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  • Do warnings show on a police check?

    You may be surprised that the Police let a person off the hook after allegedly committing a minor offence; such an event can be puzzling. However, it mostly means the person was released with a warning.

    A warning is one of the alternative punitive measures for a minor offence in Australia.

    The Police will issue a warning to people who have committed minor violations, where an infringement notice or court summons will be harsh.

    Does a Warning or Caution show up on a Police Check?

    The Police Check is a vital record in official assessment in Australia. The Police Check discloses all the releasable conviction records in a criminal history on the Australian Criminal database.

    When the court sentences an offender, the details of the matter are entered into the criminal record. Only cases settled by a court (where the court issues sentencing) will appear on a criminal history check certificate.

    If police issue a warning and the matter does not proceed through a Court, a Warning or a formal Caution will not show up on a Police Check. However, a warning can be recorded in the police’s internal records and get referenced in the future in a court proceeding.

    What happens after a Police Warning/Caution?

    If the Police issue a caution or warning for an offence, the law will take no further action against the offender. The law may take additional steps if the evidence of the act changes or the person is indicted in another offence.

    What is the difference between a Police warning and a Caution

    There is no significant difference between the two. However, caution is the more severe form of a Police warning.

    The Police warning can be issued to a person (even those below the age of 18). Unlike a Police caution, warnings are given anywhere (not necessarily the Police station or in a formal manner).

    The Police Caution is usually more formal than a warning. If the Police give a child a caution (between 10 and 18 years), it will be recorded in their Youth records.

    A Police caution is usually issued in a Police station after due consideration of the matter. And unlike a Police warning, a caution will involve some conditions that the offender must abide by.

    When can you get a Police Warning or caution?

    The Police do not give a warning for all offences. Some offences are too severe for a Police warning, and the court will either issue an infringement notice or a court summons. Before issuing a Police caution or warning, the Police will consider certain factors.

    The Police can refrain from imposing a warning if they feel it is not in the justice system's interest.


    • The severity of the offence

    The impact or seriousness of an offence will affect the police's judgment on a matter. Only minor offences with fewer impacts may be eligible for a Police warning. The Police cannot issue a Police warning where the offender commits a grievous act or an indictable offence.


    • The age of the offender

    Issuing Police warnings is common where an offender is a young person under the law and the offence is minor. The Police officer may also consider the criminal records of the offender when giving a Police caution or warning. Previous or repeated Police warnings or cautions can influence the police against issuing another Police warning.


    • The victim’s opinion

    If the offender has impacted a victim in any way, the victim's opinion may be a decisive contending factor. Also, if the victim disagrees with a Police caution or warning, they may go ahead to charge the offender.


    • The Police officer’s opinion

    After considering all the matters around the case, the police officer can decide to not issue a Police warning/caution.

    The officer may assess the situation through eyewitnesses, evidence, confessions or other revelations.


    • The offender shows no remorse towards the matter

    The Police may consider it a mitigating circumstance if the offender shows some form of remorse. Such actions include;

    • Paying for any form of damage,
    • Issuing a formal apology,
    • Clearing all costs from the offence,
    • Admitting guilt for the offence.

    What happens if a person re-offends after a Police caution?

    The Police caution may come with a formal or informal condition against the offender. If the person disregards the requirements of the caution and commits the same offence;

    • The Police will charge them for the offence,
    • The Police may remand them in custody if they consider them an immediate threat.

    Are there an infinite number of Police cautions?

    No, the police cannot continue to issue a large number of cautions for the same offence. After around three cautions (depending on the offence), the Police may;

    • Charge you to court for the offence, or
    • Issue an infringement notice.

    When you receive a Police caution for an offence, you should be grateful for such alternatives by being of good behaviour. Having repeated police cautions can discourage the Police from issuing another caution for your offence.

    When does a Police issue a Caution?

    The Criminal Procedure Act in various States and Territories guide how and when a Police may issue a caution. Police cannot act on complete discretion in giving a caution. Certain circumstances must be present before the Police excuse a matter for a Police caution.


    • The offender must admit to committing the offence.

    The court can only grant a “Police caution” if the offender agrees to the offence. Where the defendant contests the matter, they will head to the Magistrates Court.


    • The offender must consent to the Police caution

    Police caution usually has some forms of temporal conditions that the offender must follow. However, the Police caution is void if the offender contests one or any of the conditions the Police includes in the caution.

    In such cases, the Police may charge them before a Magistrate for the original offence.


    • A Police sergeant must approve the caution

    The least officer in the Police that should approve a Police warning must be a sergeant. They will assess the conditions of the Police cautions.


    • The caution should be appropriate for the offence

    The conditions of the Police caution should be relevant to the degree of the crime. It must not be more severe than the original offence and vice versa. If the offender feels “cheated” by the conditions of the Police caution, they can contest the initial matter.


    • The offence can be convicted in court

    A Police officer cannot issue a Police caution for matters not under the Australian (Commonwealth) jurisdiction. For example, the Police cannot issue cautions for Religious or Cultural violations where it does not affect the lives of others.

    Does a formal caution or an informal warning appear in any other Background Check?

    Similar to a Police Check, a standard background check will not disclose the details of your Police cautions unless the law specifically requires it.

    However, the internal police records will still contain the details of your Police cautions that you have ever received. The internal records of the Police are rarely wiped out (even after a person turns 18).

    How does the Police issue a Warning/Caution?

    The Police can give a warning anywhere once the presence and guilt of the offence are established.

    Warnings;

    When issuing a Police warning, the Police officer must explain the warning and consequences to the person. If the person is a juvenile, the Police must do so with their parents or legal guardian.

    However, the Police can still issue a warning to a minor even;

    • When they can't reach the parents or guardian, or
    • The parents/guardian do not agree to the warning.

    If the culprit or the guardian;

    • Don’t agree to a verbal warning, or
    • They refuse to admit to the crime; the Police officer can proceed to the Court to hear the matter.

    For Cautions;

    The Police may invite the culprits, and in the case of juveniles, alongside their parents and guardians. Cautions are usually in written forms, and the Police officer explains the consequences and the conditions of the Police cautions.

    Police cautions are generally issued in a Police station after interviewing the offender and the victim.

    The Police record all history of your cautions in a Register. While this document is not available for anyone, they will reference it if you get in trouble.

    What offences will I find on a Police Check?

    The Police Check discloses details of an individual's criminal records in the Australian Criminal database. It means offences for which you are not found guilty in court will not appear in a criminal history check.

    National police checks have become a default means of assessing a candidate's suitability to role depending on their records.

    Employers and decision makers can refuse applicants if they have certain records in their check that they think will affect the role.

    The criminal history check also reveals the number of court charges and pending hearings in court. Other details that the check reveals are;

    Why does the Police issue a Caution?

    The Police may issue a warning or caution in any of these cases;


    • As a Get-away

    Cautions are a “get-away” from the stigma of having a conviction in your criminal records. The Police will caution if the offence is minor, and they feel a court conviction or sentencing will be harsh.


    • Saves taxpayer money on judicial costs

    Furthermore, it is not new news that the Australian justice system can get swamped and congested. Prosecuting every minor violation in addition to the pending matters in court will grind judicial activities. Rather than overwhelm the Magistrate and the Court officials, the Police can issue a warning or caution to deter such behaviours in the future.


    • Exceptional circumstances about the offence

    The Police will also issue a warning/Caution if there is a particular circumstance to the offence. For example,

    • An honest mistake or inability,
    • The young offender was confused with committing the act,
    • The offender did not fully understand the impact of their minor offence,
    • The offence was minor.

    What offences does the Police issue a Warning or Caution for?

    Police cautions are only for cases where the offences are negligible to the State or the victim. However, it doesn't mean the violations cannot be prosecuted in court; the Police just let the offenders off the hook with stern advice (conditions) to deter such actions in future.

    The Police do not issue Police cautions for an indictable offence. However, the Police may consider a caution for certain indictable violations that a Magistrate can hear.

    The Police can issue a caution in cases like;

    • Trespassing,
    • Possessing alcohol underage,
    • Offensive language,
    • Public disturbance,
    • Graffiti painting,
    • Defacing a wall,
    • Minor assaults (without bodily harm to the victim),
    • And other minor changes.

    Indictable offences like the following and other serious offences can never qualify for a Police caution;

    • Sexual assault,
    • Fraud offences,
    • Rape,
    • Manslaughter,
    • High range Drink driving offences.

    Will a Police Caution affect my prospects?

    No, a Police caution will hardly affect you in your applications. It is scarce for employers or other decision makers to ask for Police caution records unless the legislation mandates it.

    Also, most employers will not go past a national criminal history check result in assessing the candidate unless the role is "sensitive" and the legislation mandates it.

    How can I obtain a national criminal history check?

    Individuals

    If you are an individual, you can obtain a national criminal record check certificate online via Australian National Character Check’s police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Sources

    Youth Law Australia (Formal Cautions) - https://yla.org.au/vic/topics/courts-police-and-the-law/the-youth-justice-system/formal-cautions/

    Victoria Police Force (Official Warnings) - https://www.police.vic.gov.au/official-warnings

    Intellectual Disability Rights Service (Cautions Under the Young Offenders Act 1997 - A Summary) - http://www.idrs.org.au/pdf/factsheets/Factsheet_for_lawyers_Cautions_under_young_offenders_act.pdf

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