Tht Howard Journal Vol29 No 3. Aug 90 ISSN 02655527

Variations in Police Cautioning Policy and Practice in England

and Wales

ROGER EVANS and CHRISTINE WILKINSON Roger Evans i s lecturer in social work and Christine Wilkinson is

research fellow, Department of Social Policy and Social Work, The University of Birmingham

Abstract: The research described in this article was commissioned by the Home Office Research and Planning Unit. It was designed to assess the impact of new guidelines on police cautioning, issued to chief constables in the form of Home Oflce Circular 14/1985, and to provide a more general review of police cautioning in England and Wales. Inter- and intra-force variations in cautioning rates, policy and practice are described and some suggestions made about how a more unijiorm approach to cautioning might be achieved.

Juvenile cautioning rates rose sharply following the 1969 Children and Young Persons Act. This act encouraged the police to keep children out of court whenever possible. It is thought that diversion from court, through police cautioning, avoids the unnecessary criminalisation of juveniles and the labelling, stigmatisation and consolidation of criminal careers inherent in court proceedings.

The increased use of cautioning is generally seen as a progressive development in juvenile justice policy although it also has its critics. One concern is that, while aiming to divert children from court, increasing the use of cautioning may have the unintended consequence of ‘net-widening’ by including even greater numbers of children in the juvenile justice system than was previously the case (Ditchfield 1976; Farrington and Bennett 1981; Tutt and Giller 1983; Morris and Giller 1987; Giller and Tutt 1987). Net-widening can occur in a number of ways. The very existence of police cautioning may encourage its use for the kind of offences which would previously have resulted in informal warnings or no further action. Again, juveniles might be encouraged to admit guilt to offences and accept a caution rather than face what they perceive as an inevitably successful prosecution even when there is insufficient evidence for the police to achieve this or the child’s legal position is in some other way unclear.

A second concern is that differences in cautioning rates might indicate wide variations in practice between the 43 police forces. Although these differences narrowed, for juveniles, in the decade following the 1969

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Children and Young Persons Act ‘substantial differences in force cautioning rates and differences between adult and juvenile cautioning rates continue’ (Laycock and Tarling 1985, p. 82).

These concerns formed the background to new Home Ofice guidelines on cautioning issued to chief constables in the form of Circular 14/1985 (Home Office 1985). ‘This sought to make cautioning policy and practice more ‘effective and consistent’ for both juveniles and adults. Our research was carried out in 1987188 and was designed to assess the impact of the circular and to provide a more general review of cautioning practice in England and Wales.

In this paper we concentrate on the issue of consistency rather than effectiveness. Our first aim is to assess whether the new guidelines have led to more consistent cautioning practice among the England and Wales police forces by examining trends over time in the range of their juvenile and adult cautioning rates. In the process we pay some attention to the impact of the circular on increasing the effectiveness of diversion by also examining trends in average cautioning rates. Secondly we examine whether previous research findings, particularly those that explain variations in juvenile cautioning rates in terms of differences in crime patterns or proportions of offenders who are first offenders, apply to our data. We then describe some of the variations in cautioning policies and practices that we uncovered in the course of our research and which might contribute to discrepancies in cautioning rates. Whereas previous research has focussed on differences between forces, our results suggest that the differences within them may be just as important. This raises questions about how best to achieve intra- and inter-force consistency in cautioning so we conclude with some policy recommendations based on our research findings.

Research into Discrepancies Between Force Cautioning Rates

The little research there is on police cautioning is mainly concerned with juveniles. Research into variations in cautioning rates between police force areas focusses on the relative influence of legal and non-legal variables. Clearly some variation might be justified and expected to continue if it reflects differences in crime patterns or offenders’ records, whereas differences in policies or practice might indicate a lack of uniformity of approach. Ditchfield (1976), Mott (1983) and Laycock and Tarling (1985) conclude that some of the variation in cautioning rates can be accounted for in terms of differences in types of offences and offence rates in different police areas. Variations in cautioning rates are also explained in terms of non-legal variables, including age, class, sex and ethnic origin of offenders and offender and parental attitudes (Bennett 1979; Landau 1981; Farrington and Bennett 1981; Fisher and Mawby 1982; Mawby and Fisher 1982; Landau and Nathan 1983; Mott 1983; Laycock and Tarling 1985). This suggests that older, working class, Afro- Caribbean boys, having a truculent attitude to authority and parents that the police judge to be incapable of exercising control, are less likely to be

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cautioned than other groups. Again, variations in cautioning rates are explained in terms of differences in police policy and organisation (Redmond-Pyle and Stevens 1983; Mott 1983; Laycock and Tarling 1985).

Most of these early studies do not provide a national picture of police cautioning policies or practice. They are based on data gathered from single forces or small samples of forces. Neither do they examine adult cautioning. A study by Laycock and Tarling (1985) does provide a national picture and their findings are included in a Home Office (1984) consultative paper, Cautioning by the Police, which preceded Circular 141 1985. Laycock and Tarling conclude that whilst some of the variation in

juvenile cautioning rates is due to differences in police policy and practice, differences in crime patterns and the proportion of first offenders both partially explain these variations in rates and:

clearly put a limit on the extent to which differences in force cautioning ofjuveniles can be reduced. (Laycock and Tarling 1985, p. 90)

The Present Study

Our research consisted of a questionnaire survey of the 43 England and Wales police forces accompanied by a request for policy statements, standing orders, and force cautioning statistics for juveniles, adults and young adults. Forty-two forces responded. Following a preliminary analysis of the survey data, visits were made to ten selected forces, where interviews were conducted with senior officers with responsibility for force cautioning policy and decision-making ‘gatekeepers’, who were usually inspectors. Additional statistical data were collected from Criminal Statistics, with the aid of the Home Ofice Statistical Department, and through a follow up of the statistical data produced in the original survey.

When examining trends in juvenile cautioning statistics for all England and Wales police forces Laycock and Tarling (1985) use average rates as a measure of changes in effectiveness and the range as a measure of changes in consistency over time. They qualify their use of average cautioning rates as a measure of effective diversion from the courts because:

While much of the initial increase was attributable to juveniles being diverted from court appearance, it has been shown (Ditchfield 1976) that a significant part of this increase was brought about by many juveniles being cautioned that would otherwise have been dealt with informally, an effect frequently described as ‘net widening’. (Laycock and Tarling 1985, p. 82)

Trends in Cautioning Rates Before and After Circular 14/1985

Figure 1 shows juvenile male cautioning rate average and range trends for the period prior to and following the issue of Circular 14/1985.

The use of the range trend as a measure of changes in consistency is open to the objection that rogue forces can significantly distort the range. Visual inspection of scattergrams of annual cautioning rates for all forces

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P UI z I- 5)

0 W 0 I- z W 0 w P

0 a

a

a

70 1

FIGURE 1 Juvenile Male Cautioning Rates: Average, Range and Adjusted Range

(All 43 Police Forces, England and Wales)

50 6o 3 i

20

10 :1 70 7

40

60 - 50

30 -

20 -

10

- AVERAGE

RANGE (MAX*MIN) --cJ-- ; / p \ - ADJUSTEDRANGE

P X ' \ - a' \ s

b I ~ l ' l ~ l ~ l ~ l

1978 1 1 . I ' I . I . I .

980 1982 1984 1986 1988 1

AVERAGE RANGE (MAX*MIN) ADJUSTED RANGE

1 990

YEAR

(Source: Criminal Statistics England and Wales 1980-1988 (Home Ofice 1980- 1988))

over this period suggests that generally one or two forces, at both the top and the bottom of the range, could be considered 'rogue' forces likely to affect the range considerably. The adjusted range shown in Figure I is computed for 90% of forces, that is, it eliminates the forces with the two highest and two lowest cautioning rates.

Figure 1 shows that the average juvenile male cautioning rate was increasing prior to the circular, levelled of in the period immediately following its issue and has risen in the last year for which statistics are available. I t is hard to know how to interpret this except to say that the circular has not had any obvious effect.

The full range trend appears to be upward prior to and following the circular with a sharp drop in the final year. The adjusted range trend, however, shows a downward trend in the period prior to the circular, a levelling off around the time of its issue and a slightly increasing trend since. I t can be argued that generally the circular has had a neutral effect on consistency for this group although there is some evidence that discrepancies in force cautioning rates have increased slightly in the period since its issue.

The full range average for the years since the circular was issued is 38 percentage points and that for the adjusted range 21. This raises the question of what is an acceptable level of consistency. It should be noted that variations in cautioning rates measure consistency of outcomes not

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uniformity of policy and practice. The important question is whether discrepancies in cautioning rates between forces are best explained in terms of patterns of crime or recidivism or in terms of wide variations in practice. This is one that we explore below. Figure 2 suggests that the average cautioning rate for juvenile females was increasing prior to the circular, has increased less sharply in the two years following its issue and has dropped slightly in the final year for which statistics are available. Again it is hard to know how to interpret this trend. Average cautioning rates for this group were already very high prior to the circular and it could be argued that there was not much scope for any increase.

The full range trend for juvenile females dropped sharply over almost all of the period prior to the circular suggesting that forces were becoming increasingly consistent in their cautioning practice. The general trend since the circular is slightly upward with one clearly aberrant year. The adjusted range trend is a weaker version of the full range trend. Again it can be argued that the circular had no obvious effect on discrepancies in juvenile female cautioning rates. The average full range in the period following the circular is 28 percentage points with the average adjusted range being 15. The latter range is comparable with that for juvenile males.

100 -

P 80 - W z t 3 4 0

9 60 -

FIGURE 2 Juvenile Female Cautioning Rates: Average, Range and Adjusted Range

(All 43 Police Forces, England and Wales)

/- AVERAGE

-- Q-- RANGE (MIN-MAX) ADJUSTEDRANGE

1978 1980 1982 1984 1986 1988 1990

YEAR

(Source: Criminal Statistics England and Wales 1980-1988 (Home Oflice 1980- 1988))

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One distinctive feature ofadult male cautioning rates shown in Figure.? is that since the circular the average young adult cautioning rate has risen more than that for the older adult group. Whether this is as a direct result of the circular’s emphasis on young adults or the result of other influences encouraging police forces to expand diversion through cautioning this group is impossible to tell.

Visual inspection of annual cautioning rates for all police forces suggests that generally there are no obviously rogue forces likely to distort the full range. The full range trend for older adult males rises in the year following the circular and then levels off. The trend for young adults is generally rising suggesting that forces are becoming increasingly in- consistent in their cautioning practice with this group. The average full range for young adults since the circular is 20 percentage points while that for older adults is 19 percentage points.

Figure 4 shows that the average cautioning rates for both female adult groups rose before and following the circular although it is interesting to note that the average for the older group is consistently higher than that for the younger group. We can think of no obvious explanation for this. The range trends are much less consistent than those for other age and sex groups and examination of scattergrams for the annual cautioning rates for all forces suggests that this is not due to the presence of a small number of rogue forces. For the younger female adult group the range trend is generally upward both prior to and following the circular with a drop in

D w z 0 20 - 5 a 0 W 0 c z W 0 E w

a 10 -

n

FIGURE 3 Young Adult Male and Adult Male Cautioning Rates: Average and Range

(All 43 Police Forces, England and Wales)

--t- AVERAGE 17-20

--1- RANGE 17-20

0 - - AVERAGE 21+

RANGE 21+ --a-- m - - e - - d

o ! I I I I 1

1980 1982 1984 1986 1988 1990

YEAR

(Source: Criminal Statistics England and Wales 1981-1988 (Home Office 1981- 1988))

160

FIGURE 4 Young Adult Female and Adult Female Cautioning Rates: Average and Range

(All 43 Police Forces, England and Wales)

50 - --C AVERAGE 17-20 F

RANGE 17-20 F AVERAGE 21+ F ---Q--

a 4 0 - W z r 2 30-

--a-- RANGE 21+ F 0

u ,.u--o W

2 W 0 U

10-

0 1 1980 1982 1984 1986 1988 1990

YEAR

(Source: Criminal Statistics England and Wales 1981-1988 (Home Office 1981- 1 988) )

the final year for which statistics are available. The trend suggests that forces have become more inconsistent in their cautioning practices particularly since the circular. The range trend for older adults dropped prior to the circular, rose sharply in the year following its issue and has dropped since although it has not reached its pre-circular level. The average full range since the circular is around 40 percentage points for both female adult groups, which is the largest of any age and sex group and suggests that inter-force discrepancies are at their highest here. Laycock and Tarling (1985) suggest that one possible explanation is that some forces may caution for shoplifting while others may not although, as we show later, this is not reflected in forces’ formal cautioning policies.

Explanations of Differences Between Police Force Cautioning Rates

An obvious feature of the above data is that considerable differences between police force cautioning rates remain for each age-sex group. One potential explanation for this is that forces vary in their crime patterns. Laycock and Tarling (1985) accept Ditchfield’s (1976) evidence that inter-force variations in juvenile cautioning rates can be partially explained in this way. Ditchfield suggests that differences in cautioning policy are best demonstrated by comparing cautioning rates for a single offence although he was unable to do this from published statistics. Using information supplied by the Statistical Division of the Home Ofice we

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were able to examine variations in cautioning rates between police force areas with respect to the single offence of shoplifting. We chose this offence as it is the one for which the majority of cautions are given and there is a strong relationship between cautioning rates for total indictable offences and those for shoplifting. We conclude that differences in crime patterns are not a good explanation of differences in juvenile cautioning rates (Wilkinson and Evans 1990).

Laycock and Tarling (1 985) argue that differences in cautioning rates between police forces can also be partially explained by the proportion of offenders who are first offenders in any given force because the majority of cautions are given to first offenders. Since Laycock and Tarling do not provide a measure of association for this relationship in their article we calculated this for ourselves. The Spearman rank correlation coefficient for the relationship between cautioning rates and the proportion of offenders who are first offenders in their sample of forces is rs = 0.6, which is significant at the 5% level.

The data that we were able to obtain is shown in Table 1 . Our sample of forces is different from Laycock and Tarling's. Like them we are reliant on statistics gathered by forces for their own puposes. Our survey revealed that the majority of police forces only record very basic information about pre-court decisions and do this manually. They concentrate on recording

TABLE 1 Proportion of Juveniles Caulioned, the Proportions of First 0 ffenders and First

Offenders Cautioned and the Proportion of Second and Subsequent Cautions

Police Force Proportion of Proportion of Proportion of Proportion of Area offenders offenders who first offenders second and

cautioned YO are first cautioned YO subsequent offenders O/O cautions '/a

A B C D

Cambridge Essex Humberside Kent Met. P. Norfolk Thames Vall. Warwicks West Mercia West Mids.

70 59 62 64 58 67 74 80 68 73

53 50 49 59 46 61 64 51 63 51

67 81 60 89 60 71 63 75 75 67

37

37 16

28

-

25 23 33

(Note: The data in this table refer to 1986 with the exception of Warwickshire, which refer to 1987. Data were obtained directly from police forces or through juvenile monitoring systems. The data for West Mercia, West Midlands and. Warwickshire do not cover the whole force area.)

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cautioning rates for different sex and age groups and only collate them once a year for the purpose of Home Office returns or the chief constable’s report. The remaining forces have computerised systems which enable them to collect and collate more detailed information concerning for example the frequency of use of informal warnings or whether cautions are instant or deferred for consultation. Even these forces, however, tend to collect statistics by offence rather than offender and therefore cannot necessarily say anything about offenders’s cautioning histories. Some of the data shown in Table I comes from forces which collect detailed pre- court decision statistics routinely and some from forces which had happened to conduct ad hoc statistical exercises during the same year. The lack of standardised and more detailed pre-court decision-making statistics for all forces makes comparisons between forces and between years difficult and accounts for why our sample of forces is different from Laycock and Tarling’s.

Column C suggests that the majority offirst offenders are cautioned. The correlation between columns A and B in Table 1 is rs = 0.62, which is significant at the 5% level. This confirms Laycock and Tarling’s (1985) finding that inter-force differences in cautioning rates for juvenile males can be partially explained by the proportion of offenders who are first offenders. In addition Laycock and Tarling (1985) argue that inter-force variations in cautioning rates might also be explained in terms of the numbers of second and subsequent cautions in given force areas. The correlation between columns A and D in Table I is rs = 0.06, which suggests that variations in cautioning rates cannot be explained in terms of differences in the proportion of cautions that are second and subsequent cautions for this data.

Column B shows that proportion of offenders who are first offenders varies between forces, ranging from 46% to 64%. We could not investigate the reasons for this but they may include differences in demographic factors, the level of criminality or police practice.

Having examined some inter-force differences in cautioning rates we then examined intra-force differences. We were able to obtain sub- divisional juvenile cautioning rates for 14 of the 42 forces. In each of these forces intra-force differences were as least as great and often greater than inter-force differences. Typically sub-divisional juvenile cautioning rates ranged from 35% to 70%. Some of this difference might be explained in terms of demographic factors although we were unable to test this. There is, however, no reason to suppose that our argument about the sources of inter-force variations in rates does not apply equally well to intra-force differences. We demonstrate in the following analysis that juvenile cautioning decision-making systems are often ad hoc and highly geo- graphically localised so that we should not be surprised if they produce differences in outcomes in the form of intra-force differences in cautioning rates.

Indeed to talk about consistency solely in terms of outcome measures, as much of the previous research does, is in one sense to miss the point. Differences in outcomes are only one measure of consistency. We agree

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with Laycock and Tarling's conclusion that there is a limit to the extent to which differences in cautioning rates between forces can be reduced because to some extent they arise from factors, such as the proportion of first offenders in particular force areas, that are beyond the control of the police. We would argue, however, that forces ought to strive towards uniformity of cautioning policy and practice even though we cannot precisely apportion the contribution of these to differences in outcomes. If police forces have widely different cautioning policies and structures or use very different criteria when making cautioning decisions, for example by defining serious offences or records in different ways, then this ought to be a matter of concern in its own right.

Police Cautioning Policy

' l o assume that the circular might affect cautioning rates is also to assume that significant changes in police force policy were implemented following its issue. Discerning the circular's impact on policy was, however, more difficult than at first envisaged. The national survey revealed that, although three-quarters of the forces carried out a review as a result of the circular, this resulted in only half of the forces making changes for juveniles and slightly over half for adults. The major policy change appeared to be the verbatim incorporation of the circular into force standing orders. Otherwise changes were often very minor. Our inter- views revealed that eight out of ten forces had not fully implemented intended policy changes or claimed that policy reviews were ongoing. I t could be that our research was carried out too close to the date of issue of the circular for many forces to have had time to carry out and implement changes.

Given that written cautioning policy is mainly confined to standing orders and that the majority of forces incorporated the circular verbatim into their orders it proved extremely difficult to tease out any differences in cautioning systems or structures. This difficulty was reflected in answers to questions in our survey asking forces to describe these systems and structures. The majority of forces simply referred us to their standing orders.

Police Cautioning Practice

We examined next what pre-court decision options were used in practice in contrast to those which were incorporated into standing orders. We can identify the range of options available to the police when taking pre-court decisions about juveniles from our survey and interview data. This range is clearly different from that available during the period when earlier research was carried out which suggested that the choice was simply between no further action, a caution or a prosecution. The available range of pre-court decisions has become increasingly complex involving three main tiers with a number of options in each. The first tier consists of pre- caution decisions and involves no further action and informal warnings.

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The second consists of decisions to caution and includes instant cautions, deferred cautions with or without consultation and caution plus. By caution plus we mean cautions with a condition attached to them such as reparation or victim mediation. The third tier consists of decisions to prosecute with or without consultation.

We first assessed the variations in the use of these options and whether they were used on first or subsequent appearances. Whilst qualitative data were available to us from the national survey and our interviews, quantitative data in the form of statistics on pre-court decisions were only available for a limited number of forces. We have already explained the reasons for this in terms of the way forces routinely collect their cautioning statistics.

The missing values in Table 2 indicate that forces did not have the information available because they did not use that particular decision- making option. Table 2 is intended to illustrate both differences between forces both in terms of the outcomes of decisions and in their use of different decision-making options. It suggests that there are considerable variations in the type of decision-making options used by different forces and that even in those forces using the same options the frequency of use of these varies considerably. We can demonstrate this point further by

TABLE 2 Pre-court Decisions (Excluding No Further Action) as a Percentage of all Decisiom

on Juveniles for Crime ~ ~ ~

Police Force Informal Instant Deferred Prosecution Area warning caution caution

Cam bridge Essex Gt. Manch Hampshire Humberside Kent Merseyside Met. P. Norfolk Northants Northumbria Suffolk Thames Vall. Warwicks West Mercia West Mids

23 47

22 8

26

15 9

22 11 27

7 4 2

-

-

-

46 25 54 33 60 46 57 35 51 40 50 50 37 51 58 62

31 32 46 30 32 27 43 50 40 25 38 39 36 42 38 35

(Note: The data in this table refer to 1986 with the exception of Warwickshire, which refer to 1987. Data were obtained directly from police forces or through juvenile monitoring systems. The data for West Mercia, West Midlands and Warwickshire do not cover the whole force area.)

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examining each option in turn. Whilst once again we concentrate on the issue of consistency we refer, when appropriate, to the potential of each decision-making option for diversion.

NFA’s And Informal Warnings

As far as juveniles are concerned, Circular 1411985 states that forces should recognise that a formal caution is a serious step. A caution should be avoided when ‘the circumstances of the case are sufficient to justify it’ by taking no further action or making greater use of informal warnings.

No further action decisions are excluded from Table 2 for reasons that are explained below. There is, however, considerable variation in their use between the 16 forces shown. This ranges as a proportion of all pre-court decisions from 0% to 24% with an average of 10.6%.

No further action decisions are taken in two very different sets of circumstances. First when there is an obstacle to prosecution, because for example, the offender is under age or there is insufficient evidence. In these circumstances the police may decide to record no further action in order to clear up the crime. Second there are cases where the police simply choose to take no further action even though the formal criteria for a caution or prosecution have been met. The usual reason given is that any action ‘would not be in the public interest’. I t is therefore impossible to use NFA data in order to measure the extent to which forces are trying to divert juveniles from the system, as some previous researchers have tried to do, as this category contains unknown proportions ofjuveniles who are not available for cautioning or prosecution.

Forces use informal warnings in two different ways. In some forces informal warnings refer to discretionary action on the street. In others the term is used to refer to ‘formal’ informal warnings that have all the characteristics of a caution except that they cannot be cited in court. The data in Table 2 refer to the second of these uses. Only five forces use ‘formal’ informal warnings and only three to any significant extent. We have already said that some decisions recorded as NFA may be interchangeable with informal warnings so that the data on informal warnings contained in Table 2 may underestimate the frequency of use of informal action in practice. For this reason, and because we do not have before and after data on the use of ‘formal’ informal warnings, we cannot say whether the circular has achieved its aim of increasing diversion by increasing their use. Very few forces, however, use the option of ‘informal warnings’ or record their use so the circular does not appear to have made much of an impact with respect to them.

We had no way of directly measuring the use of informal street warnings. In our interviews with decison makers, however, we were repeatedly told that they are only used for the most minor offences, not recordable for Home Office purposes, such as dropping litter and riding pedal cycles on the pavement. Interview responses often involved nostalgia for the days when ‘there was respect for the uniform’ and beat officers could ‘clip kids around the ear and send them on their way’. The

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reasons given for the demise of this golden era were the advent of the Police Complaints Authority and the fact that ‘crime’ was more likely to be reported than observed and therefore required ‘a result’. Since we could see no advantage to the police in propagating this view we were inclined to accept their statements. Previous cautioning research by Ditchfield (1976) and Farrington and Bennett (1981) suggests that the principal cause of net-widening is that informal street warnings have been replaced by formal cautions. They fail, however, to provide any direct evidence in support of this argument and we doubt that it is valid.

Instant Cautions

A second general principle contained in Circular 14/1985 is that first time offenders, and those committing less serious offences, should not be prosecuted whenever possible. In addition forces are encouraged to make greater use of instant cautions to avoid undue delay. Any decison to caution must meet basic criteria concerned with sufficiency of evidence, admission of guilt and parental consent. A decision to caution instantly should not be made ‘if there are indications of social and domestic problems’.

Examination of the 42 forces’ standing orders suggests that all but four forces have provision for instant cautions. In trying to assess the extent of the use of instant cautions we ran into the difficulty that the majority of forces do not distinguish between these and deferred cautions when compiling statistics. The variation in instant caution rates as a proportion of all pre-court decisions is shown in Table 2. I t ranges from 2% in the West Midlands to 47% in Essex with an average of 17%. This suggests that there is considerable discrepancy in forces’ use of instant cautions. The high rate in Essex can be explained in terms of the force cautioning system. Clear and simple criteria are applied to first offenders committing non-serious offences and central decision making ensures that these are uniformly administered.

We might also expect forces having a high proportion of first offenders to be those making greatest use of instant cautions since this is the group for which they are particularly recommended. This assumes that forces have not already diverted first offenders by means of no further action or informal warnings. These options should not, however, be interchangeable with instant cautions which must be considered a more serious interven- tion than informal action because formal cautions can be cited in court. The correlation of instant caution rates with column B in Table I , which shows the proportion of first offenders, is rs = 0.07 suggesting that there is no significant relationship. One explanation could be that forces vary in the seriousness of offences committed by first offenders and another that forces vary in the proportion of offenders with social and domestic problems but we have no means of testing these.

The argument for increasing the use of instant cautions is that this might avoid undue delay. An argument against their use is that without proper consideration of the full circumstances instant cautions are given

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when informal warnings might be more appropriate. Without knowing the precise circumstances of each case it is impossible to interpret the relationship between informal warnings and instant cautions in Table 2 except to note that the latter appear to be used far more frequently than the former.

The criteria most frequently cited in our survey for deciding when an instant caution was appropriate were non-serious offence and non-serious record. The definition of non-serious record was unproblematic: in 16 forces this meant first offenders only; another three forces did not exclude subsequent offenders although two forces required a two-year lapse between offences. I t was extremely dificult, both from the survey data and from our interviews, to discover what criteria forces used to define a non-serious offence. The most common response in our survey and interviews was that ‘each case was decided on its merits’. Examples would then be given of how the same offence, say the theft of a small amount of money, might be considered trivial in some circumstances and serious in others, for instance, if the theft was from an old-aged pensioner. Clearly this issue is central to understanding how discretion is exercised in the prosecution process and we were unable to investigate it further.

Multiple Cautions Circular 14/1985 states that when considering an offender’s record the existence of a previous caution or conviction should not preclude a subsequent caution. In our national survey forces reported that one of the most important effects of the circular was to give them permission to consolidate or develop multiple cautioning policies. Force policies on multiple cautioning were, however, extremely vague. Six forces had no policy and two forces usually prosecuted after one caution. In 15 forces multiple cautions were allowed and a further 14 forces gave a variation to this reply by quoting verbatim from the circular the circumstances under which second or subsequent cautions might be considered. These include a reasonable lapse of time between offences, or if the current or previous offence was trivial or different in character. As only seven forces record whether cautions are first or subsequent cautions and only four of these record the number of subsequent cautions it proved dificult to test if policy was achieved in practice. The limited data that we were able to obtain suggests that the majority of cautions are first cautions with a range from 63% to 84% of all cautions and an average of 72%. Second cautions ranged from 13% to 20%; third cautions from 2% to 6%; and fourth cautions from 1% to 3% of all cautions. The tail-off in numbers for third and fourth cautions is marked suggesting that only a small number of offenders receive more than two cautions.

In the light of this data, we tried to ascertain from the survey the maximum or usual number of cautions that forces were prepared to give. The majority of those forces prepared to identify a force ‘practice norm’ usually prosecuted after two cautions, unless there were overwhelming

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reasons not to do so. The norm of a maximum of two cautions was also reflected in our interview data. With respect to the latter, even when policy makers perceived their forces as multiple cautioning forces, practitioners said that the vast majority of cases were prosecuted after one or two cautions. Clearly the issue of multiple cautioning is an important one, given magistrates’ misgivings about it, yet once again the lack of routinely collected statistics make it difficult to assess whether the frequent use of multiple cautions is a myth or a reality. It may be that the few offenders that are repeatedly cautioned have a significance for decision makers out of all proportion to their actual numbers.

Caution Plus The final tier in the cautioning system consists of cautions with conditions attached to them such as attending an intermediate treatment group and participating in reparation or mediation schemes. Cautions of this type are popularly referred to as ‘caution plus’. Eighteen forces had some kind of alternative to prosecution or ‘caution plus’ scheme. Seventeen of these were for juveniles and one for adults. Where ‘caution plus’ existed it was on an ad hoc and localised basis with only three forces claiming that it operated across the whole force area. These geographically localised cautioning structures are fundamental to understanding how intra-force differences in cautioning arise. The localised basis of ‘caution plus’ was partly due to the involvement of other agencies such as social services and probation since generally the latter provide the resources for caution plus schemes. Since social agencies and police force boundaries are not necessarily co-terminous different social agencies involved with the same police force may make different decisions concerning resourcing caution plus leading to a lack of uniform provision over the whole police force area.

We tried to ascertain if the availability of ‘caution plus’ would make it more or less likely that a decision to caution rather than prosecute would be made under any circumstances. In our interviews some officers emphasised that ‘caution plus’ was an attachment to, not a condition of, a caution and therefore a decision to caution had to be made independently of any agreement by offenders to participate in ‘caution plus’ schemes. Others agreed that they might decide not to recommend prosecution if they thought that the offender would agree to participate in ‘caution plus’. In replies to the survey 17 forces stated that the availability of ‘caution plus’ would increase the likelihood of a decision to caution in some circumstances and four stated that it would not.

We tried to assess the proportion of offenders involved in caution plus and the best estimate we could arrive at for the three forces with force- wide provision was 4%. It would appear that the attention given to reparation and mediation is out of all proportion to their availability or the number of offenders involved.

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Consultation

The circular states that when there are indications of social or domestic problems or where doubts exist about the appropriate course of action:

there will generally be an advantage in the police seeking to secure the advice and views of other agencies. (Home Office Circular 14/1985, part 1, para. 9)

Forces are told that the issue of the new guidelines should provide them with an opportunity to review existing consultative arrangements. More detailed consideration of cautioning should take account of the interests of the aggrieved party, reparation, compensation, the possibility of private prosecution and the previous character and family background of the offender. Despite encouragement to consult social agencies, the circular advises that the police should not use prosecution to secure access to the welfare powers of the court when the offence does not warrant prosecution and social work help can be achieved by other means for example through informal supervision.

Our survey suggests that the police organise juvenile consultation by means of ‘co-locational bureaux’, ‘inter-agency meetings’, or ‘individual consultation’. Co-locational bureaux consist of semi-autonomous multi- agency organisations having staff seconded to them from each of the main agencies involved. They usually deal with all juvenile cases from the point of arrest. Inter-agency meetings consist of regular meetings between representatives of the police and social agencies. Individual consultation occurs either through the exchange of standard pro forma or by means of ad hoc individual inter-agency contacts.

Consultation could be described at best as geographically ‘patchy’. Only one force has co-locational bureaux, eleven inter-agency meetings, and eleven individual consultation systems which cover the whole force area. The remaining 19 forces have mixtures of usually two, but sometimes three, types of system, in different divisions or sub-divisions, within the force. Again this potentially contributes to intra-force differences in cautioning practice in so far as it represents a lack of uniformity of approach.

It was beyond the scope of our research to account fully for this degree of variation in inter-agency consultation. I t is clear that responsibility for this does not belong to the police alone for a variety of reasons. These include the involvement of other agencies, the fact that agency boundaries may not be co-terminous and that consultation sometimes depends on the commitment and enthusiasm of individual decision makers.

We were also interested in the point at which consultation occurred in the prosecution process. Once again very few forces recorded whether decisions were taken before or after consultation. Our survey suggests that 20 forces did not know what percentage of cases were referred for consultation when considering a caution; in eight forces all cases were referred, and the remaining forces gave estimates of between 5% and 95% with an average of 59%.

Despite the absence of statistical data some generalisations about

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consultation can be made from our force interviews. For those forces or force areas having bureaux or inter-agency meetings the consultation process often involved social agencies attempting to persuade the police not to prosecute some cases. In these forces there were sometimes disagreements which were described as ‘sharp’ and ‘acrimonious’. These disagreements often occurred when social agencies disputed legal aspects of a case, usually whether there was sufficient evidence for a prosecution or whether offenders had admitted guilt, in whole or in part, to the offence as charged. In other forces there appeared to be almost complete agreement among parties to inter-agency consultation about police recommendations for caution and prosecution.

Whatever disagreements there were, we came to realise that, given the average frequency and length of meetings, it was only possible to investigate fully and discuss a small number of cases. This left us wondering how many active decisions are taken in the process of consultation or how much consultation operates simply as a rubber stamp for prior police decisions. However hard we tried in our interviews, we found it difficult to understand how decision makers used whatever information they could obtain from social agencies. For example lack of parental control could be used as an argument both for a caution, if it was interpreted as mitigating evidence, and for a prosecution, if it was taken as an indicator that more formal controls were required.

Our general conclusion is that there are enormous variations in consultation arrangements and that these are often highly localised. From a research point of view surprisingly little is known about how consultative decisions are made. We suspect that current policy has been constructed on the basis of assumptions which are not very well rooted in the realities of practice.

Adults

The circular suggests a fundamentally different approach to adult cautioning . Unlike the case ofjuveniles there is no general presumption that cautioning will be the normal course. (Home Office Circular 14/1985, part 2, para.1)

Cautioning may be appropriate for particular categories of adult oKender including young adults, the elderly or infirm or those considered to be ‘at risk’ through mental illness or some other impairment. The fact that a person does not fit into any of these categories does not preclude a caution being given. Apart from operating on a fundamentally different principle the major difference between the guidelines for adults and juveniles is that for adults the tiers in the pre-court decision-making system are fewer. The choice is basically one between a caution and a prosecution.

We have already examined the range and average trends of young adult and adult cautioning rates for the period before and after the circular. With respect to policy and practice our survey confirms that the tiered pre-court decision making system referred to above does not apply to

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adults to any great extent. Standing Orders in eleven forces seem to show that instant cautions are applicable to adults but it proved difficult to discover the extent to which they were used. Since consultation with other agencies is unusual for adults, cautions are by definition instant cautions. Caution plus for adults operated in only one force (Northamptonshire). As the circular advises, adult cautions are restricted to certain types of offender and to certain types of offence. Twenty-five forces mention the elderly and infirm, and people at risk, whilst 20 forces mention young adults as a separate category. Twenty-two forces define the type of offences for which a caution may be applicable (three of these forces do not define type of offender): 18 forces mention offences relating to drunkenness; nine forces mention drug offences, usually possession of cannabis for personal use; and four forces mention prostitution. Again, as with juveniles, the seriousness of the offence is an important criterion for judging the appropriateness of a caution and this is open to very different interpretations. I

Conclusion

Our examination of trends in average cautioning rates for all England and Wales forces shows that these were rising prior to Circular 14/1985 and have continued to rise since for all sex and age groups. The sharpest increase following the circular is for young adult males. Prior to the circular it was ‘the policy of almost all forces to prosecute young adults and adults unless there were good and sufficient reasons not to do so’ (Laycock and Tarling 1985, p. 84). This suggests that young adults and adults were treated as one group. In the period following the circular there has clearly been a change in policy with respect to young adult males which has affected average cautioning rates. We have already suggested that we are unable to assess whether this is due solely to the influence of the circular or due also to more general concerns about offence and custody rates in this group. It would appear that some forces are developing diversionary strategies for young adult offenders that are similar to those that they have developed for juveniles.

Our data on cautioning rate range trends suggests that if the circular has had any effect on consistency it has been neutral or negative for all age and sex groups. We need, however, to distinguish between consistency of outcomes in the form of cautioning rates and uniformity of approach in the form of policy and practice. We would argue that variations in caution rates between forces might be expected to continue as they are partly due to factors beyond the control of the police such as the proportion of offenders who are first offenders. We have documented, particularly with respect to juveniles, how cautioning policies and practices vary both between and within forces. Although we cannot measure precisely the effect of these differences on cautioning rates we would argue that it is reasonable to expect that some of the discrepancies in rates are due to these differences in policy and practice.

One of the most obvious sources or variations in juvenile policy and

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practice is that the circular encouraged forces to develop tiered systems of pre-court decision making. At the same time forces, or divisions or sub- divisions within forces vary in the extent to which they make use of the available decision-making options. Given that the circular aims to increase effectiveness and consistency we suspect that the relationship between the two is that the effectiveness of cautioning for juveniles in some areas has been improved at the expense of overall consistency. There is some support for this argument from our trend data which shows that average rates have increased alongside a slight increase in the range in the period following the circular.

Whereas we do not have any answer to the vexed question of what would constitute acceptable variations in cautioning rates we think there are strong arguments for encouraging forces to have a uniform and therefore equitable approach to cautioning policy and practice. At the same time we would not wish to inhibit forces from experimenting and pushing back the boundaries of what is thought possible in the field of diversion. We agree with Sanders (1988) that there is still ‘scope in England and Wales for increased diversion’ so we would like to see a reduction in the number of ‘rogue’ forces with low but not high cautioning rates. Uniformity has to be balanced against encouraging the develop- ment of ‘best practices’. With this in mind our research does suggest some further ways to achieve uniformity of approach.

Circular 14/1985 focusses on variations between forces whereas we think that the attention of chief constables should be drawn to our evidence concerning intra- as well as inter-force variations in policy and practice.

Their attention should also be drawn to the need for computerised recording of basic information about pre-court decisions. This is not only a question of monitoring the system but also of developing information for managing it. Forces ought to be able to tell how many pre-court decisions they are making, of what type, at what stage in an offender’s career and with respect to what types of offences and offenders. Information ought to be recorded in a standardised way in order to facilitate intra- and inter- force comparisons and collected by division or sub-division.

I t is hard to see how many forces can evaluate the effectiveness of their cautioning policies when they do not have the necessary basic information. Our interviews suggest that for the majority of forces evaluation consists of subjective judgments passed up and down the command structure and made during the process of internal review or inspection. Since the lack of hard data presented problems for us as researchers we can only assume that it presents similar problems to H.M. Inspectors of Constabulary when conducting external inspections.

There are a number of detailed ways in which recording pre-court decisions could be tidied up. For example our finding on no further action decisions suggest that they should be recorded in a way that distinguishes between those cases where there is an obstacle to prosecution and those where it is decided to take no further action even though the criteria for a caution or prosecution have been met. Consideration should be given to

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whether no further action decisions of the latter type and informal warnings should be recorded on personal records or solely as part of the monitoring process in order to avoid the dangers of net-widening.

Our research also suggests that there are a number of ways in which greater uniformity of policy and practice could be achieved. Circular 14/ I985 treats no further action decisions as interchangeable with informal warnings and encourages diversion from the system by increased use of both. Our interviews suggest that in practice no further action is usually accompanied by informal words of advice so that greater uniformity might be achieved if all forces used either informal warnings or no further action in these circumstances. In either case they should meet the same criteria as those for a caution. Although the confusion between no further action and informal warnings makes it difficult to assess if the circular has achieved its aim of increasing their use and thus increasing diversion from the system our findings suggest that this aspect of the circular needs to be reinforced.

Our findings also suggest that the question of whether instant cautions are any more desirable than instant prosecutions should be reconsidered particularly if they are made in circumstances where an informal warning might be more appropriate, that is, when first offenders have committed trivial offences.

In setting out a wide range of pre-court decision options, at least with juveniles, and implying that forces could take up all or part of the range on offer, the circular arguably creates a situation where there is likely to be less rather than more uniformity of policy. Consistent policies, however, without mechanisms to enforce them are no guarantee of consistent practice. The circular is open to the criticism that it advises forces what to do but not how to do it. Even if it had suggested that forces adopt uniform cautioning policies, these would not be consistently implemented without placing limits on individual discretion and without mechanisms to regulate it in practice. The fact that forces are unable to define precise criteria for judging whether a caution or a prosecution is appropriate, even with respect to legal variables concerning the seriousness of the offence or the offender’s record, is reflected in the belief among the majority of forces that ‘each case should be judged on its merits’. How serious offences and serious records are defined in practice is central to the question of how to regulate discretion in order that it is exercised consistently. Sanders (1988) argues that:

At present diversion decisions are generally made at the relatively low Inspector and Chief Inspector level. Low visibility in all contexts makes discretion almost impossible to regulate, producing the inconsistencies and abuses we all acknowledge. (p. 525)

There are, however, ways in which discretion could be better regulated for example by defining tight criteria for judging the seriousness of offences in terms of monetary values or degrees of violence scales, by subjecting individual decisions to consistent gatekeeping or by centralising decision making. Perhaps for guidance to be effective in producing uniform

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approaches to cautioning in practice greater attention needs to be given to this level of detail and to the question of enforcement.

Finally our research suggests that another potential source of a lack of a uniform approach to juvenile cautioning concerns consultation arrange- ments. These vary both between and within forces. For a major plank in cautioning policy surprisingly little is known about the effect of different systems on outcomes or about how discretion is exercised by the various professional interests involved although our findings, like other recent research, suggests that different professionals may have very different agendas (Davis, Boucherat and Watson 1989).

We share Pratt’s (1986) concern that the increased use of cautioning heralds a shift from ‘judicial’ to ‘administrative’ justice and so to some extent from the public to private domain where it is open to less scrutiny and more unfettered discretion. For this reason whatever the limits to achieving consistency of outcomes in the form of cautioning rates we ought at least to strive for consistency of approach in the form of uniform policies and practices. Circular 1411985 has gone some way to achieving this and we have made some suggestions about how it might be further developed. ’

Note

’ Acknowledgements: we would like to acknowledge the helpful comments made by John Baldwin, Roger Leng and Andrew Sanders of the Law Faculty, University of Birmingham, and the anonymous referees of this journal.

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