Youth caution - can it be revoked?

[partystress]

Long story, but DS (14) has been issued a youth caution, which it seems will never be completely cleared as it would not be filtered on a DBS check. We are shocked to say the least as the interviewing officer told us that a caution would be worst case scenario, but would in any event be wiped clean when DS is 18.

Having spent the night googling, it seems the latest Ministry of Justice guidelines state that an offence within his category (3) on the gravity factors matrix should generally be triaged into an informal disposal, and that even category 4, where there are mitigating factors, can be dealt with informally. There were multiple mitigating factors in his case and the offence was at the lowest severity it could be to count as a category 3 in the first place. We feel the guidelines have not been followed and he has been dealt with disproportionately harshly.

It appears cautions are simply issued, and do not have to be accepted. Does that mean he is now stuck with this for life, or is there some appeal process? He is a talented sportsman who is being encouraged to move into coaching roles, and the DBS checks would shut this avenue down. I would be very grateful for any advice.

What was the offence?

Not enough information here but to have a caution set aside may not be straightforward or cheap. Do you have money to seek legal advice?

There's no formal right of appeal but you can write to the chief constable of the administering force and ask for a revocation

The issue is that a caution can only be administered if the recipient clearly accepts that an offence has been committed and agrees to accept the caution. A form is signed to that effect. So your DS must have accepted the position.

Re: disclosure, it's not an absolute bar to working with children and vulnerable adults but the facts and circumstances surrounding its issue would be taken into account by an organisation/company. So your DS will need convincing reasons as to why the behaviour was a one off etc.

Who was there when the caution was issued? What was your DS told?

Also - did your DS have a lawyer or an appropriate adult accompanying him when the caution was given?

Bang on what Gobbo says. I work for a dept that would deal with this sort of thing. I've not heard of caution being issued without having to accept it. Exceptional circumstances for removal usually mean the offence has to have not occurred. Was this an honesty offence or violence offence or what?

Sorry - my first post was unclear. Your DS must have accepted the facts and circumstances asset out by the police. He doesn't need to necessarily have accepted the caution per se.

phew buck! I am a lawyer but not a criminal one.

However, did have this looked into as a favour for a client who had a DC in a similar position - in fact the circumstances were very similar.

Are you certain the offence will not be filtered? The list of offences which will never be filtered covers serious offences, offences relating to sexual or violent offending and offences relevant in a safeguarding context.

It appears cautions are simply issued, and do not have to be accepted

A youth caution can only be issued if there is a clear, reliable admission of guilt.

DBS checks would shut this avenue down

Not necessarily. If the caution is for an offence that won't be filtered it will be revealed to the potential employer. It is then up to the employer to decide whether the caution is relevant and, if so, whether to bar the applicant from the job.

Thank you all. The offence has been classified as ABH - which is why it does not clear from DBS. Playground incident which resulted in the other boy losing a tooth (temporarily I now understand). Mitigating factors include unpremeditated, single blow, remorse, health factors affecting DS at the time. Absolutely out of character and first offence. School were very supportive and dealt with it via short term exclusion.

We were offered a solicitor at the initial interview. I declined but said I would ask for one if it seemed like we would need one. At no stage during the interview was there a suggestion that it would lead to a permanent implication. In fact the police officer said 'the last thing we want to do in the youth justice system is criminalise 14 year olds for things that happen at school."

It was left that the police officer would speak to a 3rd party witness and then possible go back to the victim to question him about a discrepancy regarding provocation. He said we would hear whether the disposal was restorative justice or a caution. Such caution to be removed if DS kept his nose clean up to age 18.

So, we were shocked to get the caution last night at a different police station and be told that this caution will never really be spent, insofar as it is on a list of offences which are never filtered out of DBS search results.

My feeling that - if there is such a process - we have grounds to challenge is our failure to take legal advice at the time based on the false reassurance of the interviewing officer and the harshness of the disposal when viewed again the MoJ guidelines which say:

"The term ‘triage’ describes the process by which children and young people can be diverted away from formal court or out-of-court processes, and dealt with through informal measures. Offences with a gravity score of 3 or below, or with a higher gravity score and mitigating factors, should always be considered for diversion.

The triage process can apply to first offences, and also to low gravity offending amongst children and young people who have already received a formal disposal, if the assessment indicates that diversion is the most suitable outcome. " www.gov.uk/government/publications/use-out-of-court-disposals/use-out-of-court-disposals-section-1-case-management-guidance

He knows hitting the boy was wrong and he was already filled with regret. The thought of this hanging over him forever though and limiting his career choices is just devastating. Do we have any hope of challenging it do you think?

Tbh I think that hitting another child at the age of 14 isn't going to cause anyone too much worry if it comes up on a DBS check.

I think if he gets to the stage of being able to say that that is what it was, then yes I would hope that would be true lougle. My worry is that he gets screened out automatically.

I'd need to check the list but I agree with you that I don't think that will be filtered.

I don't want to be a doom monger but I'm not sure how much weight the fact you declined legal advice will carry. Ultimately, it was offered and you - as the parent - declined it. It's not the role of the police to look after your interests and any ad hoc "guidance" by them should always be listened to with caution (excuse the pun) or checked by a lawyer.

To reassure you though: I am an employment lawyer and am aware of various examples of doctors and dentists who have cautions for similar youthful indiscretions and are still able to practice. The key thing is to be totally up front and honest with any organisation before any DBS check comes through plus to show insight into what happened. Certainly set out the mitigating circumstances but your DS should also acknowledge that his response was inappropriate. If not, there will be concern that the same mitigating circumstances could arise again and your DS hit a vulnerable person

Most organisations that require DBS screening have policies regarding how they deal with any cautions/offences etc. Part of that is how they screen and assess risk. Therefore it's unlikely that your DS would automatically be disqualified from any role (given the nature of the caution) so long as he can give a good account of what happened and demonstrate appropriate remorse.

Thank you gobbo. That is reassuring. However, if there was a way of avoiding angst every time he applies for something by getting a more proportionate disposal now, that would feel much fairer.

He wouldn't, or shouldn't, be automatically disqualified. The usual process would be that he applied in the normal way but disclosed details of any criminal record in a sealed envelope, which would be reviewed by an appropriate person and shouldn't be shared more than necessary.

I agree with Gobbo that as long as he is honest and upfront, he shouldn't have too much of an issue, companies will just want him to show that he is remorseful and has never done anything like it again.

I think you may be better to reassure him of that, as I don't think you have many grounds for appeal. You were offered legal advice and turned it down - you can't be forced to take it and don't have to. The MoJ guidelines are just that, too, guidelines - in this case, it's decided that a caution is the relevant punishment.

ABH is an offence that isn't filtered.

The offence has been classified as ABH - which is why it does not clear from DBS

ABH is filtered (i.e. removed from DBS checks). GBH is not. However, offences involving bodily injury to a child or young person are not filtered so that may be the problem.

As OneBreath says, he shouldn't be automatically disqualified from any post. Employers are required to have a policy on how they will deal with DBS disclosures. They should not have a blanket policy that they will only employ people who have a completely clean check. As others have said, he needs to be open with potential employers and tell them about this offence before they see it on a DBS check. Failing to disclose will be far more damaging to his chances than anything else.

ABH is an offence that isn't filtered

Apologies. My bad. OneBreath is correct. ABH is not filtered. I misread the list.

I honestly don't think that hitting someone (once) the same age as you when you're 14 will cause any problem in the future. He will have to explain it, which is a pain, but I strongly doubt it will go against him.

As far as you're aware, was the interview at which the police officer told us that a caution would be worst case scenario, but would in any event be wiped clean when DS is 18 recorded, OP?

I work in care, many of the employees where I work have "youthful indiscretions" recorded against them, drugs, being in fights, assault, minor dishonesty. Provided they have not been repeat offenders over the years that follow and have two good references it does not adversely affect them.
These matters clear from a general DBS search as they become spent, but not from an enhanced one that you need to work with children or vulnerable adults.

P.S. never ever be interviewed by the police without a solicitor present and don't accept what a police officer tells you about cautions etc. without checking it out with your solicitor. I see OP that provocation was mentioned - did you go into the area of self defence? If it is at all an issue it should have been raised I interview as the onus is then on the prosecution to disprove. ( I used to be a criminal defence solicitor)

Yes the interview was recorded. I have spoken to the school today who are also V surprised at this turn of events as the police did not approach them for witness statements. The school would have attested to remorse, so that is a mitigating factor that he has been denied. It happened 4 weeks before summer holidays began, but then lay on someone's desk until 2 days into the hold, so I think police just wanted shot of it, school was closed etc.

I do now appreciate we should have had a solicitor, but honestly at no point felt there was a risk of any long term consequences (provided, of course, he stayed well away from trouble from now on). In fact, I remarked to a friend that it was a bit too gentle and nice, and I hoped it hadn't had the effect of reducing his sense of how serious it was.

If anyone can tell me whether there is any avenue to query the caution process or how far YOTs need to justify themselves with regard to going against MoJ guidelines, I would be really grateful. Thank you to everyone who has taken the trouble to post already.

If I understand correctly, he accepted a caution because the officer told him it would be wiped, which is not true. You can't unaccept a caution really. But perhaps the right you're would be to complain through Professional Standards Dept at the force - can ring 191, ask for the right force, then PSD, or maybe better to write (you/he will have to put it in writing at some point). Alternatively or as well, or they may suggest, write to the Chief Constable about it (this will get it passed to the right dept in that force). I'm not that knowledgeable about the situation you are in, but it's not uncommon. I think there should be a cooling off period for cautions....

It used to be that cautions did come off your "criminal record" but that got changed and they actually got put back on. I take a couple of calls a month from people upset over this, from cautions many years ago.

If this advice was given in a recorded interview, your son can ask for a copy of the recording by making a subject access request (cost £10) to that force, form will be on their website, or just write and ask ( give 2 forms of ID too).

Sorry, that's 101, not 191! Phone typing!

Thanks buck. I am waiting to hear from the school as to whether they can provide any further support. I guess a complaint against the police might be a way forward - especially if, as it appears, they forwarded a case file with no evidence from any adults at all, just the victim and my son, and another boy who they both named as having been close by at the time, but who I think did not add much. However, my real beef is with the 'sentence' which seems way out of line with anyone's expectations and with current guidelines.