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Out of Court Disposals

A review of policy, operation and research evidence

Cerys Gibson

Last updated: Feb 2021

Executive summary

  • Out of court disposals (OOCDs) have long been viewed by advocates to be an efficient and effective response to criminal behaviour, in particular in the case of low-level offending by first time offenders.
  • In most police force areas in England and Wales there are currently six different OOCDs available: community resolutions; cannabis/khat warnings; Fixed Penalty Notices; Penalty Notices for Disorder; simple cautions; and conditional cautions.
  • Some police force areas have been trialling a new, two-tier, approach to OOCDs in recent years and the Government’s September 2020 White Paper, A Smarter Approach to Sentencing, proposes rolling this out nationally. Whilst Fixed Penalty Notices will be retained, the other available OOCDs will be consolidated into two options: community resolutions (for less serious offending/offenders with limited offending histories) and conditional cautions (for more serious offending/offenders with more significant offending histories).
  • The use of OOCDs rose sharply between 2004 and 2007 following the introduction of an ‘offenders brought to justice’ target for police forces. The removal of this target precipitated a steady decline in the use of OOCDs since 2008.
  • OOCDs can offer efficiency savings as it is generally quicker and cheaper to issue an OOCD than it is to prosecute an offence through the courts. This can have advantages for all parties involved in the criminal justice process, including facilitating greater victim involvement. However, the use of OOCDs also raises concerns about whether they are being used consistently and for appropriate cases. There is a wide variation in the use of OOCDs between different police forces: in 2018, OOCDs accounted for 10% of offences brought to justice in Cleveland but 53% of offences brought to justice in neighbouring Durham.
  • Concerns have also been raised about the adequacy of the mechanisms of ensuring accountability of decision-making in the issuing of OOCDs. The primary method of external accountability is through the use of OOCD scrutiny panels; however, the organic evolution of these panels has raised questions about their effectiveness.
  • Whilst OOCDs are an important tool in the criminal justice system’s toolbox, it is essential that scrutiny is applied to the decision-making process to ensure that OOCDs are issued efficiently, appropriately and consistently.

1. Scope of Review

This report describes the current status of adult out of court disposals1 in England and Wales and draws on a review of relevant research over the period 2010-2020. It focuses on the efficiency and effectiveness of the system of out of court disposals in reducing reoffending and improving victim satisfaction in the criminal justice system and also on the appropriateness and consistency of the decision-making.

It first summarises the current system of out of court disposals, focusing on community resolutions, Penalty Notices for Disorder and simple and conditional cautions. It identifies recent developments in the system of out of court disposals, including the new two-tier system, and the use of out of court disposals since 2001. This report then summarises research on the efficiency of the disposals and their effectiveness in achieving offender rehabilitation and improving victim satisfaction. Then it considers the appropriateness and consistency of the use of out of court disposals, as well as the accountability mechanisms in place to scrutinise this decision-making before concluding with key research questions which have yet to be answered, and by identifying areas for further study.

2. The system of out of court disposals

Prosecution for all criminal offences would be a costly response to low-level offending behaviour. Instead, out of court disposals (OOCDs), administered by the police and/or the Crown Prosecution Service (CPS), have long been accepted by Governments as an efficient and effective response to criminal behaviour. The use of OOCDs in England and Wales almost trebled between 2004 and 2008 before beginning a steady decline. This pattern has resulted in a level of usage today that is similar to that seen in the early 2000s. There are currently six types of OOCDs, each with its own Code of Practice or guidance, as introduced below.

Community resolution

The community resolution is a means of dealing with less serious crime and anti-social behaviour, particularly in the context of first-time offending (ACPO 2012). A prerequisite for the community resolution is that the offender must accept responsibility for the offence. Community resolutions normally include elements of restorative justice, such as offender-victim conferencing or facilitating an apology to the victim. Conditions can also be reparative, such as requiring the offender to repair or pay for any damage caused. Whilst the imposition of a community resolution is not formally entered on an individual’s criminal record, it will be recorded on the Police National Computer (PNC) and thus may be disclosed in any enhanced Disclosure and Barring Service (DBS) check.2

Cannabis/khat warning

The cannabis warning and related khat warning, were introduced in 2004 and 2014 respectively. They can be given in relation to a first-time offence of simple possession of these drugs. As with the community resolution, the offender must have made a clear and reliable admission to the offence and such warnings do not form part of the offender’s criminal record. However, they will be recorded on the PNC and may be disclosed on an enhanced DBS check.

Fixed Penalty Notice

The Fixed Penalty Notice (FPN) was created in the Road Traffic Act 1988. It can now be administered for a range of low-level offences, including certain non-traffic offences such as littering and other environmental offences.3 FPNs may be issued if: (i) an offence has been committed; (ii) an FPN is deemed a proportionate response; (iii) there is evidence to support prosecution; and (iv) the offender understands why the FPN is being issued. A number of public bodies are authorised to administer an FPN, including local authority authorised officers as well as police community support officers (PCSOs). An FPN does not form part of a criminal record, but would be recorded on the PNC and may appear on enhanced DBS checks.

Penalty Notice for Disorder

The Penalty Notice for Disorder (PND), is a type of FPN established by the Criminal Justice and Police Act 2001 and is subject to guidance (Ministry of Justice 2014). It is a fine of either £60 or £90 depending on the particular offence4 and it can be administered for ‘penalty offences’ specified in section 1 of that Act, including drunken behaviour in designated no-drinking areas, criminal damage (for property up to the value of £300) and theft (up to a retail value of £100). Depending on the offence type, PNDs can be issued by police officers, PCSOs and accredited persons (such as Trading Standards Officers and employees of organisations who contribute towards community safety – for example, neighbourhood wardens and hospital security guards). PNDs may be administered where the police or other accredited person has sufficient evidence to support a successful prosecution and it is deemed to be in the public interest to issue a PND.

Importantly, unlike other OOCDs, there is no requirement that the offender admits the offence to receive an FPN or PND. If the intended recipient refuses to accept a PND, he or she may be prosecuted for the original offence. A PND does not form part of a criminal record, but would be recorded on the PNC and may appear on enhanced DBS checks.

Simple Caution

Simple cautions are the oldest form of OOCD, developing organically over time and now subject to Ministry of Justice guidance (Ministry of Justice 2015). Simple cautions are available for most offences, but are primarily intended for low-level, mainly first-time, offending (Ministry of Justice 2015, p. 7).5 For a simple caution to be issued, the offender must admit their guilt and accept the caution. There must be sufficient evidence to provide a realistic prospect of conviction, but it is in the public interest to administer a simple caution. Simple cautions form part of an offender’s criminal record and may be disclosed as part of a standard or enhanced DBS check. Once it has been accepted by the offender and administered by the police, it may only be challenged by way of a complaint against the police force that administered it or by judicial review.

Conditional Caution

Conditional cautions were introduced by the Criminal Justice Act 2003 and have a Code of Practice governing their use (Ministry of Justice 2013). They allow authorised persons to attach conditions that have a variety of aims: to rehabilitate the offender; provide victim reparations; punish the offender; or remove foreign offenders with no legal right to remain. If these conditions are not complied with, the offender may be charged with the original offence. When first introduced, conditional cautions were issued by the CPS following consultation with the police. The conditional caution scheme was significantly amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which removed the requirement for CPS involvement, except for offences involving hate crime, domestic abuse and indictable only offences.6

Conditional cautions may only be administered where the offender has admitted guilt for the offence and accepts the conditional caution. There must be sufficient evidence to charge the offender but that it is in the public interest to administer a conditional caution. As with simple cautions, conditional cautions form part of an offender’s criminal record and may be disclosed as part of a standard or enhanced DBS check. Once it has been accepted by the offender and administered by the police, it may only be challenged by way of a complaint against the police force that administered it or by judicial review.

Recent Developments and Reform Proposals

The system of OOCDs has received attention from a number of bodies in the past decade and plans are underway to simplify the range of options available. In 2011, the Criminal Justice Joint Inspectorates (CJJI) involving Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate criticised the ‘piecemeal’ approach to the current system of OOCDs (CJJI 2011, p. 7). Following further scrutiny by the House of Commons Home Affairs Committee in 2015, the Ministry of Justice, College of Policing and National Police Chiefs’ Council (NPCC) developed a new two-tier system of OOCDs to replace the current model (NPCC 2018). This new approach, piloted in 2015-16 in West Yorkshire, Staffordshire and Leicestershire, consists of only two OOCD options:

Community Resolution: As noted above, this disposal is aimed at first-time offenders with the intention of resolving minor offences through an agreement with the offender. It purports to empower victims by giving them a say in how they want the offender to be dealt with.

Conditional Caution: This disposal is aimed at tackling more serious offending and those with a more extensive offending history than the community resolution.

Both of these disposals allow the police to attach rehabilitative conditions and involve the victim in decision-making. In its strategy on OOCDs, the NPCC emphasised that this system of OOCDs aims to support vulnerable people in society through providing ‘rehabilitative opportunities to offenders to turn their life around at the earliest opportunity’ (NPCC 2018, p. 4). This streamlined approach to OOCDs was also intended to result in the quick and efficient resolution of cases by fostering front-end decision-making without requiring the cost of court time (NPCC 2018, p. 4).

The NPCC implemented this new approach gradually, encouraging police forces to implement it when it was operationally viable for them to do so, without setting rigid time frames on the implementation process (NPCC 2018, p. 5). Some police forces voluntarily moved towards this new approach, reinvigorating their team structures, training and processes, and creating new offender Pathways to encourage buy-in to the disposal by frontline officers (Gibson 2021). Until recently, there was no clear indication of whether this two-tier system would be mandatory in all police forces. However, in September 2020, the Government published the White Paper, A Smarter Approach to Sentencing, which set out the aim of legislating for the implementation of this two-tier system of OOCDs, whilst retaining Fixed Penalty Notices (Ministry of Justice 2020a). The Ministry of Justice noted that, by April 2020, only 11 police forces had voluntarily adopted the two-tier system (Ministry of Justice 2020b, p. 3). This meant that there was a lack of consistency between forces, which created a complex system that may be difficult for the public to understand. The Government will therefore intervene to ensure that all forces adopt this new approach. While doing so, the Ministry of Justice acknowledged that operational changes take time and expressed a commitment to working with police forces and Police and Crime Commissioners7 to implement these changes over a ‘sensible timeframe’ of several years so that the reforms do not impact on operational delivery (2020a, p. 54). The two-tier system of OOCDs, consisting of a conditional caution for upper tier disposals and community resolutions for the lower tier disposals, is therefore very likely to become mandatory across England and Wales, with limited exceptions to allow for other OOCD initiatives such as deferred prosecutions (Ministry of Justice 2020a, p. 54).

The Use of Out of Court Disposals

Since the Criminal Justice Act 2003, the use of OOCDs has gone through two distinct phases: a period of rapid increase in their use between 2004 and 2007, precipitated by the introduction of Offences Brought To Justice (OBTJ) targets in 2002, followed by a steady decline in their use after 2008, as shown in Figure 1.

Figure 1: OOCDs issued by disposal type, 2000 to 2018, year ending December8

As seen in Figure 1, the introduction of OBTJ targets in 2002 led to a sharp increase in the use of OOCDs. These OBTJ targets were performance management arrangements that placed a strong incentive for police officers to administer OOCDs for low-level offences to secure a sanction detection (Office for Criminal Justice Reform 2010, p. 11). The targets substantially contributed to a net-widening effect by bringing more offenders into the criminal justice system to meet these targets (for example, through administering an OOCD in cases where the offender would previously have been dealt with informally).

Following the adaptation of OBTJ targets to focus on serious offences in April 2008, and their eventual removal in 2010, the number of OOCDs administered each year steadily declined. As can be seen from Figure 1, this overall decreasing trend has slowed in recent years. This more gradual decrease is related to changes to policies, crime levels, police practice and OOCD availability, such as greater restrictions on the offence types for which certain disposals, such as the simple caution, may be used (Ministry of Justice 2019, p. 10).

From the Ministry of Justice data, we can analyse the use of each OOCD as a proportion of all OOCDs used, as presented in Figure 2.

Figure 2: Proportionate use of each OOCD, 2000-2018 year ending December9

These data show that cautions, including both simple and conditional cautions, were the most commonly used disposal between 2000-2015. However, once community resolutions were recorded in 2015, they soon became the most commonly used disposal, with their rate of use growing as a proportion of all OOCDs year on year.

In 2018, combined simple and conditional cautions, together with community resolutions, made up approximately 75% of OOCDs administered. As it is not possible to distinguish between simple cautions and conditional cautions in the data available, we do not know what proportion of these are conditional cautions, and therefore which will continue to exist in the new system of out of court disposals. The new two-tier system, in removing simple cautions, PNDs and cannabis and khat warnings, may therefore drastically change the statistical landscape of OOCDs.

In addition to missing data on the number of conditional cautions administered, there are also limited public data on the types of offences for which each disposal is used. Ministry of Justice data identifies that cautions (combining simple and conditional cautions) are more commonly used for summary non-motoring offences10 with these constituting 47% of all cautions administered in 2018 (Ministry of Justice 2019, p.11). The remaining 53% of cautions were issued for indictable offences,11 most commonly for drug offences, theft offences and violence against the person offences (these three offence categories accounted for 78% of all cautions for indictable offences) (Ministry of Justice 2019, p. 11).

However, a notable limitation is that these data do not distinguish between a simple or a conditional caution. In addition, as almost half of the cautions administered in 2018 were simply categorised as being for ‘summary non-motoring offences’, we do not know for which offence groups these cautions have most commonly been issued.

The Ministry of Justice also provides data on the offences for which PNDs have been issued. In 2019, just four offences: (drunk and disorderly (42%); possession of cannabis (31%); causing harassment, alarm or distress (11%); and retail theft under £100 (9%) accounted for 93% of all PNDs issued (Ministry of Justice 2020c, p. 12).

The data on the use of community resolutions demonstrate that since recording began in 2015, their use has been steadily growing (see Figure 2). Ministry of Justice statistics show that, in 2019, community resolutions were most commonly administered for drug offences, followed by violence against the person offences, as shown in Figure 3.

Figure 3: Offences disposed through a community resolution, 2019 year ending December12

3. Efficiency and Effectiveness

Advocates of OOCDs argue that the use of OOCDs can carry benefits for the offender, victim and wider community. The House of Commons Home Affairs Committee summarised:

‘Out-of-court disposals (OOCDs) can provide the police with simple, swift and proportionate responses to low-risk offending, which they can administer locally without having to take the matter to courts. As a quick and effective means of dealing with less serious offences, they enable police officers to spend more time on frontline duties and on tackling more serious crime. Additionally, OOCDs can often represent an effective response to offending that can focus on the needs of the victim.’(Home Affairs Committee 2015)

This section examines the evidence available in respect of the efficiency of OOCDs, their effectiveness in reducing re-offending, and their potential for improving victim satisfaction.

Efficiency and Cost-Effectiveness

One of the key arguments expressed in support of the use of OOCDs is that they are a more ‘efficient’ disposal as they require less time and resources than prosecuting individuals. Although now dated, in 2011, the CJJI analysed the use of OOCDs in England and Wales and concluded that it took longer to charge suspects in accordance with the traditional prosecution route than it did to administer any type of OOCD (2011, p. 29).13 These reported efficiency gains can theoretically have advantages for all parties involved in the criminal justice process. From the perspective of the victim, some victims will feel a benefit from the comparatively faster resolution of the matter and from being spared the experience of having to appear in court (although clearly not all victims will feel this way and some will prefer to see the case proceed to court). From the perspective of the offender, they can benefit from the certainty that comes with the outcome of their case being known much sooner. Finally, the community can benefit from the process of diversion generally as this reduces the cost and workload of the courts, conserving resources which may be better targeted for more serious cases.

The degree to which these time and cost savings actually manifest in reality will depend on both the OOCD used and the circumstances surrounding its use. At the more ‘efficient’ end of the spectrum, the PND was introduced with the aim of enabling the police to put an immediate stop to offending behaviour and provide a swift deterrent for offences (Home Office 2000). Yet even this streamlined disposal will have varying efficiency savings for the criminal justice system. For example, Young identified the ‘net-widening’ effect associated with the use of PNDs, as they can result in an increase in the use of formal sanctioning for actions that would previously have been dealt with through informal warnings (2008, pp. 166-177). In addition, data indicate that a high proportion of PNDs are issued in custody, rather than on the street, increasing the time and costs of this disposal (Office for Criminal Justice Reform 2010; HMIC 2011).

Another issue, noted by Grace (2014), is that PNDs have a low payment rate, peaking at 55% in 2010. Enforcement may therefore require a subsequent court process to enforce compliance. The latest statistics indicate that only 50% of PNDs issued in 2019 were paid in full, with 35% of people issued with PNDs fined for late payment (Ministry of Justice 2020c, p. 12). While PNDs can appear as a quick disposal, in reality their use can be just the start of a more drawn-out process, reducing the efficiency savings of these disposals.

This late, or failed, payment of fines alludes to a deeper criticism of PNDs. As a fixed penalty, the disposal affects individuals differentially according to their means. Fixing individuals with a penalty they cannot pay may further marginalise economically disadvantaged or vulnerable people. It can also result in two levels of justice: those able to pay the PND in 21 days and avoid a criminal record, and those unable to pay, who may be charged (Grace 2014, p. 50). The differential outcomes for those with the means to pay, and those without, can foreseeably foster inconsistency in the criminal justice system’s treatment of like-for-like offending.

The use of OOCDs may therefore result in efficiency savings for the criminal justice system, although this will depend on the context in which it is administered. It is unclear whether the new two-tier system, once rolled out, will result in cost savings for the criminal justice system. The evaluation of the new two-tier system pilot identified it would cost more than the current system of OOCDs to establish and run (Ames et al. 2018, p. 48). This is because, in the new system, each OOCD requires condition-setting and monitoring of these conditions. However, Neyroud highlighted that this evaluation compared the cost of administering a conditional caution to the cost of administering other OOCDs and did not include any savings made by diverting offences from court (Neyroud 2018, p. 18). Such diversion may be a likely consequence of a more established conditional caution process in each force. The Ministry of Justice’s Impact Assessment, conducted when legislating the two-tier system, estimated overall costs of £109.19m over ten years of implementing the new approach (Ministry of Justice 2020b). This includes: (i) the increased costs to the police in training and operational costs in the increased use of conditional cautions; (ii) the increased costs for the CPS of prosecuting conditional caution breaches; (iii) the costs associated in funding treatment providers to facilitate some conditions; and (iv) the loss of PND revenue as PNDs will be withdrawn.

While OOCDs are generally more efficient than charging the offender, a condition-centred system of administering OOCDs will have its own costs. Rather than efficiency savings, OOCDs can result in the transfer of costs from the courts to the police, who need to create, administer and monitor OOCDs. As demonstrated, savings will also vary by disposal, whether they are administered on the streets or in custody and on offender compliance with the OOCD.

Effectiveness

Offender rehabilitation

Advocates of OOCDs also argue that their wider use supports the rehabilitation of offenders. This can be by the act of diverting them from court, sparing individuals the label, stigma and other disadvantages attached to a conviction and a criminal record (Ashworth and Zedner 2008). In addition, OOCDs facilitate the use of rehabilitative conditions to address the causes of offending behaviour and can therefore be more problem solving than a fine or a discharge (Bowen and Slade 2020). Although courts are empowered to impose rehabilitative support for offenders, they do not often do so. Instead, ‘fines remained the most common sentence accounting for 78% of all sentences in 2019, an increase of 11 percentage points since 2009’ (Ministry of Justice 2020c, p. 20).

Neyroud conducted an evidence review into the effectiveness of OOCDs and he concluded that OOCDs are effective, compared to court prosecution, at reducing harm and reoffending and sustaining victim confidence and satisfaction (2018, pp. 2-3). The NPCC’s Strategy on OOCDs emphasised this rehabilitative approach that: ‘Out-of-court disposals have conditions attached to them which seek to address underlying offending behaviour through rehabilitative conditions and/or enable swift reparation to victims and communities’(NPCC 2018, p. 13).

However, it is unclear whether OOCDs with conditions attached are more effective at reducing reoffending than those without such conditions. The evaluation of the condition-focused two-tier system of OOCDs pilot found no significant difference in proven re-offending between pilot and counterfactual areas (police forces still using the system of six OOCDs) (Ames et al. 2018, pp. 3-4). A follow-up analysis was conducted using the 12-month proven reoffending outcomes between the pilot and other areas (Sturrock and Mews 2018). This analysis concluded that there were no statistically significant differences between pilot areas and other counterfactual areas relating to: (i) the likelihood of reoffending; (ii) the length of time it took individuals to reoffend; (iii) severity scores for reoffences, based on the Cambridge Crime Harm Index (which gives an indication of how much harm an offence has caused); and (iv) the likelihood of re-offending for those with domestic violence flagged initial offences (Sturrock and Mews 2018, p. 2).

The analysis of the pilot study therefore did not demonstrate that the condition-centred two-tier system was more effective at reducing reoffending than the current system of out of court disposals. However, there is some evidence to suggest that OOCDs may allow more targeted diversionary measures for specific cohorts of offenders.14 Police force initiatives in which offenders are given rehabilitative conditions to reduce their reoffending have been found to be successful, as seen in Project CARA (in Hampshire Constabulary, aimed at perpetrators of domestic abuse) (Strang et al., 2017); Checkpoint (Durham Constabulary) (Wier et al., 2019) and Turning Point (West Midlands Police) (Neyroud and Slothower, 2013). The new two-tier system, in which community resolutions and conditional cautions will generally require offenders to comply with conditions, may therefore result in OOCDs that are more effective at reducing reoffending, although further research is needed in this area.

Victim satisfaction

OOCDS may also improve victim satisfaction, a possible advantage that aligns with increasing political efforts to facilitate greater victim centrality in the criminal justice system.15 The Code of Practice for each OOCD require that the victim is consulted, where appropriate, in decisions to administer an OOCD. This includes community resolutions (ACPO 2012, para. 2.1.2), PNDs (Ministry of Justice 2014, para. 3.60), simple cautions (Ministry of Justice 2015, para. 54)and conditional cautions (Ministry of Justice 2013, para. 2.47).The NPCC strategic principle for the new two-tier system directs that ‘Victims are at the heart of decision making, are listened to and understood, are informed of action taken and their views are recorded’(2018, p. 13).

There is some limited evidence to suggest that OOCDs may improve victim satisfaction through more effective victim engagement, compared to prosecuting offences at court. In 2011, the CJJI conducted an indicative study of a small number of cases to analyse whether forces made appropriate OOCD decisions. The inspection found that 53 out of 64 victims (83%) reported being ‘satisfied’ or ‘extremely satisfied’ with the OOCD (2011, p. 6). This compared to 14 out of 22 cases (64%) where offenders were prosecuted at court. The CJJI highlighted that ‘the level of victim satisfaction hinged largely upon the extent to which they have been kept informed and updated’ (2011, p. 8). It is therefore important to consider the process of administering an OOCD as well as the OOCD itself. These findings should be handled with caution, however, due to the small size of the sample.

In addition to consulting the victim, victim satisfaction can be improved through using victim-focused conditions. The FPN, PND and simple caution do not tend to involve the use of victim-focused conditions. However, the guidance for community resolutions (ACPO 2012, para. 3.4) and conditional cautions (Ministry of Justice 2013, para. 2.23) encourage authorised persons to attach victim-focused conditions where appropriate. Such conditions can include restorative justice conditions, typically involving some form of communication between the offender and the victim (Ministry of Justice 2012, p. 3). Victim-focused conditions can also take the form of victim reparations, in repaying the harm caused by the offender, such as the payment of compensation to the victim or paying a local community or charitable fund. It is possible that OOCDs with victim-focused conditions may be able to increase victim satisfaction with the criminal justice system.

4. Appropriateness, consistency and accountability

Appropriateness

Whilst OOCDs provide some possible benefits, their use also raises important concerns. The main concerns include whether appropriate decisions are made, whether the use of OOCDs results in net-widening and up-tariffing, and whether there is consistent decision-making in their use between and within police forces. Unaddressed, these concerns risk undermining public confidence in the system of OOCDs.

Appropriate decision-making

A key concern is whether the police follow the relevant guidance in decision-making when issuing OOCDs. These guidance documents allow the police some discretion in defining a low-level offence and interpreting the individual’s offending history when administering OOCDs. However, the CJJI has previously expressed concerns about the quality of this decision-making, variation in practice and the types of offences for which they were used; in 2011, they found that one-third of OOCDs analysed had not been administered appropriately (CJJI 2011, p. 22). The report noted that: ‘The 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’(CJJI 2011, p. 4). Similarly, although OOCDs should not generally be used for offenders with a significant offending history, some OOCD guidance allow officers discretion in interpreting offending history, to give a second chance to offenders with older or dissimilar offences. However, the CJJI reported that the most common reason for an inappropriate OOCD decision was non-compliance with the guidance on the offender’s offending history (CJJI 2011, p. 22).

OOCDs should also only be used for appropriate offences as some offences are felt to be too serious, or wholly inappropriate for an OOCD. This requirement seeks to ensure that the courts, with their greater sentencing powers, can impose sanctions proportionate to the offence. For example, due to their complexity, sensitivity and seriousness, offences involving hate crime or domestic violence are generally considered unsuitable for OOCD and should instead be charged.16 When considering the appropriateness of decision-making as a whole, the CJJI found that ‘the second most common reason for non-compliance was the nature of the offence itself, either by type or because of the gravity [of the offence]’ (2011, p. 23).

It is perhaps not surprising that the CJJI report found that the two most common reasons for the issuing of inappropriate OOCDs involved concerns surrounding the particular characteristics of either the offender or the offence. Such considerations lie at the heart of all sentencing decisions and it needs to be acknowledged that the issuing of an OOCD is, in essence, a sentencing process. As such, greater (and more up-to-date) scrutiny needs to be applied to decisions to issue OOCDs so that there is confidence that the guidance is being consistently followed and that the outcome (whether an OOCD is issued; which OOCD is used; whether and what conditions are attached; whether it is decided that a prosecution is required) is an appropriate one in the circumstances.

Net-widening and up-tariffing

As discussed above, an OOCD can be viewed as inappropriate if administered to an offender for a serious offence that should have been charged and prosecuted at court. However, the reverse is also true, as there are concerns that OOCDs are inappropriately used for low-level cases that could have been dealt with informally. This is referred to as ‘net-widening’, in which individuals are brought into the criminal justice system for actions which would previously have had no formal intervention at all. In a similar vein, ‘up-tariffing’ occurs when an offender is given a higher-level disposal where another form of OOCD could have been used. The two inter-related processes of net-widening and up-tariffing are problematic because they both result in individuals experiencing amplified contact with the criminal justice system, as offenders are brought in at a faster rate and there is a risk of an overall increase in the criminalisation of anti-social or low-level offences (Ashworth and Zedner 2008, p. 26).

Consistency

Important concerns have also been raised about the consistency in the use of OOCDs administered between and within police forces. The significance of inconsistency rests in its potential to indicate disparity and/or discrimination in police decision-making. In 2010, the Office for Criminal Justice Reform (OCJR) reported findings which evidenced disproportionate use of OOCDs according to gender, age and ethnicity (2010, p. 7).17 While some difference in decision-making can be explained by differing external factors such as local offender profiles and the crime mix, the degree of variation was also found to depend on internal factors, such as training and guidance, quality assurance, performance management and the extent and nature of local and national strategic oversight (OCJR 2010, pp. 13-14). The OCJR warned that the limited data available make it impossible to identify the extent of any discrimination occurring in practice. In 2011, the Joint Inspectorates concerningly reported that ‘[l]ocal practices – even within individual forces – were seen to heavily influence decision-making. This gave the appearance of a postcode lottery in relation to the disposal actually chosen’(CJJI 2011, p. 19). These older reports demonstrate that decisions about who will receive an OOCD, and the type of OOCD deemed to be most suitable, will depend on more than just legal guidelines. Such decisions invariably rely to some degree on individual officers applying their discretion within their working team culture and organisational expectations, which can result in variation of decision-making within a force.

In addition, the CJJI found that the use of OOCDs varied considerably between the 43 police force areas in England and Wales. In 2009, OOCDs as a proportion of all offences brought to justice ranged from 26% to 49% between forces (CJJI 2011, p. 5). In 2018, the Ministry of Justice crime outcome statistics indicated that the variation in the use of OOCDs between police forces has widened since the CJII report (Ministry of Justice 2019). In 2018, OOCDs as a proportion of all offences brought to justice ranged from 10% in Cleveland to 53% in neighbouring Durham.18

Some of this variation can be explained by police forces implementing their own OOCD disposal initiatives. Such variation can be positive where they facilitate worthwhile initiatives to develop a localised approach to address local problems (Campbell, Ashworth and Redmayne 2019, p. 178). Indeed, Durham Constabulary, with its Checkpoint scheme that offers support to offenders, is a good example of such positive variation. However, the prevalence of variation raises questions of the possibility of ‘a postcode lottery’ of justice, where criminal justice outcomes can depend on the location of the offender, rather than the offence committed (House of Commons Home Affairs Committee 2015).

Accountability

Underlining the concerns of the appropriateness and consistency of OOCD decision-making is the limited accountability of these low visibility, discretionary, police decisions. We can consider two forms of accountability in the OOCD process: ‘internal accountability’ and ‘external accountability’. The concept of internal accountability consists of a senior ranked officer scrutinising and authorising the OOCD before the disposal is administered. Internal accountability can also include ‘dip-testing’ or auditing of decision-making in the force after the decision has been made; this involves officers of a higher rank or within a different team reviewing a sample range, or all, of OOCD decisions to ensure they are suitable and in line with force policy. External accountability for the OOCD process is provided by scrutiny panels which review decision-making after the disposal has been administered.

Internal accountability

The internal authorisation requirements for administering OOCDs depend on the disposal and the offence, with more serious disposals and offences requiring a higher level of authorisation. Both the simple and conditional caution require the authorisation by an officer not below the rank of a sergeant, with certain either-way offences requiring an inspector while indictable offences must be referred to the CPS. However, the remaining four of the six types of OOCDs do not require the authorisation of a ranked officer. The community resolution, PND, FPN and cannabis/khat warning are ‘on-the spot’ disposals that can be administered by a police constable with limited internal scrutiny over this decision-making. The primary internal safeguards in these circumstances are that officers rationalise and record their decisions. However, this self-report form of accountability has been found to be ineffective, as officers have been found to rarely record a full rationale for their decision-making (CJJI 2011, p. 24). This is problematic as:

‘By issuing an out-of-court disposal, a police officer may be perceived as acting as judge and jury, and officers – and indeed forces – should be able to justify the decisions they make. The recording of a rationale, which need be no more than a few lines on the custody record, crime report or other appropriate place, is necessary to account for the action taken and is part of the drive towards greater transparency.’ (CJJI 2011, p. 24)

This recording of rationale is a key form of internal accountability, though it is not clear how effective these forms of accountability are in affecting decision-making, or if they are merely means for police officers to account for the decisions they have made.

External accountability

Concerns were previously voiced about the lack of external accountability and open justice surrounding OOCD decision-making. In response to such concerns, the first OOCD scrutiny panel was created in Cheshire in 2013 to provide local, external scrutiny over this decision-making, with other force areas following their lead. Panels analyse a sample of cases for which OOCDs have been used and scrutinise these decisions. They can then conclude that the OOCD was ‘appropriate’, ‘inappropriate’, or ‘appropriate with comments’. While the Panel’s findings cannot change the outcome of a case, they may feed lessons back to the force to guide policy changes and officer training (Lord Justice Gross 2013). The panels are also intended to have a role in improving public knowledge of OOCDs (HM Government and College of Policing 2014, pp. 10-11).

In 2015, the House of Commons Home Affairs Committee recommended that each force create an OOCD scrutiny panel ‘so that decisions to use [out of court disposals] are reviewed for appropriateness and consistency across the country’ (2015, p. 13). The NPCC similarly highlighted the need for this scrutiny in accordance with the strategic principle that: ‘Decisions are transparent, and involve independent and public scrutiny’(2018, p. 13). The NPCC advised that these panels should be comprised of representatives from the police, CPS, magistrates, Office of Police and Crime Commissioner, youth offending teams, probation, an independent advisory group, any person relevant for the thematic of the panel (for example, the hate crime lead for the force), and a representative for the victim’s voice (2018, p. 29).

However, although these panels have the potential to facilitate external accountability of police decision-making, questions have been raised about their effectiveness. While there is some guidance governing their use, individual panels are free to decide their membership, regularity of meetings, type of cases they will analyse and how they will publish their results, resulting in variation between police force areas. It has been noted that: ‘The current arrangements have evolved organically over time and therefore vary considerably between forces in terms of scope, membership and frequency of meetings’ (HM Government and College of Policing 2014, p. 10). This variation risks further feeding into the inconsistencies that can arise from the use of OOCDs.

In 2015, the Magistrates Association conducted research into the effectiveness of these panels, identifying that only 50% of the 12 magistrates interviewed reported that panel findings were shared with the public: the Magistrates Association recommended that a summary of each Panel meeting should be publicly available (Easton et al. 2015, pp 22-26). Further research is needed on the effectiveness of these panels to act as a robust form of external accountability, identify unsuitable OOCDs, improve police decision-making and reassure the public about the use of OOCDs in their area. This is particularly urgent as we move to a two-tier system of OOCDs, in which police officers may administer more conditional cautions which, if breached, could result in offenders being charged for the original offence. With these changes, it is time that clear guidance is produced for these panels and their findings on police decision-making are consistently publicly shared so that this accountability mechanism can inform wider research and policy decisions on OOCDs.

Another form of external accountability exists to complement these localised panels. As part of their Crime Data Integrity inspections, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS)19 dip-test a sample of each force’s OOCDs to ensure they comply with the published rules and standards (HMIC 2015). These reports are published on the HMICFRS website and so are publicly available and may act as an effective, though less frequent, external form of accountability on OOCD decision-making.

5. Conclusion: Research questions and priorities

This analysis provides a summary on what we know about OOCDs and, equally importantly, the gaps in our knowledge. As we move to a new two-tier system, it is important that further research fills these gaps. For example, we need a breakdown of the use of simple and conditional cautions administered by the police, rather than the current data which combines these disposals together. We also need more data on the characteristics of individuals who receive OOCDs to be able to scrutinise the consistency of decision-making within and between police forces. These data should be collated nationally to increase transparency of this decision-making. Efforts have been made to create external, local accountability of decision-making in the form of OOCD scrutiny panels. However, it is not clear how effective these panels are at ensuring their force identifies and corrects any inappropriate decision-making, nor whether there is a joined-up approach between panels across police force areas. These are gaps in the data that urgently need to be filled for a more comprehensive understanding of the use of OOCDs.

As the system of OOCDs rests significantly on the premise that offenders are able to give their informed consent to being dealt with out of court (and foregoing the safeguards the court process entails), it is clear that greater efforts need to be made to ensure that this is how the system works in practice. People caught up in the criminal justice system often have vulnerabilities that may impede their ability to give informed consent – particularly when in the stressful position of being in custody or facing the possibility of imminent arrest. When the two-tier system is rolled out nationally, the attachment of conditions to all OOCDs adds a further dimension and recipients must fully comprehend and consent to the impact of the disposal to which they are giving their consent.

OOCDs may be an efficient and cost-effective response to low-level offending behaviour compared to charging and prosecuting an offender. However, these cost and efficiency savings will depend on the disposal used. The new two-tier model, through which offenders are required to complete conditions, will be more costly than the current system of OOCDs. The recent Government White Paper, A Smarter Approach to Sentencing, will move the police towards a consistent approach in all forces adopting the two-tier system of OOCDs, rather than the current patchwork implementation across England and Wales. The Ministry of Justice has stated its intention to work closely with forces to support implementation within a sensible timeframe over several years. Further research is needed to understand the conditions used in each force, the costs of these conditions and identify who will pay for them. Conditions paid for by the offender risks a two-tier system whereby only those who can afford to pay can benefit from this diversion. On the other hand, if they are funded by the police, resources must be available to each police force to ensure pathways are sustainable in the long-term. A balance must be struck whereby we can ensure some uniformity of conditions available between police forces, while allowing for some local variation based on offender needs and third sector availability in the area.

Changes to the system of OOCDs are often framed as a means of improving victim satisfaction and public confidence in the criminal justice system. However, evaluations on whether OOCDs improve victim satisfaction typically involve small sample sizes. This gives us little confidence in whether, or how, OOCDs improve victim satisfaction. Further research should be conducted into whether OOCDs, in their current or simplified form, improve public confidence in the criminal justice system. Although a number of policies and guidance documents speak to the public in demonstrating that OOCD decisions are appropriately made, it is not clear that the public is aware of, and in favour of, the innovative approaches to these disposals.

OOCD scrutiny panels have the potential to improve public confidence in these disposals. However, there is limited research on their effectiveness in holding the police to account and improving the appropriateness of decision-making. Without widespread knowledge of their work, it is unlikely these panels can reassure the public about the system of OOCDs. Further attention and support given to these panels may help address the concerns in the use of OOCDs highlighted in this report and ensure that OOCDs are used only in appropriate cases.

References

  1. Note that there is a different out of court disposal framework for juveniles not covered by this paper. ↩︎
  2. An enhanced DBS check may be required before an individual can start work in a role that might bring them into contact with children or vulnerable adults. These enhanced checks may contain non-conviction information supplied by police forces if it is deemed relevant and considered that it ought to be disclosed. ↩︎
  3. The penalty imposed depends on the offence for which the FPN is being imposed. Some offences have a statutory penalty (for example, the penalty for abandoning a vehicle is set at £200) whilst other offences have a statutory range (for example, littering has a range of £50 to £150). Full details can be found here: https://www.sentencingcouncil.org.uk/explanatory-material/magistrates-court/item/out-of-court-disposals/7-offences-for-which-penalty-notices-are-available/. ↩︎
  4. See Ministry of Justice (2014) at pp. 25-27 for a list of the ‘Upper Tier’ (£90 penalty) offences and the ‘Lower Tier’ (£60 penalty) offences. Instead of a fine, authorised persons can also administer a PND-E, which requires the offender to complete an educational course relating to the penalty offence. ↩︎
  5. There are some restrictions to the use of simple cautions in response to certain offences. A simple caution may only be used in response to an indictable only offence (the most serious offences which can be tried only in the Crown Court) where a police officer of at least the rank of Superintendent determines that there are exceptional circumstances that justify such a course of action and where the CPS agree that a caution should be given. There are also certain either-way offences specified by the Secretary of State for which the use of a simple caution is restricted (either-way offences are offences which can be tried in either the magistrates’ courts or the Crown Court depending on the seriousness of that particular offence). For these offences, a simple caution may only be issued where a police officer of at least the rank of Inspector determines there are exceptional circumstances relating to the offence or the offender. ↩︎
  6. Although exceptions apply, as shown in the Recent Developments and Reform Proposals section. ↩︎
  7. Created in 2012, Police and Crime Commissioners are directly-elected officials who are responsible for securing efficient and effective policing in their police area. ↩︎
  8. Ministry of Justice (2020) Criminal justice system statistics quarterly: December 2019, Overview Table A1.1. Note that the release of the 2019 and 2020 cautions data is delayed, as the Ministry of Justice’s data extract of the Police National Computer (PNC) has been inaccessible during the period of guidance on social distancing and restrictions on travel during the Covid-19 pandemic. ↩︎
  9. Ministry of Justice (2020) Criminal justice system statistics quarterly: December 2019, Overview Table A1.1. ↩︎
  10. This is the least serious category for offences that must be tried at magistrates’ courts, such as TV licence evasion and less serious criminal damage. ↩︎
  11. In the way the Ministry of Justice records the data, indictable offences include both indictable only offences and either-way offences. ↩︎
  12. Ministry of Justice (2020) Criminal justice system statistics quarterly: December 2019, Overview Table Q1.3. The figures given relate to the principal offence for which the offender was being dealt with. When an offender is being dealt with for two or more offences it is the offence for which the heaviest penalty is imposed. Where the same disposal is imposed for two or more offences, the offence selected is the offence for which the statutory maximum penalty is the most severe. ↩︎
  13. Excluding the time involved in subsequent court appearances, the average processing time for charging an offender was eight hours and 45 minutes. This was only slightly longer than the time taken to administer a conditional caution (eight hours and 12 minutes) but significantly longer than a street-administered PND (three hours and 31 minutes) (CJJI 2011, p. 29). ↩︎
  14. The NPCC notes, for example, that ‘[m]any forces already have specific diversion options for female offenders as well as other cohorts including veterans, 18-24 year olds, people with mental health issues and those who misuse drugs and alcohol’ (2018, p. 9). ↩︎
  15. See, for example, the ‘Victims Strategy’ (HM Government 2018) and the ‘Consultation on the New Victims’ Code’ (HM Government 2020) and also the discussion in Hoyle and Zedner (2012). ↩︎
  16. There are exceptions to this for forces with special dispensation from the Director of Public Prosecutions. This includes the forces piloting the new two-tier approach to out of court disposals and a growing number of forces, including Hampshire Police, which have an intervention course for perpetrators of domestic abuse (Project CARA). ↩︎
  17. This concern is exacerbated by the breakdown of offender characteristics, such as ethnicity, age and gender, being available for only two types of OOCDs (cautions and PNDs). The omission of this data in respect of the other forms of OOCDs renders it impossible to identify whether there are any trends across the use of OOCDs generally. This similarly prevents the possibility of determining whether any discriminatory decision-making is operational at a nationwide level. ↩︎
  18. This range discounts British Transport Police, not a territorial force, and Staffordshire Police, which has implemented the two-tier pilot on out of court disposals. ↩︎
  19. In 2017, HMIC took on inspections of England’s fire and rescue services in addition to its historic responsibilities for policing and became HMICFRS. ↩︎