Less is More

Last week saw Transform Justice publish a report by Rob Allen into the whole business of out of court disposals:-  

Foreword

In the old days people would talk of the neighbourhood bobby giving a boy a clip round the ear when they got into trouble. Those days are thankfully over, but have we moved from action which was too informal and unregulated to a world where police no longer have the confidence to make the best use of their powers to use out of court disposals or to take no formal action at all. Sometimes less is more – a quiet word of warning may be all that is needed to prevent a teenager committing another crime. In more serious cases, police should be able to use cautions, warnings and penalties to both mark wrongdoing, and avoid unnecessary court hearings. 

In recent years, the use of these out of court remedies has declined, much more so than have offences prosecuted in court. And this decline has been met with deafening silence, including from the police. It is hard to pin down quite why out of court disposals have declined, but Rob Allen has made some suggestions in this report. 

One of the key reasons for the decline is a mostly “behind closed doors” campaign by judges and magistrates against out of court disposals. They warned of a “cautions culture” in which out of court disposals were being misused by gung-ho, unregulated police. They contrasted these nontransparent deals between police and offender with the open court where justice was both done and seen to be done. Lawyers were also critical of out of court disposals suspecting that, in the absence of legal advice, people too often admitted to offences they may not have committed, and in so doing acquired a criminal record. 

Out of court disposals were left with few champions and the police reacted to the political signals. The confusion surrounding government policy on out of court disposals (which has been in flux for three years) undoubtedly encouraged police to think twice about imposing them, as did a lack of funding for them.

One of most stinging criticisms of out of court disposals is that they do not command public confidence and, by implication, do not satisfy victims. In fact, the public seem no less confident in out of court disposals than in court processes, and victims are often more satisfied. All the evidence points to well targeted out of court disposals being more effective than sentences in reducing reoffending, and they are a good deal cheaper. With local courts closing altogether, and with resources limited, it makes sense for us to champion out of court disposals, and to reverse their decline. 

Penelope Gibbs Director, Transform Justice

Executive Summary

England and Wales has a long-standing tradition of diverting first time and minor offenders from prosecution. While the practice is most fully developed for children who commit crime, a wide range of out of court disposals exists for adults too. A community resolution, simple or conditional caution, drug warning or penalty notice can be administered quickly, cheaply and locally, allowing the police to concentrate on more serious crime. Diversion can work better than prosecution at reducing reoffending, and is generally acceptable to victims as long as they are kept properly informed. 

Some judges, magistrates and lawyers think that offenders may accept a caution in circumstances when they are not guilty of an offence, or do not understand the implications for their criminal record. They are concerned that too many cases are diverted which should properly come to court. Yet many people who do go to court get low level penalties such as fines which could, in effect, be imposed out of court and which do nothing to help tackle any underlying problems an offender may have. So it seems there is scope for greater use of diversion. Recent years have however seen a large decline in the use of diversion. 

More than half of first time offenders now go to court rather than receive a caution, compared to 1 in 5 ten years ago. The decline partly results from a desire to end a “cautions culture” by restricting the availability and use of out of court disposals. Alongside measures to limit diversion for serious and repeat offenders, the government intends to replace the existing range of options with just two - a community resolution and conditional caution.

Three police forces have been piloting the two tier system and, while the evaluation is yet to be published, it seems clear that, if diversion is to fulfil its potential, a number of measures will need to be taken. These include : 

• Encouraging police to use their discretion and professional skills to resolve minor problems and disputes at the lowest level locally without the need to take formal action 

• Making sure that more first time offenders and cases which are likely to be dealt with by an absolute or conditional discharge or small fine are instead dealt with outside court – including many cases currently dealt with under the “single justice procedure”. 

• Extending the approach to diverting children away from the courts to young adults, so that they are given a greater opportunity to grow out of crime. 

• Identifying and promoting the best models for scrutinising diversion arrangements. 

• Funding a suitable range of treatment options (including restorative justice) to be attached to community resolutions and conditional cautions. 

• Developing a justice reinvestment approach which uses the savings which diversion brings to police, prosecutors and courts to fund local programmes designed to further reduce crime and prevent offending.

--oo00oo--

This on Rob Allen's 'Unlocking Potential' blog site:- 

Why Less is More - The Case for Dealing with Offences Out of Court

With mounting pressure on police and justice budgets across the country, it’s surprising that recent years have seen a large decline in the use of out of court disposals to deal with low level offending. Simple or Conditional Cautions, Penalty Notices, Community Resolutions and Drug Warnings can offer a quicker, simpler and more effective response than a prosecution. But more than half of first time offenders now go to court rather than receive a caution, compared to 1 in 5 ten years ago. A new report published by Transform Justice – Less is more - the case for dealing with offences out of court - says it’s high time to reverse that trend.

It’s true that not everyone’s a fan of diversion. Some judges, magistrates and lawyers think offenders may accept a caution when they are not guilty or do not understand they will get a criminal record. Others complain diversion’s got out of hand with too many serious offences or persistent offenders getting little more than a slap on the wrist instead of being taken to court. Today’s report, however, shows that almost half a million convictions last year resulted in low level penalties such as fines or discharges. Unlike some diversion measures, such sentences do nothing to rehabilitate offenders or compensate victims.

Politicians may think it plays well with the public to promise an end to the “cautions culture”- former Justice Secretary Chris Grayling did so back in 2014. But on grounds of efficiency, effectiveness and economy, as long as there are proper safeguards there’s a strong case for extending not shrinking the availability of options for dealing with crime outside court.

As well as legislating to limit the use of diversion for serious and repeat offenders, Governments since 2010 have developed a policy intention to replace the existing range of out of court disposals with just two - a community resolution or a conditional caution. Three police forces have been piloting this two tier system and, while an evaluation is yet to be published, change will be needed if diversion is to fulfil its potential.

The most important is the need to fund a suitable range of treatment options so that where necessary petty criminals can be helped to solve the underlying problems which so often drive their offending. Pilot programmes such as Operation Turning Point (OTP) in the West Midlands and Checkpoint in Durham have shown that rehabilitation can work at this stage in the criminal justice process. And it’s affordable. OTP achieved a saving of around £1,000 per case, including all of the costs of the intervention programmes. This suggests the potential for diversion arrangements can kick start a justice reinvestment approach which uses the savings diversion brings to police, prosecutors and courts to fund local programmes designed to further reduce crime and prevent offending.

There’s a case too for extending the approach to diverting children away from the courts to young adults, so that they are given a greater opportunity to grow out of crime. South Wales Police have adopted this approach with promising results.

If there’s to be more in the way of diversion, local arrangements will need to enjoy public confidence. Most police forces have established scrutiny panels to keep an eye on the kinds of offenders getting out of court disposals and what they are being required to do in terms of rehabilitation and reparation. Work needs doing to identify the best models for holding police forces to account for their decision-making. The Transform Justice report proposes that panels should ask not only if cases dealt with out of court should have been prosecuted – but also whether court cases leading to nominal penalties would have been better diverted.

Six years ago the Police Inspectorate argued that 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. Today’s Transform Justice Report concludes by calling on Government ministers and criminal justice stakeholders to communicate the positive advantages of measures out of court and make efforts to show their benefits. Rather than railing against an imaginary cautions culture, ministers should be promoting a culture of cost effectiveness – and that includes a greater not a lesser role for diversion.

Rob Allen