The Scheme was developed in response to a NSW Drug Summit finding that arresting people for minor drug offences is not always an effective response. Police can exercise their discretion in appropriate cases and issue a caution. Police are still able to decide instead to formally charge offenders. A person can only be cautioned twice and cannot be cautioned at all if they have prior convictions for drug offences or offences of violence or sexual assault.
The Scheme does not apply to those caught supplying cannabis. Drug dealers continue to be arrested and prosecuted under the Drug Misuse and Trafficking Act ADIS provides a dedicated, confidential service to a cautioned offender that includes information about treatment, counselling and support services. People who receive a second and final caution are required to contact ADIS for a mandatory education session about their cannabis use.
The Magistrates Early Referral Into Treatment MERIT program is designed for offenders with drug problems who are eligible for bail and who may benefit from treatment and rehabilitation. MERIT aims to reduce drug-related crime by assisting eligible offenders to address drug problems that may be contributing to criminal behaviour. MERIT is voluntary and provides the offender with an opportunity to engage in treatment prior to their hearing.
A police officer of at least the rank of Inspector must also determine whether a previous offence was similar. Section 17 6 of the Act requires a decision on whether there are exceptional circumstances to be made in accordance with the guidance in paragraphs and a decision on whether a previous offence was similar to be made in accordance with the guidance in paragraph An offender is to be treated as having been cautioned for a previous offence if they were given a simple caution, a conditional caution, a youth caution or a youth conditional caution.
A decision-maker is only permitted to conclude that there are exceptional circumstances justifying a simple caution if satisfied that, were the offender to be convicted of the offence, the sentencing court would be unlikely to impose a custodial sentence whether immediate or suspended or a high-level community order.
From that date cautions, Conditional Cautions, reprimands and warnings and from 8 April youth cautions and Youth Conditional Cautions all became subject to the provisions of the Rehabilitation of Offenders Act ROA. Cautions including reprimands and warnings and from 8 April youth cautions become spent at the time when they are given i. Conditional Cautions and Youth Conditional Cautions will be regarded as spent three months after the date on which they were administered unless the Conditional Caution is revoked and the offender is prosecuted instead and convicted of the original offence.
In that case the rehabilitation period of the Conditional Caution is the same as that of the offence for which the offender is convicted. Transitional arrangements in paragraph 19 of schedule 27 of the CJIA provide that the change applies to cautions, reprimands and warnings given before the commencement date as it applies to cautions given on or after that date.
Care should be taken when dealing with spent cautions especially when presenting antecedent records in court. The practice relating to spent convictions set out in paragraph 21A of the Consolidated Criminal Practice Direction CCPD applies equally to spent cautions and is to be followed.
This means that prosecutors should not refer in open court to the existence of a spent caution, reprimand or warning, youth caution, or Conditional Caution and, as far as practicable, references to them in any record which is given to the court should be marked as spent. However, the ROA makes clear that the general protection from disclosure afforded to spent cautions and Conditional Cautions does not affect "the determination of any issue, or prevent the admission or requirement of any evidence, relating to a person's previous convictions or to circumstances ancillary thereto — a in any criminal proceedings before a court in Great Britain including any appeal or reference in a criminal matter ".
Spent cautions can be used in criminal proceedings in the same way and to the same extent as spent convictions, as to which see paragraph 21A. If a prosecutor decides that a caution is appropriate, where possible this should be discussed with the police before the case is referred back to them for the caution to be administered. The authority for the CPS to make a decision to caution whether simple or conditional is contained within s.
Note by subsection 9, caution includes a Conditional Caution, reprimand or final warning now a youth caution. Cautioning is not the only method of diverting an individual from the criminal justice system. Other options include taking no action and giving an informal non-citable warning, such as a Community Resolution.
A caution is a serious matter. It is recorded by the police and may be cited in subsequent court proceedings. It represents one form of entry into the criminal justice system. Prosecutors should be aware that the existence of a formal method of disposal falling short of prosecution gives rise to a danger that an offender may be cautioned when a more informal action might have been more appropriate.
A PND is a type of fixed penalty notice for a specified range of low level offences, for example Drunk and Disorderly. It is only available to those over 18 years of age. A person has 21 days from the date the PND is given either to pay the penalty amount in full or request a court hearing or in some cases ask to attend an educational course.
Where the PND is paid in full that discharges any liability to be convicted of the penalty offence but the paying of the penalty is not an admission of guilt. If a person fails to pay the penalty amount in full or request a court hearing or, in some cases, ask to attend an educational course within 21 days then a fine one and half times the penalty amount will be registered in the magistrates' court.
There is no admission of guilt required to give a PND but there must be sufficient evidence to support a successful prosecution. Article This principle does not rule out the application of extraordinary remedies in compliance with the law. Artigo Article 29 Application of criminal law 5 No one may be tried more than once for commission of the same crime. In the case of The People DPP v Quilligan No 2 [] IR 46, Judge Hency of the Supreme Court stated: 'This rule or principle , which is sometimes referred to as the rule against double jeopardy, is but an aspect of the canon of fundamental fairness of legal procedures, inherent in our Constitution, which is expressed in the maxim nemo debet bis vexari pro eadem causa.
Article XXVIII Freedom and Responsibility […] 6 With the exception of extraordinary cases of legal remedy laid down in an Act, no one shall be prosecuted or convicted for a criminal offence for which he or she has already been finally acquitted or convicted in Hungary or, within the scope specified in an international treaty and a legal act of the European Union, in another State, as provided for by an Act.
Artikel 3 No person may be punished for the same act more than once under the general criminal laws. Artikel 3 Niemand darf wegen derselben Tat auf Grund der allgemeinen Strafgesetze mehrmals bestraft werden. A person who has been acquitted or convicted of an offence shall not be tried again for the same offence.
No person shall be punished twice for the same act or omission except where death ensues from such act or omission. Article 31 2 No one may be re-tried nor penalized in criminal prosecution for an act for which such individual has already been acquitted or sentenced by a binding court judgment in accordance with law. Preamble: 21 Given the possibility of multiple jurisdictions for cross-border criminal offences falling under the scope of this Directive, the Member States should ensure that the principle of ne bis in idem is respected in full in the application of national law transposing this Directive This Directive seeks to ensure full respect for those rights and principles and must be implemented accordingly.
Preamble: 17 The principle of ne bis in idem is a fundamental principle of law in the Union, as recognised by the Charter and developed by the case-law of the Court of Justice of the European Union. Therefore the executing authority should be entitled to refuse the execution of an EIO if its execution would be contrary to that principle. Given the preliminary nature of the proceedings underlying an EIO, its execution should not be subject to refusal where it is aimed to establish whether a possible conflict with the ne bis in idem principle exists, or where the issuing authority has provided assurances that the evidence transferred as a result of the execution of the EIO would not be used to prosecute or impose a sanction on a person whose case has been finally disposed of in another Member State for the same facts.
Grounds for non-recognition or non-execution: 1. Without prejudice to Article 1 4 , recognition or execution of an EIO may be refused in the executing State where The rapid development of information technology has exacerbated the need for robust personal data protection, the right to which is safeguarded by both European Union EU and Council of Europe CoE instruments. Safeguarding this important right entails new and significant challenges as technological advances expand the frontiers of areas such as surveillance, communication interception and data storage.
This handbook is designed to familiarise legal practitioners not specialised in data protection with this emerging area of the law.
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