Caution to the wind
Should your client accept a formal caution? Mark Conway considers the House of Lords' decision in Jones v Whalley
Instead of prosecuting a suspected adult offender (or of course not taking any action at all), the CPS may suggest to the police that they administer a caution, which, depending on the circumstances, may be either a simple or a conditional caution; or the police of their own initiative may decide that a caution is a better course than passing the file to the CPS.
However, the police cannot administer a caution without the offender's consent. Giving that consent will be tempting because it will often be seen as an 'easy way out' in terms of avoiding a prosecution with its attendant risk of conviction. But, where an individual relies on the advice of a solicitor, the solicitor must make clear to the client that accepting a caution has disadvantages as well as advantages.
A solicitor had to advise his client that even if he agreed to accept a caution, he could nevertheless still be prosecuted. The client could have been advised that this was (very) unlikely, but it had happened and could happen again. The solicitor might have added that if it were to happen, it would almost certainly be a private prosecution (not only would it have been incredible for the police to decide to caution and later prosecute and the CPS to continue that prosecution, but such a contrary position by organs of the state probably would have been ruled an abuse of court process).
In Hayter v L  1 WLR 854, the Divisional Court held that the right to bring a private prosecution was preserved by s 6(1) of the Prosecution of Offences Act 1985, but noted that the right was subject to a number of restrictions. The court refused to add to those restrictions cases in which a caution had been given.
So the position was straightforward: if the client accepted a caution, then, as a matter of fact, a prosecution was unlikely to follow because complainants rarely exercised their right to bring a private prosecution and the police/CPS having decided that a caution was appropriate would not, and indeed probably could not, commence proceedings. But the client would have to understand that, as a matter of law, a private prosecution could follow a caution, and so the caution could not be seen as an absolutely guaranteed means of avoiding prosecution.
Jones v Whalley
W, the appellant, assaulted J, occasioning him actual bodily harm. W was interviewed by the police and admitted the offence. The police decided it was in the public interest to caution W rather than prosecute, and W accepted the offer. Unhappy with this outcome, J began a private prosecution charging W with assault occasioning actually bodily harm (s 47, Offences Against the Person Act 1861). W argued in the Divisional Court that the administration of the caution should render the subsequent private prosecution an abuse of court process. The argument was rejected and he appealed to the House of Lords.
The Lords allowed the appeal, but care needs to be taken in understanding the ambit of the decision. The Lords addressed their attention to what Lord Bingham described as the 'narrower issue' and the 'broader issue'.
The narrower issue
W's written caution included the following wording:
'This means that you will not have to go before a criminal court in connection with this matter, but that a record will be kept of this warning.'
This was an inaccurate statement of the legal position. Nevertheless, this express assurance by the police that W would not be prosecuted became the focal point for the decision reached. The question for the House of Lords became whether a private prosecution should be regarded as an abuse of the process of the magistrates' court where the defendant has agreed to be formally cautioned by the police on the assurance that he would not then have to go before a criminal court. On that specific question, the Lords unanimously agreed that it was an abuse, and upon that specific basis allowed the appeal.
It is important to note that the form given to W was one used by the Greater Manchester Police Force. It is not universal police practice to inform an offender that consequent upon the caution he will not have to go before a criminal court. Indeed, in Hayter, the offenders signed forms that expressly stated that the caution would not preclude proceedings by the aggrieved party. This raised a broader issue.
The broader issue
W argued that whatever was stated in the form given to an offender, it would be an abuse of process to then entertain a private prosecution against him.
The House was very interested in this wider question. The problem for the Lords was that notice of this argument had not been given. It was raised for the first time during oral argument. The respondent had not prepared to address it. The question being of considerable importance, the House of Lords did not want to deal with it in the absence of argument from the CPS and the police.
Advice after Jones v Whalley
Strictly, the decision is a narrow one, and deals directly only with the position where the offender had been told in terms that he will not be prosecuted if he agrees to the caution. Thus, in such cases the advice that can be given is crystal clear. A client can be told that if he accepts the caution then he cannot be prosecuted at a later stage, neither by the CPS nor a private prosecutor.
However, what if that reassurance is not given? Or even, what if as in Hayter the possibility of later prosecution is specifically reserved? A simple view would be that Jones v Whalley is distinguishable and cannot be relied upon in this context, and even that Hayter is still good authority for that situation. If that view of the law were taken, solicitors would have to continue to warn their clients that, albeit it rare, a private prosecution could follow the caution.
I would suggest, however, that this is too simple a view. Hayter is a Divisional Court decision. Because of the importance of the point, the House of Lords wouldn't decide the broader issue, nevertheless it is very clear from their opinions that they have a strong provisional view in favour of not allowing prosecutions where a caution has been given, whatever the allusion to the possibility of a later prosecution (For example, see Lord Bingham's comments at paras 15 and 16).
Armed with House of Lords obiter in favour of all post-caution prosecutions being ruled an abuse of process, Hayter should be distinguished in the magistrates wherever it can be, and should be treated by a Divisional Court as no longer good law, and so, even given the apparently narrow decision in Jones, the solicitor's advice can be correspondingly robust.
There is nothing in the Jones decision that will restrict the complainant's capacity to bring civil proceedings. In dishonesty offences, the chances of this are very low. Stores will usually have recovered the property stolen following arrest after leaving the shop and even where property has not been recovered, the small amounts involved together with the unlikelihood of recovering costs mean that it will very rarely be worth their while to sue. However, those who have been assaulted often feel too aggrieved to evaluate litigation on a commercially rational basis, and where they have been assaulted in the course of their employment, their employer or union may be willing to support them. In such cases, it would be sensible to alert a client to the possibility of civil proceedings, even while reassuring him that it is not a frequent occurrence.
Finally, while Jones concerned a simple caution, the exact same points of principle apply in relation to conditional cautions, and in the case of juveniles, reprimands and warnings.