The report looks at cautions, penalty notices for disorder and restorative justice in England and Wales. It has been read by the UK mass media as indicating that "100,000 criminal offences wrongly result in an 'out of court disposal' every year" and more persuasively that "there is a need for a new approach, with greater consistency and transparency in the use of out-of-court disposals".
The authors kick off the executive summary by noting that -
In 1951, Sir Hartley Shawcross, who was then Attorney General, stated that 'It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution'. He continued with what is regarded as a classic statement on public interest: that there should be a prosecution 'wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest' ...Founded on that philosophy, the two agencies "conducted a focussed, indicative study of a small number of cases to look more closely at out-of-court disposals and the contribution they make in the fight against crime", asking is justice being served by making the right decisions in most cases and is there a wider understanding about why some offenders go to court and others do not?
Offenders should never be allowed to think that they are immune from the law and from the consequences of committing crimes. However, this does not mean that every offender caught by police must be prosecuted in a criminal court in order to administer a just outcome. Effective justice that fits the circumstances of the crime can be achieved for victims and offenders – particularly young people – outside the formal court system by adopting different methods of dealing with crime. As a rule of thumb, where there is sufficient evidence, serious offences and perpetrators who carry on offending despite being given appropriate chances to stop need to be dealt with in court. Less serious cases can be dealt with using approaches known as ‘out-of-court disposals’, always provided that these are a proportionate response to the offence or offender. Such methods have often been called ‘diversions’ from the criminal justice system; but in recent years they have been applied widely to an increasing number of cases, with the result that they are now a substantial area of practice in their own right.
The most commonly used out-of-court disposals are cannabis warnings, cautions (simple or conditional) and penalty notices for disorder. In addition, ‘Restorative justice’ is now often included in this category, although it can also be used after a conviction at court.
These forms of justice are designed to simplify and speed up dealing with less serious offending. They were introduced as a proportionate response to so-called low-level crime. They do not require as much paperwork as a court case and when used effectively in neighbourhoods and communities can be a very efficient way of dealing with offending ‘on the spot’, particularly when police officers are able to check the identity and history of offenders using mobile technology. They are also generally less expensive.
Where there is sufficient evidence, police officers and prosecutors are responsible for deciding whether to send offenders to court or deal with them with such disposals. They therefore act as a gateway to criminal courts, and so play a vital part in the management of the criminal justice system, ensuring that the right cases are sent to court and less serious cases are managed effectively, using the appropriate disposal for the offence, offender and victim. The exercise of this discretion is not unfettered and sometimes the decisions are not as straightforward as they initially appear; but since the results have significant consequences for the victims of crime, offenders and communities it is important that there is real transparency and accountability for the decisions made.
The report notes that in 2009, 38% of the 1.29 million offences 'solved' by police were dealt with outside of the court system. It concludes that use of out-of-court disposals has "evolved in a piecemeal and largely uncontrolled way". Restorative justice may increase victim satisfaction and reduce re-offending but -
substantial growth in the use of out-of-court disposals has created some disquiet among criminal justice professionals over inconsistencies in their use, in particular for persistent and more serious offending. We found wide variations in practice across police force areas in the proportion and types of offences handled out of court.In response "the time has come to formulate a national strategy to improve consistency in the use of out-of-court disposals", drawing on good practice, promoting understanding, reducing excessive variations, improving victim satisfaction, reducing re-offending and of course providing value for money.
The authors indicate that they are "acutely aware of the challenge that a national strategy may increase the bureaucratic burdens of prosecutors and police officers", commenting that they "do not believe that such increases are an automatic consequence", in contrast to -
more definite consequences to decisions about whether someone enters the formal criminal justice system or receives an out-of-court disposal: an individual’s chance of getting a job or travelling abroad can be affected, for instance, and there may be wider implications for public confidence.The agencies found that the use of out-of-court disposals varied considerably across all 43 force areas in England and Wales in 2009, from 26% to 49% of all offences brought to justice.
Not all out-of-court disposals carry the same obligations of disclosure to a court or an employer, with the choice of disposal potentially impacting on an individual’s future prospects. The choice may be for bureaucratic reasons -
An offender in one area may be dealt with by way of restorative disposal for a first offence, whereas in another area he or she might have received a caution – which is visible in a Criminal Records Bureau (CRB) check. We did not find any force with an explicit policy to increase their use of out-of-court disposals. Where greater use is evident, this is linked in some places to a strong emphasis on achieving targets associated with improving performance in the level of offences brought to justice. Target chasing has not been conducive to the effective exercise of discretion.The report goes on to note that -
There are clear time benefits for some disposals: for example, issuing a PND on the street as opposed to at a police station after arrest saves nearly three hours of police time. Charging the offender would take almost five hours more, as well as the time taken to deal with the case in court, where the offender’s first appearance may occur several days or weeks later. Further work is required, however, to assess administrative processes and times spent preparing and presenting the case in court, and to provide a more comprehensive estimate of potential savings and efficiency improvements.The report concludes that -
Given the high victim satisfaction rate for conditional cautions, it is clearly a frustration to police that each one takes, on average, an extra hour to complete compared to a simple caution (due to the additional requirements to send it to the Crown Prosecution Service (CPS) for a decision). Police officers regard this as unnecessary bureaucracy that is deterring use of an effective and otherwise popular option, while CPS staff hold mixed views about who ought to be making the decision to issue conditional cautions.
Because out-of-court disposals have developed in a piecemeal fashion, they have not been regulated with the same intensity as the more formal criminal justice system. The expression ‘out-of-court disposals’ perpetuates a sense that they are much less important than a disposal in court – in effect a soft option. If there is to be a real change in this perception a greater understanding about what amounts to a proportionate response to offending will be necessary.
We identified wide variations in the application of out-of-court disposals, which go beyond the local differences one would naturally expect. We identified particular concerns about the use of out-of-court disposals for persistent offenders. Recording practices may have contributed to this difficulty.
It is not possible or desirable to strive for consistency at the expense of local discretion – but wide variations in practice may lead to a perception, real or imagined, of unfairness. And there is nothing more likely to diminish public confidence in the criminal justice system in its widest sense than a sense of unfairness. Greater consistency in the choice of out-of-court options in individual cases will influence public confidence in the criminal justice system: and there are now opportunities to achieve this, as traditional targets are swept away. ....
The current out-of-court disposal regime was found to be a legitimate and time-efficient option for dealing with less serious crimes. We have identified areas of good practice where out-of-court disposals have been used to achieve speedy disposals for minor offending which were both cost effective and proportionate, particularly when that 'disposal' was administered quickly after the event and in consultation with the victim, providing feedback whenever possible. We found that the level of victim satisfaction hinged largely upon the extent to which they have been kept informed and updated.
The application of sound commonsense principles should go a long way in remedying some of the difficulties we have identified. Perhaps the key to making the right decision is for the decision-maker to ask: ‘If all the facts and circumstances of this case were published, what would the public think?’
