Almost a year ago, with much fanfare, the Ministry of Justice announced that it was issuing new guidance to encourage the police to offer conditional cautions to individuals accused of accessing indecent images of children (“IIOC”) online.

This new guidance was never made publicly available. But the powers the police have to issue conditional cautions for IIOC allegations are clear.

 Before a conditional caution can be administered the public interest test must be applied. Several other conditions must also be met.

 Firstly, there has to be sufficient evidence to charge. Secondly, the offender must sign a document admitting to committing the offence and consenting to the caution. Third, the conditions attached to the caution must be explained to the offender as well as the consequences of any breach. In IIOC cases, typically the conditions attached will include a requirement to attend counselling, normally in the form of a sexual offender’s treatment program.

Finally, it is important to bear in mind although a conditional caution does not count as a conviction, it does appear on an individual’s criminal record and also trigger the requirements of the sex offenders notification register.

 This initiative was welcomed by many as part of an effort to divert offenders, many of whom did not pose any risk of contact offending, away from prosecution. BSQ have long supported such a policy (see our previous posts.)

However, anecdotal evidence gathered by BSQ from experts practising in the field suggest that the use of conditional cautions across the country since November 2018 is, at best, infrequent, patchy and inconsistent.

 At BSQ we deal with a large number of such cases and our lawyers regularly ask the police if our clients are eligible for a conditional caution scheme. Rarely are our overtures met with a positive response.

 Echoing our own experience, one expert psychologist we contacted said that they had “very rarely” come across conditional cautions and that often conditional cautions were only considered in cases where the police and CPS doubted if they had a reasonable prospect of conviction because of evidential problems. 

 Twelve months on from the Ministry of Justice’s announcement it therefore seems that, on the ground, very little has changed when it comes to the rollout of conditional cautions.  Reviewing the implementation of their policy guidance should be a priority.

 You can read more about our expertise in defending individuals accused of indecent images charges here.

If you require advice and representation in connection with an indecent images investigation please contact our London offices.