4. Conditional caution

A conditional caution (Criminal Justice Act 2003, s.22) requires an offender to comply with conditions, as an alternative to prosecution. The conditions that can be attached must be rehabilitative, reparative and/or a financial penalty. (If the offender is a “relevant foreign offender” – that is someone without permission to enter or stay in the UK, conditions can be offered that have the object of effecting departure from and preventing return to the UK.) Before the caution can be given, the offender must admit the offence and consent to the conditions.

When sentencing an offender who has received a conditional caution in respect of an earlier offence:

  • a conditional caution is not a previous conviction and, therefore, is not a statutory aggravating factor;
  • however, if the conditional caution is recent and is relevant to the current offence it may be considered to be an aggravating factor;
  • the offender’s response to the caution may properly influence the court’s assessment of the offender’s suitability for a particular sentence, so long as it remains within the limits established by the seriousness of the current offence.

Approach to sentencing for offence for which offender was cautioned but failed to comply with conditions

If the offender fails, without reasonable cause, to comply with the conditional caution, he or she may be prosecuted for the original offence. When sentencing in such a case:

  • the offender’s non-compliance with the conditional caution does not increase the seriousness of the original offence and must not be regarded as an aggravating factor;
  • the offender’s non-compliance may be relevant to selection of the type of sentence. For example, it may indicate that it is inappropriate to include certain requirements as part of a community order. The circumstances of the offender’s failure to satisfy the conditions, and any partial compliance, will be relevant to this assessment.