Wednesday 14 June
Our research on the impact of Covid-19 on the criminal justice system in England and Wales found that court backlogs, which were substantial before the pandemic, were projected to reach unmanageable levels by 2024. Our follow-up project, funded by the Hadley Trust, is looking at the ‘front end’ of the criminal justice system, to see if out-of-court disposals provide an opportunity to reduce the flow of people into the courts and cut reoffending rates. Our Head of Strategy and Insight, Danny Shaw, reveals how the first phase of the project took an unexpected turn...
When you embark on a research project it’s not always clear which direction it will go in. Bits that appear interesting at the start turn out to be unsurprising. An aspect of the study that you’re sure will be significant ends up as a footnote. But occasionally, something you hadn’t even thought about when you designed the work turns out to play a central role. And so it has proved with our ‘Out-of-Court’ project.
The aim of the research when we began was to shine a spotlight on the use of out-of-court disposals (OOCDs), which play an indispensable, but under-stated, role in the machinery of policing and criminal justice. ‘Out-of-court disposals’ is a dreadful, technical term but it’s probably the best way of describing a batch of sanctions applied by the police which do not involve the courts. There were more than 200,000 of them issued across England and Wales in 2020, from cautions to cannabis warnings; community resolutions to penalty notices for disorder; conditional cautions to khat warnings. In addition, there’s a range of schemes, which we also looked at, where suspects and offenders are diverted away from the criminal justice system onto rehabilitation programmes, sometimes with the threat of a caution or prosecution hanging over them if they don’t comply.
We examined evidence about the impact of OOCDs on reoffending rates from a series of reviews and reports. We also conducted interviews with key people in policing and the criminal justice system to find out their experiences and views of OOCDs and whether there’s scope to expand their use. And, as part of the project, we amassed and scrutinised data from a variety of sources to identify trends and patterns in how OOCDs have been applied. But it was a far from straightforward exercise.
There is no single website, no definitive repository of information, no one statistical document which tells you all you need to know about OOCDs - what they are, the variety of different sanctions available, how they work, figures on usage, reoffending rates and so on. The material is spread around - and some of it is non-existent. One of the reasons for that is that OOCDs are used by police forces in different ways. So, about halfway through our work, it occurred to us that we should find out what details individual forces provide publicly about their use of OOCDs. The findings are concerning, to say the least.
We trawled through every website belonging to the 43 police forces in England and Wales. These sites are the main channel of communication between a force and its local community, where it can tell people what it’s doing to combat crime, where its priorities lie and who the chief officers are. The sites typically provide data on offending, stop and search and use of force, as well as information on crime prevention, local campaigns and successful cases. It’s also a vital portal through which members of the public can report crimes, ask for advice, take part in consultations and apply for jobs.
Our mission was to find out what facts and figures each website supplies about out-of-court disposals - the sanctions that police themselves have the power to use. We searched through each site using key words. Given how frequently OOCDs are applied by officers, and the variety of disposals, you’d expect at least some information to be accessible with a click of a mouse or a keyboard stroke. But, apart from a page of rudimentary guidance about fixed penalty notices for motoring offences, in the vast majority of cases there was virtually nothing there.
Only six police forces provided a basic definition of what an OOCD is: Avon & Somerset, Cambridgeshire, Durham, Northumbria, Nottinghamshire, Staffordshire. With the exception of Northumbria, we judged they were examples of “best practice” because they each featured a page defining OOCDs and the types available, in addition to the requirements needed in order to receive one.
Thirteen forces were assessed by us as requiring “some improvement” because the only details they issued about OOCDs were about particular types of sanction or the requirements for their use, often within a website news article or information about a crime.
The remaining 24 forces we graded as in need of “significant improvement”, as they do not describe OOCDs as an umbrella term or individually, nor do they set out the types of diversion schemes and interventions available. None of them shared any data on OOCDs, outside of Freedom of Information requests.
Analysis of data on crime outcomes, covering the year ending in March 2020, found that OOCDs are used mainly for drug crimes (40%), violence against the person offences (27%) and theft (13%). A small proportion, 1%, are issued for sexual offences. And yet, as our research has established, most forces don’t make it clear that for these crimes community resolutions, cautions, conditional cautions, diversion schemes and deferred prosecution may be viable options for the police to take. It is crucial that witnesses are aware of all the possible outcomes of an investigation - out-of-court disposals as well as prosecutions.
Some police forces use their news pages to update people on activity relating to out-of-court disposals, so we did further analysis of 41 websites (two couldn’t be searched for technical reasons). We found that between January 2019 and June 2021 only four out of the 41 forces had published news articles describing the function of OOCDs, changes to the system or a new scheme. There were eight news pieces in total, from Northumbria, Staffordshire, Surrey and Thames Valley - the force which Crest is partnering with in the second phase of our research project. One item announced the roll out across the force of Thames Valley Police’s drug diversion programme for young people.
We also examined how many police website news reports referred to OOCDs as an outcome for a specific crime or in relation to an offender. We found that over the two-and-a-half year period there’d been 402 such articles, 79% of which mentioned fixed penalty notices (FPNs). The bulk of these news reports were about FPNs issued because of breaches of coronavirus regulations. Some, like this Merseyside Police article, mentioned other kinds of OOCD, as well as FPNs. But news reports are no substitute for a web page explaining what out-of-court disposals are, how they work and when they’re used.
The National Police Chiefs’ Council (NPCC) has been keen to fix the problem. In 2017, in an introduction to its four-year national strategy on charging and out-of-court disposals, Deputy Chief Constable Sara Glen wrote about the importance of making the system clearer to the public:
“I am hugely passionate about this area of policing and believe that working in partnership within the Criminal Justice System and outside is vitally important, from improving the flow of information, to simplifying decision making, improving transparency, and, ultimately, providing the best overall service to the public,” said DCC Glen, who was then the NPCC lead on OOCDs.
But the low number of forces that make information on OOCDs available to the public suggests the transparency part of the strategy has failed to materialise. That is clearly a worry because forces across England and Wales are moving to a new system of out-of-court disposals which will need explanation, clarity and public consent if it’s to have any chance of success.
The new arrangements are being brought in via the Government’s flagship criminal justice legislation, the Police, Crime, Sentencing and Courts Bill. It proposes replacing cautions, conditional cautions, penalty notices for disorder, cannabis warnings and khat warnings with two new statutory out-of-court disposals, a Diversionary Caution and a Community Caution. Police will also be allowed to continue using community resolutions. About one-quarter of forces have already adopted a streamlined approach to OOCDs but the remainder will be compelled once the Bill becomes law.
As the new system is implemented it is imperative police forces take the opportunity to set out clearly and comprehensively their approach to OOCDs. Avon and Somerset Police have shown on their website how it should be done – there is even a separate page with details of the new model – while North Wales Police include data on OOCDs in an annual diversity report. Transparency is not an optional extra, a ‘nice to have’ - it is a ‘must do’. If police forces don’t explain to the public what their powers are and how they apply them, how can they expect to have support for what they do?
Our research project on out-of-court disposals is only part-way through; as well as our work with Thames Valley Police on its use of OOCDs and diversion schemes, we will be conducting national surveys and focus groups to gauge public understanding about them and whether there’s backing for their expansion. But we have already found out something we didn’t anticipate - there may be more discoveries in the months ahead.
We would appreciate hearing from interested stakeholders about the future of out-of-court disposals and diversion, and what this means for the wider criminal justice system.
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See details on Crest's partnership with the Thames Valley Violence Reduction Unit here.