By Anthony Edwards, TV Edwards, London


Guidance on offences taken into consideration

Guidance has been issued by the Crown Prosecution Service (CPS) and the Association of Chief Police Officers as part of the nationwide campaign to re-invigorate the use of offences taken into consideration (TIC).



It is suggested that there are no fewer than seven occasions when police officers should be seeking out such admissions. Notices have already begun to appear in custody offices and the booking-in procedure is the first of the seven stages. The matter will also be raised: in pre-charge interview; at charge; in post-charge interviews; at court hearings before conviction; at court hearings after conviction; and if necessary in prison visits. Solicitors will need to ensure clients are aware of their rights to legal advice at these additional interviews.



Almost everything police officers say about matters to be taken into consideration contains inaccuracies, and a number of the notices issued in different police areas contain serious errors and false inducements. The only reason for a client to be advised to admit additional offences is where they are in any event provable. Clients do not wish to be gate-arrested and if they do not admit a provable offence there is a real likelihood of such an action under present CPS policies.



However, a solicitor will need to test whether the offence is in fact provable, and the new guidance confirms that sufficient disclosure should be given to the suspect's legal representative in respect of both primary offences and the potential TICs to enable appropriate legal advice to be given. The interview on the offence should be dealt with ahead of an interview about TICs.



Before a matter can be taken into consideration there must be a 'sufficiency of evidence', which requires some corroboration beyond the mere admission by a suspect.



All other reasons for offering to take offences into consideration suggested by the police are inappropriate. TICs can: increase seriousness in accordance with the decision of the Court of Appeal in R v Miles [2006] EWCA Crim 256; do not prevent the matter actually being charged by the CPS; may prevent someone being diverted from the criminal courts; can affect the court's decisions on sentencing for dangerousness; and may make the imposition of a confiscation order more likely because they enable a criminal lifestyle to be established.



Difficult issues arise as to what steps should be taken by a solicitor if a client is asked to remain in detention to answer questions about offences to be taken into consideration. The same goes for a requirement to take part in what is becoming known as an 'intelligence interview'.



There is no justification for retaining suspects in custody for these purposes. The only power the police hold is in accordance with section 37(2) of the Police & Criminal Evidence Act 1984: 'If the custody officer determines that he does not have such evidence before him the person arrested shall be released... unless the custody officer has reasonable grounds for believing that his detention, without being charged, is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.'



Solicitors will need to take instructions from a client as to whether there is likely to be evidence provably involving them in other offences, but if not, the best course may just be to indicate that the client proposes to leave the interview room.





Conditional cautions

More than 50% of clients who are said by the police to be involved in crime are now not prosecuted through the criminal courts. There are worrying aspects to this. From the client's point of view there is a real concern that people are being dealt with by fixed-penalty notices and by cautions when in fact there is not sufficient evidence against them.



In G v Chief Constable of West Yorkshire [2008] Crim LR 141, the court held that the threshold test is an inappropriate test on which to deal with a matter by such an outcome - yet that is the present standard used. Solicitors will wish to argue that reasonable suspicion may justify an arrest, but can never justify issuing a penalty notice or caution. If a penalty notice is issued for a recordable offence it becomes a criminal record even though it is not a conviction.



The Director of Public Prosecutions has now issued the fifth edition of his guidance in relation to the use of conditional cautions. This includes a list of offences for which a conditional caution may be offered in relevant areas of the country. These include all summary-only offences and either-way offences under the Theft Acts and the Fraud Act, and many offences under the Criminal Damage Act and under the Misuse of Drugs Act, including for 'class A' drugs. It makes clear that the Crown must still carry out all proper lines of enquiry in accordance with the Criminal Procedure & Investigations Act 1996. The full code test is applicable to this outcome.



Clients with a high likelihood of re-offending are inappropriate for conditional cautions, unless the conditions would assist in rehabilitating the offender and minimising the likelihood of re-offending. Evidence of remorse and willingness to comply with conditions will make them more appropriate.



Solicitors will need to bring these matters to the attention of the custody officer because it is the police who first have to raise the issue of a conditional caution. The final decision is made by the CPS.



Co-suspects may be dealt with separately under this guidance and other forms of diversionary outcome should always be considered. If the conditions are not complied with there is now a power of arrest available to the police under section 18 of the Police & Justice Act 2006. Decisions on whether to prosecute will be made rapidly. If representations are required that there was a reasonable cause for a failure to comply, solicitors will need to put forward the arguments at the earliest opportunity.