By Gavin Dingwall, Senior Research Fellow
In December 2022, the Magistrates’ Association published a report entitled Out of Court Disposals: Fit for purpose or in need of reform? (available here). The report is timely and raises questions of importance. In an ideal world there would be synergy between punishments imposed by the courts and pre-court sanctions imposed by other agencies. One would hope for a clear and appropriate framework specifying when an offender should receive an Out of Court Disposal (OOCD) rather than a penalty in court. The Magistrates’ Association’s report documents the opposite. In turn, it questions how OOCDs are currently being used by the police, the relationship between OOCDs and the sentences available in magistrates’ courts, the absence of guidance concerning the use of OOCDs and the lack of meaningful scrutiny.
There is nothing inherently objectionable to dealing with some offenders out of court. Thought though needs to be given as to when this is appropriate. This necessitates a consideration not just of the role of OOCDs but of their purpose. It is vital to remember that OOCDs constitute punishment. Can OOCDs be justified on the same basis as punishments imposed in court? Section 57(2) of the Sentencing Act 2020 states that courts must have regards to the following purposes of sentencing –
(a) The punishment of offenders,
(b) The reduction of crime (including its reduction by deterrence),
(c) The reform and rehabilitation of offenders,
(d) The protection of the public, and
(e) The making of reparation by offenders to persons affected by their offences.
If OOCDs were reserved for those who commit minor offences or who have limited culpability, OOCDs could be justified on the basis that they constitute a proportionate penal response. The Magistrates’ Association’s report though found cases where OOCDs were given to those who committed more serious offences (p.6). Moreover, the police can attach onerous conditions to an OOCD on other grounds. The report questions whether this is appropriate:
‘The police are now enforcing the law, investigating crime, evaluating the needs of the offender on admission of guilt, and deciding a sentence that is either punitive, rehabilitative, reparational or educative.’ (p.4)
The report notes – correctly – that the police can sometimes impose a more serious sanction than the magistrates’ court:
‘[Through] an OOCD police can effectively give a community order for offences that would not cross the threshold for such a sentence if the case were heard in court. Where an offender fails to comply with an OOCD – for example, breaching a caution – they would then be prosecuted but might only be given a conditional discharge or a fine. The breach of the more intensive OOCD intervention would result in a less intensive penalty in court than that originally imposed through the OOCD. This non-linear and confused approach is incongruous with the aim that disposals – whether sentences or OOCDs – are proportionate to the offending behaviour.’ (p.9)
Data show disparity in the use of OOCDs across police forces (p.6). The report notes that, whilst courts have to follow detailed sentencing guidelines, no equivalent guidance is provided for the police. This in part explains inconsistency of use, but that is not the only problem that arises in the absence of guidelines. Public approval of out-of-court disposals is contingent on them being used appropriately. Anecdotal evidence from magistrates also found that OOCDs have been issued in ways that are inconsistent with statutory sentencing provisions. The report provides the example of OOCDs being issued for repeated knife crime offences despite section 315 of the Sentencing Act 2020 prescribing a minimum sentence of six months’ imprisonment for a second offence (p.8).
This points to a recurrent theme in the report: the lack of a coherent systemic approach. Magistrates are hampered by the current rule that not all OOCDs are recorded on the Police National Computer. Magistrates are thus denied the opportunity to ‘fully address the culpability and seriousness of an individual’s offending behaviour’ (p.9). This is especially problematic in domestic abuse cases where behavioural patterns can be established. Partial information about past offences also limits the opportunity for sentences to address underlying causes of offending.
A second recurring theme in the report is the lack of scrutiny associated with OOCDs. In 2018, the National Police Chiefs’ Council recommended that forces introduce scrutiny panels to perform this function. The Magistrates’ Association submitted freedom of information requests to 43 police forces as part of their research; 39 of the forces confirmed that they had scrutiny panels. However, two forces stated that they did not and two forces provided information about panels with another remit. Though most forces have panels, it is difficult to conclude that they lead to ‘open justice’ – most panels do not publish their findings and only two are attended by members of the public.
The report’s subtitle asks whether OOCDs are fit for purpose or in need of reform? The overall conclusion is unlikely to surprise. It is though important to note that the Magistrates’ Association recognise that OOCDs serve a potentially valuable role as a response to minor criminality (p.3). The report makes the case for reform not abolition. Seven recommendations are made:
1. The Ministry of Justice and Home Office clarify that the courts administer justice except for a nationally agreed list of offences for which out of court disposals (OOCDs) may be used.
2. The Ministry of Justice and Home Office jointly conduct a national audit to identify the true picture of how OOCDs are being used and scrutinised.
3. The Ministry of Justice establishes a clear framework that lays out a clear distinction between the police’s OOCD powers and courts’ sentence powers.
4. Every Office of Police and Crime Commissioner or police force hosts an independent OOCD scrutiny panel.
5. Each police force works with local justice partners to establish distinct scrutiny panels for the use of OOCDs.
6. The Ministry of Justice and Home Office establish a national body with the permanent remit and accountability to ensure consistency between different police force areas.
7. Every police force commits to ensuring greater public understanding of OOCDs.
Read the Issues paper on Out of Court Disposals here.