Criminal Justice Act 2003, section 23

The five requirements

Part 3 Conditional cautions

(1)The first requirement is that the authorised person has evidence that the offender has committed an offence.

(2)The second requirement is that a relevant prosecutor[F9 or the authorised person F9] decides—

(a)that there is sufficient evidence to charge the offender with the offence, and

(b)that a conditional caution should be given to the offender in respect of the offence.

(3)The third requirement is that the offender admits to the authorised person that he committed the offence.

(4)The fourth requirement is that the authorised person explains the effect of the conditional caution to the offender and warns him that failure to comply with any of the conditions attached to the caution may result in his being prosecuted for the offence.

(5)The fifth requirement is that the offender signs a document which contains—

(a)details of the offence,

(b)an admission by him that he committed the offence,

(c)his consent to being given the conditional caution, and

(d)the conditions attached to the caution.

Definitions used in section 23 4

authorised person

“authorised person” has the meaning given by section 22(4),

Defined in s.27 · see it in the full Act

(4) In this Part “authorised person” means—

(a)a constable,

(b)an investigating officer, or

(c)a person authorised by a relevant prosecutor for the purposes of this section.

Defined in s.22(4) · see it in the full Act
the offender

“the offender” has the meaning given by section 22(1),

Defined in s.27 · see it in the full Act
relevant prosecutor

“relevant prosecutor” means—

(a)

the Attorney General,

(b)

the Director of the Serious Fraud Office,

(ba)

...

(c)

the Director of Public Prosecutions,

(d)

a Secretary of State,

(e)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)

a person who is specified in an order made by the Secretary of State as being a relevant prosecutor for the purposes of this Part.

Defined in s.27 · see it in the full Act
conditional caution

(2) In this Part “conditional caution” means a caution which is given in respect of an offence committed by the offender and which has conditions attached to it with which the offender must comply.

Defined in s.22(2) · see it in the full Act

“conditional caution” has the meaning given by section 22(2),

Defined in s.27 · see it in the full Act

Cases considering section 23 3

Owusu-Yianoma, R (On the Application Of) v Chief Constable of Leicestershire

[2017] EWHC 576 (Admin) · 1 February 2017Interprets

The court treated section 23 as imposing cumulative pre-conditions for a conditional caution. Those conditions had to be satisfied in relation to the offence for which the caution was ultimately given. (see paras [13], [16], [25]-[27]) The court held that the decision-maker’s assessment that there was evidence the offender committed the offence had to concern the offence being cautioned and had to precede the admission. (see paras [13], [24]) The court held that sufficient evidence to charge must exist for the specific offence forming the subject of the caution. The section 4A caution failed this statutory pre-condition because the evidence did not establish actual harassment, alarm or distress. (see paras [16], [19]-[25]) The court treated the evidential decision as one that had to be made before the admission incorporated into the caution documents. The later admission could not cure the decision-maker’s failure to establish sufficient evidence for the section 4A offence. (see paras [19]-[25])

Guest v Director of Public Prosecutions

[2009] EWHC 594 (Admin) · 5 March 2009

Applies the five statutory requirements for a conditional caution. The decision was defective because the evidence and public interest considerations did not justify diversion, and the applicable guidance did not permit cautioning for the alleged offence. (see paras [6], [41]-[47]) Applies the requirement for evidence that the offender committed an offence. The admissions, photographs and injury evidence supported the conclusion that the evidential threshold for prosecution was met. (see paras [6], [43]) Applies the requirement that a relevant prosecutor decide both that there is sufficient evidence to charge and that a conditional caution should be given. The first conclusion was conceded, but the second was fundamentally flawed because prosecution was required by the evidence, public interest and guidance. (see paras [6], [30], [41]-[47]) Confirms the statutory admission requirement as part of the conditional-caution procedure. The interested party’s admission supported the court’s conclusion that a later prosecution would not necessarily be abusive after the caution was quashed. (see paras [6], [51]) Confirms the requirement to explain the caution and warn of the consequences of non-compliance. The provision forms part of the statutory context, but no separate breach of this requirement was determined. (see paras [6], [41]) Confirms the documentary requirements for a conditional caution. The court referred to the statutory scheme but did not determine a separate issue concerning the caution document. (see paras [6], [41])

Robson, R (On the Application Of) v Crown Prosecution Service

[2016] EWHC 2191 (Admin) · 29 July 2016

Confirms that the relevant prosecutor must decide whether a conditional caution should be given. That discretion could not lawfully be replaced by an absolute policy excluding all domestic violence cases (see paras [7], [32]-[34]).

What each judgment says about section 23 is in the case-law panel in the full Act.

Explanatory note

161.Section 23 sets out the requirements which need to be met for a conditional caution to be given. The requirements are that there is evidence against the offender; that a 'relevant prosecutor' (as defined in section 27) considers that the evidence would be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of what the caution (and failure to comply with it) would mean; and that he or she signs a document containing details of the offence, the admission, the offender’s consent to the caution, and the conditions imposed.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F9Words in s. 23(2) inserted (8.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), ss. 133(3), 151(1); S.I. 2013/453, art. 4(c)