Challenging or removing a caution after accepting it

If you have accepted a caution in relation to an offence but wish to challenge or have it removed, you will have to undergo procedures which are not straightforward or easy so it is recommended you seek advice from a specialist lawyer.

Potential routes to remove cautions

  • The use and manner in which the case was administered, for example if correct procedures were not carried out. This route will involve the need of prior knowledge of the correct procedures, so will require specialist legal advice.
  • Issue judicial proceedings (see below) this route should be preceded in caution as it’s an expensive procedure that will have greater implications in expenses, if the case is lost.

Judicial review outline in reference to caution

When a simple caution has been accepted by the offender and administrated by police, there is no formal right of appeal. However, it can be challenged through the process of filing an application to be judicially reviewed as well as making a formal complaint against the police force.

Judicial Review is the mechanism by which the court ensures the public bodies have acted within their entitled powers.

Judicial review procedure

Judicial Reviews may be made against any public body, or if the body making the decision is exercising a public law function. Any individual that wishes to make an application must have sufficient interest in relation to the matter the claim relates.

In relation to the caution, individuals who have received the caution will be deemed to have sufficient interest filing the claim, as they are personally affected by the police force’s judgement.

An application for Judicial Review of a caution must be filed within a period of no more than 3 months after the grounds for Judicial Review arose. Any application should be made without delay, although through exceptional circumstances an application can be made out of the time period.

Challenges

A Judicial Review application of a caution can be challenged on the basis of illegality. Meaning the police force has acted without legal authority. It is required that the police force ensure all relevant steps are obeyed and that issued cautions are appropriate in circumstances.

By law the police must:

  • Ensure the offender understands they are not required to make immediate decision on accepting a caution, as well as consider the matter and, if need be, take legal advice.
  • Ensure the offender understands they have the right to legal advice at any time through the process.
  • Ensure that the offender understands the effect of a simple caution and the implications of accepting a caution.
  • Ensure the offender has made a reliable and clear admission of guilt in regards to the administrated offence or offences.
  • Confirm the offender agrees to receive a simple caution.
  • Ask the offender to sign a form setting out the consequences of the caution “the simple caution form.”
  • Sign the simple caution form themselves and provides the offender with a copy.

If the police have failed to comply with any of the essential requirements above, or those set out in the PACE codes, then the courts may consider quashing the caution.

Posted on January 29th, 2016 in Legal Advice

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E: info@esnsolicitors.co.uk

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