Be cautious over ‘formal cautions’ at your pub

I imagine that most people understand the concept due to the frequency with which “convictions or cautions” must be disclosed, for example, when applying for a job.

It is worth being clear about what that involves prior to looking at the other most common and confusing alternative use of the word.

An enforcing body may offer an offender a formal caution as a direct alternative to prosecution. This will mean that there is sufficient evidence in the mind of the prosecuting authority to take the matter to court, but that they have decided, because of a variety of mitigating circumstances, that a formal caution will suffice.

The recipient of the formal caution must, however, have admitted the offence. In other words, the police or local authority cannot compel an individual to accept a formal caution if, for example, they have maintained their innocence throughout the investigative process.

That would amount to an abrogation of their rights and in such circumstances the prosecuting authority would have to limit themselves to a letter of warning or prosecute the individual or company in the courts. The latter would permit the individual or company to plead not guilty and have a trial before a court.

The other circumstance, in which the word ‘caution’ may arise, is earlier in the investigative process. This will be when a company or individual is ‘invited’ by the local authority or police to attend an “interview under caution”.

My experience suggests that individuals will often believe — especially if the invitation has been made in conversation or over the telephone — that they are in fact being offered a formal caution.

The interview under caution is in fact a much earlier stage of the process and occurs long before any decision will be made as to whether a formal caution should be offered or not.

Even if such confusion does not exist, it is worth understanding what the interview under caution is about.

The interview will often be explained to the interviewee as an “opportunity for them to present their side of the case”. This suggests that in some way the investigating authority is doing them a favour.

This is not the case. While it may not be inaccurate to say that it is an opportunity for the individual or company to present their side of the case, it is also an important part of the investigative process from the point of view of the investigating officers.

Their aim in conducting an interview under caution will be to secure admissions from the individual or company representative being interviewed so as to considerably strengthen their case and make the chances of conviction that much stronger.

In the future I will look more closely at the pitfalls of the interview under caution, but suffice to say that the process should rarely be undertaken without having a solicitor present.

The manner in which the interview is approached may, ironically, lead to a formal caution being offered rather than a full prosecution or, indeed, may lead to no action being taken at all.