For a longer version please see: https://www.bandonsolicitors.com/the-adult-cautioning-scheme-long-version/
The adult cautioning scheme came into operation in 2006. The scheme relates to offences listed in Appendix A committed on or after the commencement date of the 1st of February 2006. This was subsequently updated in December 2020. This saw the introduction of four additional offences in Appendix A committed after the 14th of December 2020.
The scheme only applies to persons ages 18 or over where they can receive a caution instead of a prosecution for the criminal offence committed. The principal purpose of the Scheme is to divert from prosecution, adults who are unlikely to re-offend. The list of criminal offences this Scheme can be used for however, is exhaustive and will be set out at the end of this piece for completeness.
The factors that must be considered before a caution will be administered to an offender will be set out here:
- Obvious evidence of the offender’s guilt
- The offender must admit to the offence because if they do not a caution cannot be administered
- They must understand that they are being cautioned and the significance of it
- The offender must give informed consent where they can consult with a solicitor before agreeing to or denying the caution.
They must also look consider the public’s interest to administer the caution to the said offender and the views of the victim if there is one.
If it has been decided the offender will get a caution, it will usually be delivered in a Garda Station. Here the offender will sign an undertaking that they agree and understand the caution and that it will be mentioned if they appear before a court and the judge asks if they have any previous convictions.
An offender unless for exceptional circumstances will not be administered with a second adult caution for any offences and will instead have to go through a prosecution.
Impact on Garda Vetting
There may be an impact on Garda Vetting if an offender has received an adult caution. It will only be of significance in the specified information section of the form according to the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 if there are concerns a finding or allegation of harm to another person (usually child or venerable person). Therefore a section 3 Misuse of Drugs Offence or a section 3 Casual Trading Offence would not be included as these do not amount to concern about the safety and protection of a child or vulnerable person.
They must also consider what relevance the adult caution would have to the type of work the Garda vetting is being applied for and how much contact the subject of the Garda vetting would have contact with children of venerable people.
Once the Chief Bureau Officer has decided to disclose the information they have to notifying the subject of the application for vetting in writing of the information they have and reasons for disclosure. The subject can then make a written submission within 14 days. Once this has passed and the subject has not made an appeal the person who requested the Garda vetting will be made known.
An appeals officer will then be appointed to the appeal and wither affirm or set aside the determination of the Chief Bureau Officer in whole or in part and replace it with the new decision. If the subject of the Garda Vetting still is not happy with the disclosure of their Adult Caution, they can appeal to the High Court on a point of law. This will be the final and conclusive appeal for the person.
Appendix A – Scheduled Offences from the Adult Cautioning Scheme Policy Document
Criminal Justice (Public Order) Act, 1994
Section 4: Intoxication in a public place
Section 5: Disorderly Conduct in a public place
Section 6: Threatening, abusive or insulting behaviour in a public place
Section 8: Failure to comply with direction of a member of An Garda Síochána
Section 9: Wilful Obstruction
Section 11: Entering building etc. with intent to commit an offence
Section 13: Trespass in a manner likely to cause fear, included as an offence from the 14th December 2020
Section 21: Failure to comply with Garda directions controlling access to certain events, included as an offence from the 14th December 2020
Section 22: Surrender and seizure of intoxicating liquor
Criminal Justice (Theft and Fraud Offences) Act, 2001
Section 4: Theft (where the value of the property concerned is less than €1,000)
Intoxicating Liquor Act, 2003
Section 6: Offences by a drunken person
Section 8: Disorderly conduct
Non-Fatal Offences Against the Person Act, 1997
Section 2: Assault (Assaults on a member of An Garda Síochána shall be forwarded to the Director of Public Prosecutions)
Criminal Damage Act, 1991
Section 2: Damaging Property (where the value of the property damaged is less than €1,000)
Section 3: Threat to damage property
Criminal Justice (Theft and Fraud Offences) Act, 2001
Section 8: Making off without payment (where the value of the payment is less than €1,000)
Section 17: Handling stolen property (where the value of the property concerned is less than €1,000)
Section 18: Possession of stolen property (where the value of the property concerned is less than €1,000)
Dublin Police Act, 1842
Section 14(12): Nuisances in Public thoroughfares (applies to Dublin Metropolitan (Court) District Only)
Intoxicating Liquor Act, 1927
Section 17: Persons on licensed premises during prohibited hours
Licensing Act, 1872
Section 12: Public Drunkenness
Summary Jurisdiction (Ireland) Amendment Act, 1871
Section 8: Offensive or riotous conduct in a theatre or other place of public amusement (applies to Dublin Metropolitan (Court) District only)
Misuse of Drugs Act 1977
Section 3: Possession of cannabis or cannabis resin a controlled substance.
Commonly referred to as ‘simple possession’ or possession for personal use, included as an offence from the 14th December 2020
Casual Trading Act, 1995
Section 3: Casual trading without a licence or contrary to the terms of the licence included as an offence from the 14th December 2020
By Andrea McCarthy