where a claim under subsection (1)(b) is accepted by the court, the condition of the caution requiring payment ceases to have effect. Subsection (5) refers to a claim under subsection (1)(c), which provides that whilst the court must accept the facts claimed as an excuse unless it is shown on a balance of probabilities that the claim relating to those facts is unfounded, the court has a discretion to decide the question as to reasonableness of any such excuse. Subsection (6) provides that, where a court accepts a claim under subsection (1)(c), the court can decide whether the condition of the caution that requires payment of the amount should cease to have effect, be varied so as to reduce the amount or extend the time for payment, or both.

Section 114: Variation of conditions

1. Section 114 enables an authorised person or prosecution authority to, with the consent of the offender, vary conditions attached to a community caution by either modifying or omitting any of the conditions under subsection (1)(a) or adding a condition under subsection (1)(b). Subsection (2) refers to the ability under section 115(2) to rescind a condition imposed under section 110 which has not been complied with and instead attach a financial penalty.

Section 115: Effect of community caution

1. Subsection (1) establishes that if an offender to whom a community caution is given does not comply with the conditions attached to this without reasonable excuse, then they may be not prosecuted. Subsection (2)(a) and (b) provide that in these circumstances, the authorised person or prosecution authority may rescind any conditions not complied with and instead attach a condition imposing a financial penalty under section 111.

Section 116: Code of practice

1. Section 116 makes provision for the Secretary of State to prepare a Code of Practice setting out further detail in relation to the criteria and circumstances for giving diversionary and community cautions.
2. Subsection (2)(a)-(k) sets out the types of matters in relation to which the Code of Practice can include provisions such as the circumstances in which cautions may be given, the procedure to be followed in connection with the giving of cautions, the conditions which may be imposed and the period of time for which they can be imposed, who may give cautions, the form and manner in which they are to be given, the places where they may be given, who the financial penalty should be paid to, arrangements for monitoring compliance with conditions, the circumstances where a power of arrest may arise for non-compliance and who decides how a person should be dealt with under section 106(2) and (3).
3. Subsections (3) to (7) set out the steps the Secretary of State is required to take before the Code of Practice can be made or revised, including publishing the Code of Practice in draft, considering any representations made on the draft, placing it before Parliament and making regulations to commence the Code of Practice. After preparing a draft, this cannot be published or amended without the consent of the Attorney General.

Section 117: Restriction on multiple cautions

1. Section 117 enables the Secretary of State to make regulations that place restrictions on the multiple use of diversionary and community cautions. Subsection (1) provides for regulations to be made to prohibit the giving of either type of caution where a person has already been cautioned on one or more occasions. Subsection (2)(a) – (d) state that restrictions can be referenced by the kinds of caution the person has already received, the number of times they have received cautions, the time period prior to the offending behaviour for which a caution is being considered or the types of offending behaviour for which the offender has already received a caution.
2. Subsection (3)(a)-(c) defines what is meant by ‘cautioned’ as either having received a diversionary or community caution after this Part comes into effect, a conditional caution under Part 3 of the CJA 2003 prior to this Part coming into effect or previously having received any other type of caution prior to this Part coming into effect.

Section 118: Abolition of other cautions and out-of-court disposals

1. Section 118 has the practical effect of abolishing previously existing cautioning regimes and the regime setting out on the spot penalties for disorderly behavior for adult offenders. Subsection (1) sets out that no cautions other than diversionary or community cautions should be given to offenders aged 18 or over who admit having committed an offence. Subsection (2) repeals Part 3 of the CJA 2003 which established the conditional caution regime, and subsection (3) repeals Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 which established the Penalty Notice for Disorder regime. Subsection (4) is a savings provision which has the effect of continuing the operation of the provisions referred to in subsections (2) and (3) in relation to offences committed before this Part comes into force.

Section 119: Consequential amendments relating to Part 6

1. Section 119 and Schedule 11 make consequential amendments to other legislation and repeal certain legislation in consequence of the creation of the diversionary and community caution.

Schedule 11: Cautions: consequential amendments

1. Schedule 11 makes consequential amendments to legislation to reflect the introduction of diversionary and community cautions and that existing cautions will no longer be in use.
2. Paragraphs 1 to 3 amend the Rehabilitation of Offenders Act 1974, which sets out the rules on when convictions and cautions are spent, to remove reference to the cautions that will no longer be in use and to ensure that diversionary and community cautions are included.
3. Paragraph 4 to 7 amend the Bail Act 1976 to ensure that this Act applies to bail granted under Part 6 and to remove reference to bail granted under Part 3 of the CJA 2003 which will no longer be in force.
4. Paragraph 8 amends section 31R of the Matrimonial and Family Proceedings Act 1984, which sets out the prohibition in such proceedings of cross-examination in person of victims by those convicted of offences and refers to convictions including the receiving of cautions. The amendment removes reference to the cautions that will no longer be in use and replaces this with reference to diversionary and community cautions.
5. Paragraphs 9 to 11 amend the Police Act 1997, which sets out the criminal record checking regime, to remove reference to the cautions that will no longer be in use and to ensure that diversionary and community cautions are included.
6. Paragraphs 12 to 19 amend the Police and Criminal Evidence Act 1984, which sets out the framework of police powers, to modify this framework in light of existing cautions no longer being in use and the introduction of the diversionary and community cautions.
7. Paragraphs 20 to 22 amend the Crime and Disorder Act 1998 in relation to youth conditional cautions so that the provisions on the power of arrest for failure to comply with conditions attached to a youth conditional caution without a reasonable excuse refer to the relevant section of Part 6 and not to Part 3 of the CJA 2003 which sets out the conditional caution regime and is repealed by section 118.
8. Paragraphs 23 to 26 amend the Police Reform Act 2002 to remove the provision for granting to specified persons the power to give penalty notices for disorder under Part 1 of the Criminal Justice and Police Act 2001 which is repealed by section 118 of this Act.
9. Paragraph 27 amends section 147A of the Licensing Act 2003 which deals with the offence of persistently selling alcohol to children. The amendment removes reference to the receiving of a penalty under Part 1 of the Criminal Justice and Police Act 2001 which is repealed by section 118.
10. Paragraphs 28 to 30 amend provision in the Courts Act 2003 on the collection of fines in order to replace reference to registration of sums payable in default of a penalty notice for disorder under Part 1 of the Police and Criminal Justice Act 2001, which is being repealed by section 108, with reference to section 95 which deals with registration of unpaid financial penalties.
11. Paragraph 31 makes an amendment to the CJA 2003 to remove a subsection which relates to Part 3 of this Act which is repealed by section 118.
12. Paragraphs 32 amend the provisions of the Offender Management Act 2007 which set out the meaning of "the probation purposes" to remove reference to the cautions no longer in use and to ensure that diversionary and community cautions are included.
13. Paragraphs 33 to 36 amend the Anti-social Behaviour, Crime and Policing Act 2014 to ensure that the provisions on the community remedy document and out-of-court-disposals are modified to reflect the introduction of diversionary and community cautions and to remove references to the cautions which will no longer be in use.
14. Paragraph 37 removes sections 17 and 18 of the Criminal Justice and Courts Act 2015 that refer to restrictions on the use of simple cautions as such cautions will no longer be in use on the basis of section 118.
15. Paragraphs 38 and 39 include consequential repeals resulting from the repeal of Part 3 of the CJA 2003 and Part 1 of the Criminal Justice and Police Act 2001.

Section 120: Regulations under Part 6

1. Subsection (1) sets out that regulations under this Part are to be made by statutory instrument. Subsection (2) states that these regulations can contain different provision for different purposes and can make consequential, supplementary, transitional and transitory provision and savings. Subsections (3) to (5) detail the parliamentary procedure applicable to the making of regulations under this Part.

Section 121: Interpretation of Part 6

1. Section 121 sets out definitions of terminology used in this Part.