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Criminal Defence Blog

Archive for November, 2015

Can I Challenge or Remove A Caution After Accepting It?

Can I Challenge or Remove A Caution After Accepting It?

 

If you have accepted a caution in relation to an offence and now wish to challenge it or have it removed for some reason, the brief answer is that yes, such a thing is possible.  It is not, however, easy or straightforward, and you will certainly want to take specialist legal advice.

 

This page is designed to provide an overview of the ways of challenging or removing a caution.  Contact us for advice about your specific circumstances.

 

Forrest Williams solicitors

 

Essentially the potential routes to removal are:

 

(1) by way of complaint about the use of and manner in which it was administered. So consider if there was anything to suggest they did not follow their correct procedure.  Of course, this requires knowledge of what correct procedure is, so specialist legal advice should be sought on this point.

 

(2) issue judicial proceedings (see outline below). Warning: this is a costly procedure and losing can mean there are even greater costs implications in respect of covering expenses incurred by the other side.  Proceed with caution!

 

An outline of Judicial Review in reference to Caution

 

Where a simple caution has been accepted by the offender, and administered by the police, there is no formal right of appeal. However the caution may be challenged by making a formal complaint against the police force, and by making an application to be judicially reviewed.  Judicial review is the mechanism by which the courts ensure that public bodies have acted within the powers they have been given.

 

Procedure

 

Judicial Review may be made against any public body or if the body making the decision is exercising a public law function.  Any individual wishing to make an application must have sufficient interest in relation to the matter in which the claim relates. In relation to a caution, any individual who receives a caution will be deemed to have sufficient interest to make the claim, as they are personally affected by a police force’s decision.

 

An application for Judicial Review of a caution must be filed promptly, and within a period of no more than 3 months, after which the grounds for Judicial Review arose. Although an application may be made out of this time period this is only in exceptional circumstances. Any application should be made without any undue delay.

 

Challenges

 

An application for Judicial Review of a caution can be challenged on the basis of Illegality; where the police force has acted without legal authority. The police force are required to ensure that all the relevant steps are complied with and that a caution is appropriate in the circumstances. The police must: 

 

  1. Ensure that the offender understands that they do not have to make an immediate decision on whether to accept the simple caution but can consider the matter and, if need be, take independent legal advice; 

 

  1. Ensure the offender understands that they have the right to legal advice at any time during the process; 

 

  1. Ensure that the offender understands the effect of the simple caution and the implications of accepting the caution;

 

  1. Ensure that the offender has made a clear and reliable admission of guilt in respect of the offence or offences for which the simple caution is being administered; 

 

  1. Confirm that the offender consents to receiving a simple caution; 

 

  1. Ask the offender to sign a form setting out the implications of the simple caution (“the simple caution form”); 

 

  1. Sign the simple caution form themselves and provide the offender with a copy to take away. 

 

If the police have failed to comply with any of the above requirements, or those set out in the PACE codes, then the court may consider it suitable to quash the caution altogether.

 

If you would like to challenge or remove a caution, contact our expert team for further advice on 0800 1933 999.

 

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