The Adult Cautioning Scheme came into operation in February 2006 under HQ Directive 06/2006 and 46/2006. While it came into effect by these HQ Directives according to Minster for Justice, Equality and Law Reform Mr. McDowell in the 5th of April 2006 Dáil debates… “the scheme operates on a non-statutory basis and under common law powers of the Garda Síochána”. This scheme relates to offences listed in Appendix A committed on or after the commencement date of the 1st of February 2006.

However, these directives were subsequently replaced by the An Garda Síochána Policy Document introduced by HQ Directive 16/2020 on the 14th 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 sets out very clearly certain sections of various acts which will be set out at the end of this piece for completeness.

Factors to be Considered in Deciding on a Caution
Even though a person can receive a caution for the offences listed in this scheme instead of a prosecution in the District Court, it does not mean they always will. It is at the discretion of the Gardaí whether they will or not. The investigating Garda with approval by the Superintendent must take into account:

a) the conditions set out at page 3 of the policy document are met
b) the public interest,
c) the views of the victim

 

(a) Conditions to be met
The conditions that must be met before a caution is administered will be set out here:
1. There must be prima facie evidence of the offender’s Guilt
2. The offender must admit to the offence because if they do not a caution cannot be administered
3. After the offender has admitted to it, they must understand that they are being cautioned and the significance of it
4. The offender must give informed consent where they can consult with a solicitor before agreeing to or denying the caution.

(b) The Public Interest
The public interest element must take into account the circumstances and ingredients of the offence and also the offender as to whether it is of interest to issue them with a caution or not. For example if they have no previous offences a caution might be enough to deter them from re offending without having to prosecute them. Thus, if the accused had a recent conviction or more than one conviction this would point to the person being unsuitable for adult caution, but the circumstances of each case should be looked at to see if cautioning is appropriate. The consent of the DPP should be sought in such cases.

(c) The views of the victim
The scheme also clearly states that “The effect on the victim of the offence in question and any reason advanced by them as to why a caution should not be applied must be carefully considered before a decision is taken on whether to prosecute or to caution.”

The Gardaí must consider administering a caution for every adult that is suspected of a scheduled offence. If, however, an offender has not been considered for an Adult Caution in relation to an offence covered by the Scheme the offender may request that they are considered by the Superintendent.

Delivering the caution
If it has been agreed by all parties that the offender will take the caution, they will be issued with the said caution usually in a Garda station. The offender will have to sign an undertaking that they agree to same and that they understand what they are agreeing to. When an offender agrees to the caution, they are also agreeing to the caution being “made known to a court in the event of a subsequent conviction for a criminal offence or in civil proceedings” which is set out at page 4 of the policy document.

Can an adult caution be administered more than once to the same person?
If the accused was subsequently caught for example under the scheduled offence Section 3 Misuse of Drugs Act 1977 with cannabis or cannabis resin, Can the Gardaí administer another caution if the re-offender has been issued with a previous caution under this scheme?

The Gardaí must not only consider under this particular offence of Misuse of drugs whether the type, quantity and value of the drug disclosed amounts to simple possession for personal use. They must also consider would it be appropriate to apply it to a person who has been previously cautioned.

The nature of a caution is that it should be applied only once to an offender but it may, in the most exceptional circumstances be applied a second time. The exceptional circumstances as set out in the Scheme are:
“Where the subsequent offence is minor in nature; or
Where there has been a substantial lapse of time since the first caution so as to suggest that it may have been of real benefit. ”

Therefore the short answer the question posed above is that the re-offender would not be administered with a subsequent caution unless it was an exceptional circumstance and instead would have to go through a prosecution.

The relationship between Garda Vetting and Adult Cautions
On a Garda vetting form there are sections for criminal records and specified information. According to section 2 the interpretation section of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 (hereinafter called the 2012 Act), specified information is described as follows:

“specified information”, in relation to a person who is the subject of an application for vetting disclosure, means information concerning a finding or allegation of harm to another person that is received by the Bureau from—
(a) the Garda Síochána pursuant to an investigation of an offence or pursuant to any other function conferred on the Garda Síochána by or under any enactment or the common law “

As specified at the introduction of this written piece the Adult cautioning scheme came about from common law powers of An Garda Síochána and therefore the fact that an accused has had the benefit of an Adult Caution might be constituted as relevant “specified information” if it is in relation to allegations or findings of harm for the purposes of Garda Vetting.

Section 14 (1)(a) of the 2012 Act gives the National Vetting Bureau permission to make enquiries to the Garda Síochána as it “it deems necessary to establish whether there is any criminal record or specified information relating to the person”. If a member of staff in the bureau according to section 14 (3) considers there is specified information relating to the person who is the subject of the vetting then they will transfer it onto the Chief Bureau Officer for an assessment and determination of what should be disclosed.

Given that specified information is concerned with allegations or findings of harm, one should be able to argue that the administration of an adult caution for a S. 3 Misuse of Drugs Offence or a S. 3 Casual Trading Offence that received a caution would not be included in the specified information disclosed as these do not amount to findings or allegations of harm to another person.

Assessment of specified information by the Chief Bureau Officer
Section 15(1) contains details of what the Chief Bureau officer shall do when a matter is referred to them under section 14 (3). It states that they must notify the subject of application for vetting and furnish the subject with a summary in writing of the specified information relating to them.

They must also inform them that they may make a written submission in relation to the concerned specified information. In 15 (2) it states that this submission can be made no more later than 14 days to the Chief Bureau Officer. Subsection 3 of this section states that the Chief Bureau officer cannot make a determination that the information should be disclosed unless –

“a) he or she reasonably believes that that information is of such a nature as to give rise to a bona fide concern that the person concerned may—

(i) harm any child or vulnerable person,

(ii) cause any child or vulnerable person to be harmed,

(iii) put any child or vulnerable person at risk of harm,

(iv) attempt to harm any child or vulnerable person, or

(v) incite another person to harm any child or vulnerable person,

and
(b) he or she is satisfied that its disclosure is necessary, proportionate and reasonable in the circumstances for the protection of children or vulnerable persons or both, as the case may be. “

Therefore, the offence will not be disclosed unless they received an Adult Caution for an offence that would give reason to cause concern about the safety and protection of a child or vulnerable person.

The Chief Bureau Officer also according to section 15(4)(b) and (c) has to have regard to –

(b) its relevance to the type of relevant work or activity to which the application for vetting disclosure concerned relates,

(c) the extent to which the proposed relevant work or activity is likely to necessitate contact with children or vulnerable persons or both, and the nature of that contact”

After giving consideration to 15 (2) and 15(4)(b) and (c) if the Chief Bureau Officer decides that the specified information should be disclosed, they will in line with section 15(6) have to notify in writing of the determination and the reasons for it to the subject of the vetting and provide them with a copy of the specified information to be disclosed. They must also notify the person that the liaison person for the relevant organisation, who requested the Garda vetting, will be made known after the expiry of the 14 days of notification as mentioned in section 15(2).

Appeals to the determination of Chief Bureau Officer
According to section 14(5) if the person who is subject to the application for vetting makes an appeal the Bureau cannot make a vetting disclosure to the relevant organisation if a determination has not been established from this appeal.

Under section 18 of the 2012 Act the subject of the Garda Vetting may make an appeal if they are aggrieved by a determination made by the Chief Bureau Officer not later than 14 days of the notification of the determination being sent to them.

If the person is to appeal, they must according to section 18(3) do this in writing giving a statement of grounds relied upon by them and indicate if they want an oral hearing to explain their case of why in particular to this piece of writing the Adult Caution should not be included.

An appeals officer will then be appointed to this appeal and under section 18(5) affirm or set aside the determination of the Chief Bureau Officer in whole or in part and replace it with the new decision as they consider appropriate, when such a decision is made 15(6) tells us that the Appeals Officer shall inform the appellant and the Chief Bureau Officer of their decision in writing and the reasons for it.

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 from a determination of an appeal by an appeals officer on a point of law. This however as stated in section 15(8) of the 2012 Act shall be the final and conclusive appeal for the person.

Process of getting to the High Court

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 behavior in a public place
Section 8: Failure to comply with direction of a member of An Garda Síochána
Section 9: Willful 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

Andrea McCarthy

Eamonn Fleming 

21/07/21