What are the new Diversionary and Community Cautions and how will they affect you?

If you have ever been involved in a minor criminal offence, such as shoplifting, assault, public order issues, criminal damage, or drug possession, you may have been offered an out of court disposal (OOCD) by the police. An OOCD is a way of dealing with low-level offending without going to court, which can save time and money for both the police and the offender. However, the government concluded that the current OOCD system was complex and inconsistent, with six different types of disposals available, such as community resolutions, penalty notices for disorder (PNDs), and conditional cautions. This was claimed to have caused confusion and variation in how different police forces use them and how they affect someone’s criminal record.

To address these alleged issues, the government has introduced a new statutory two-tier framework of OOCDs, which will replace the existing ones. The new framework consists of two types of cautions: the Diversionary Caution and the Community Caution. These cautions are in reality very similar to the existing simple and conditional caution framework, but with some differences, which in practice, may not make them very different to the old conditional and simple police caution system.

The new framework aims to simplify and standardise the OOCD system, to ensure that low-level offenders are dealt with in a consistent and proportionate way across the country. It also aims to provide more opportunities for offenders to address the underlying causes of their offending behaviour and to make amends to their victims and communities.

We will look at some of the key differences and similarities between the old simple and conditional caution system, and the new Diversionary and Community Cautions.

It should be noted that the Diversionary and Community Cautions regime has not yet been implemented, and will come into force when the government passes regulations bringing the scheme into action. Up until the new regime comes into effect, the police will continue to issue simple and conditional cautions, and PNDs.

No, your simple or conditional caution, including both adult and youth cautions, will remain on the PNC until you reach 100 years of age, unless you get it deleted.

The Diversionary Caution is the upper-tier disposal, which can be used for any offence, except for “excluded offences”, unless approved by an officer of at least Inspector rank. There is a full list of excluded offences but generally they relate to the following offences:

• Offensive weapon and bladed article offences
• Carrying a firearm in a public place
• Child cruelty
• Sexual offences against children (including those relating to child prostitution and pornography)
• Sex-trafficking offences
• Indecent and pornographic images of children
• Importing, exporting, producing, supplying and possession with intent to supply to another Class A drugs

The Diversionary Caution requires the individual to accept responsibility for the offence and to comply with certain conditions attached to the caution. These conditions may include paying compensation to the victim, attending a rehabilitation programme, or doing unpaid work. If the person fails to comply with the conditions, they can be prosecuted for the original offence. The upper-tier Diversionary Caution is intended for more serious offences, but where the police believe the public interest can best be served through prosecuting breaches of conditions, rather than going straight to court. If the conditions are broken the police have a power of arrest and detention.

The Community Caution is the lower-tier disposal, which will be used for less serious offences and cannot be given for “indictable only” offences, or offences that are “excluded” offences. It also requires the offender to accept responsibility for the offence and to comply with certain conditions attached to the caution. These conditions may include apologising to the victim, repairing the damage caused, or participating in an educational activity. If the offender fails to comply with the conditions, they can be issued with an increased financial penalty, up to £150, which can be enforced by the court. The main difference with the community resolution and the diversionary caution is that the community caution is a “case ending disposal”, as once it has been issued, there will be no subsequent prosecution at court for the original offence, even if the conditions are not complied with – the most the police can do is enforce the fine. There is no power of arrest for non-compliance with the conditions.

The government guidelines highlight that the key difference between the Diversionary and Community Caution is the consequences for breaching conditions. Generally if the police think that the person doesn’t merit the possibility of prosecution, due to the nature of the case, then a Community Caution will be issued, but where the case is more serious, a Diversionary Caution will be issued.

Although the stated aim of the Diversionary or Community Caution regime is to reduce the police’s OOCD options to two, the draft guidelines states that Community Resolutions will continue to exist.

Community Resolutions are issued for low level incidents, including neighbour disputes and low antisocial behaviour, and generally speaking, are not recorded on the PNC, meaning they will not automatically trigger a disclosure on a DBS check – although they can still be revealed on an enhanced DBS certificate.

The draft Diversionary and Community Caution guidelines states that the police should ask themselves the following questions to decide if a Community Resolution is more suitable than a Diversionary or Community Caution for a minor offence:

1.  Would a Community Resolution adequately address the behaviour?
2.  Is it in the public interest to enforce the matter with a Community Resolution?
3.  If applicable, does it meet the needs and wishes of the victim?
4. If the recipient does not comply with any or all conditions, is it acceptable that no enforceable action could be taken?

If the answer is yes, and the case is in line with the current Community Resolutions Guidelines, then a Community Resolution should be issued instead of a Diversionary or Community Caution.

Before a Diversionary or Community Caution can be issued, the police must first determine whether a suspect is eligible.

The key criteria are that:

• There is sufficient evidence to support a prosecution, and that the public interest would be better served via a Diversionary or Community Caution.
• That the individual admits the having committed the offence.
• The individual consents to being given a caution, and understands all the implications that accompany it (including the fact that it will be recorded on the PNC), and the fact that failure to comply with any of the conditions may, in the case of a Diversionary Caution, result in prosecution, or in the case of a Community Caution, subsequently result in a financial penalty.
• A form must be signed acknowledging guilt, and accepting the consequences and conditions of the caution.

Diversionary cautions can be issued for cases that are defined buy the police as including, domestic abuse.

The definition of “domestic abuse” is defined in the Domestic Abuse Act 2021. In general terms it entails abuse of a person over the age of 16, where they are “personally connected”, and may consist of behaviour including:

• Physical or sexual abuse
• Violent or threatening behaviour
• Controlling or coercive behaviour
• Economic abuse
• Psychological, emotional, or other abuse

Specifically tailored conditions will be implemented for cases of domestic abuse that must include rehabilitative elements, including principles and processes of motivational interviewing, peer support, peer challenge, victim focus, offender focus, rapport, non-shaming, listening, and questioning.

Along with the need for there to be:

• Sufficient evidence to support a Diversionary or Community Caution.
• An admission to the offence.
• Consent to the caution.
• The caution must be in the public interest.

The suspect must also always be offered the opportunity to receive free and independent legal advice. This applies even if a person has not been arrested and detained, and covers people who have attended on a voluntary basis at a police station, or someone who has been questioned outside a police station, such as at a person’s home, or at a music concert or festival. Typically cautions should usually be issued at a police station, or some other official location. This is in contrast to a Community Resolution, which are often issued at a suspect’s home.

Before a caution can be issued, the views of the victim have to be considered by the police. The victim, or victims’, views have to be taken into account when assessing the public interest in issuing a caution. The victim’s views also have to be considered when the police come to impose the particular conditions attached to the caution.

Even though a victim’s input is important in the caution process, a caution can still be issued against the views of a victim. This is often the case in domestic incidents, where victims, after the initial call to the police is made, do not want any action to be taken against their partner. The police will often ignore pleas by victims for cases to be dropped, and issue cautions against the victim’s express wishes. Sometimes the police may play down the impact of the caution to a victim, so that they agree to provide a statement, and support the caution, only to subsequently realise that the caution will have a significant impact on their partner.

It is possible for someone to receive a caution even after they have been charged. Representations can be made to a prosecutor to refer the matter back to the police for a caution to be issued. If the caution that is issued is a Diversionary caution, if the conditions are broken, the matter can then be sent back to court for prosecution.

A financial penalty can be attached to both a Diversionary or Community Caution, and that can be the only condition attached.

Conditions attached need to be appropriate to the case and individual, and a needs assessment may be undertaken to ensure rehabilitative conditions are relevant to the particular person.

Examples of conditions that can be attached are:

• An unpaid work condition – To carry out specified work for a maximum period of 20 hours for a Diversionary Caution or 10 hours for a Community Caution.
• Attendance condition – Requiring the offender to attend a specified place for a specified purpose (e.g., attending a drug or alcohol service), and for a specified number of hours. Where an attendance condition requires attendance at education or training, or receive any other service, the individual can be required to pay for this service.
• Reparative conditions – To repair (either directly or indirectly) any damage caused including reparative activity within a community, compensatory payment to an individual victim, business, or community, or financial compensation to a charitable or community fund. Compensation can also be made in respect of personal injury.
• An Apology – either in person or writing.
• Restrictive condition – not to meet or communicate with specified individuals; not to be in, or go to, specified addresses, places, or areas in the United Kingdom; not to carry out or participate in specified activities; not to engage in specified conduct.

For Domestic Abuse Diversionary cautions, there are detailed guidelines about the conditions that should be imposed

The time period for conditions to be complied with is a maximum of 20 weeks, but most conditions should be completed within 16 weeks.

Different time limits may apply; namely time limits may be made shorter where the police may need to prosecute a summary only offence, in the case of a Diversionary Caution. The police will need to make sure that the 6-month time limit to issue court proceedings for summary only offences is not exceeded prior to the completion of the conditions, in order to preserve the police’s ability to prosecute, in the event of a breach.

The rules related to the disclosure and retention of Diversionary and Community Cautions are essentially identical to those that relate to Conditional and Simple Police Cautions.

Both Diversionary and Community Cautions will be recorded on the PNC, which will mean they will be retained, unless deleted, until a suspect is 100 years old.

A Diversionary caution will be spent three months after it is issued, or earlier of the conditions come to an end sooner. A Community Caution will be spent immediately. Once a caution is spent it will not show on a basic DBS check.

For Standard and Enhanced checks, a caution will typically be disclosed for 6 years, after which it becomes protected. If the caution is for a “specified offence”, such as child cruelty, ABH, or sexual assault, then it will be permanently disclosable. Also all cautions can continue to be disclosed on a discretionary basis after 6 years on an enhanced DBS certificate.

At present we do not know the final form Diversionary or Community Cautions will take, but it seems that the rules and procedures are similar to the rules and procedures related to conditional and simple cautions – including the disclosure and retention rules.

In practice Conditional cautions appear to be very similar to the new Diversionary Caution; conditional cautions were always subject to the possibility of prosecution if the conditions were not complied with, and cautions for serious offences, were only ever issued after consultation with a senior officer. Simple Cautions never formally required the payment of a fine, like the new Community Caution, so that is a new development, but we have had cases in the past (admittedly rarely) were the police have asked clients to pay a fine or compensation alongside a Simple Caution. Penalty Notices for Disorder (PNDs) have always required the payment of a fine. Removing the option of a PND will actually mean that more people will end up with a disclosable record, as PNDs were never automatically disclosable on a standard or an enhanced DBS certificate, whereas Community Cautions will be disclosable.

For the time being simple and conditional cautions will continue to be issued, and we will continue to help our clients to have these cautions removed from the PNC. When the new Diversionary or Community Cautions come into effect, we will also help those clients to have their records deleted from the PNC.