Monday 4th October 2021
As part of our long-term research into the criminal justice system, we have been looking at the ‘front end’ and, in particular, the use of out-of-court disposals. These are sanctions applied by police which do not lead to prosecutions or involve the courts. Examples are community resolutions, cautions and conditional cautions. In July, we showed that too many police forces were failing to make clear to the public how they use OOCDs. In this phase of the research, we conducted a ‘deep dive’ into Thames Valley Police, carrying out 26 interviews and focus groups with officers, staff in youth offending teams and people working on programmes to steer offenders away from crime. Crest’s Head of Strategy and Insight Danny Shaw, together with Senior Analyst James Stott and Analyst Intern Delene Adams, consider the findings:
When it comes to criminal justice, Thames Valley Police has a tradition of innovation. It was there in the early 1990s, under the leadership of Sir Charles Pollard, that the force pioneered the use of restorative justice, which brings victims and offenders together to discuss and understand the damage and hurt caused by a crime and what can be done to set things right.
Thames Valley is also the setting for a fresh approach to combating youth crime. In October 2020, it rolled out a scheme for under 18s to reduce the harm caused by drugs. Those caught in possession of small amounts of illegal substances can take part in a programme to address their offending - known as ‘diversion’ - rather than face prosecution. It involves six drug awareness sessions to help young people make informed choices; many have engaged with it in a positive way.
Through our ‘deep dive’ we were able to study the workings of the programme, as well as the wider use of out-of-court disposals (OOCDs) for young people and adults. In the 12 months to the end of March 2021, 9,034 OOCDs were issued by the force - about 174 each week. In fact, Thames Valley Police make more use of OOCDs than most other constabularies; of all recorded offences in the region, 5.9% result in an out-of-court sanction, compared to 4.3% across England and Wales.
But within the force area, we came across big differences in the use of OOCDs and diversion programmes - between adults and people aged under 18.
When a young person in Thames Valley aged 10 to 17 is suspected of a crime, their case is dealt with by the police Youth Justice Unit (YJU), comprising two sergeants, officers and staff. Three types of out-of-court sanction may be considered: community resolution, youth caution and youth conditional caution. The framework was introduced in 2012 under the Legal Aid, Sentencing and Punishment of Offenders Act and gave police greater flexibility to issue OOCDs as part of a ‘child-first’ approach which placed more emphasis on prevention.
When deciding which out-of-court sanction or diversion scheme to use, the YJU usually informs or consults one of the nine Thames Valley youth offending teams (YOTs). They are multidisciplinary units, based in each local authority, whose staff have backgrounds in social work, probation, policing and healthcare. YOT staff are able to help the young people referred to them and commission services to tackle specific problems. There are programmes to deal with offending behaviour, manage emotions, tackle drug and alcohol misuse, improve speech and language skills and address physical and mental health issues.
We found the relationship between the police-led YJU and YOTs to be broadly positive, with the ‘child-first’ approach of YOTs both informing and challenging police decision making. But the aims of the YJU and YOTs sometimes appeared to be in conflict, with those on the police side primarily - unsurprisingly perhaps - focused on enforcing the law.
Some YOTs said there were inconsistencies in how decisions are made - in certain parts of Thames Valley a joint panel holds weekly meetings; in other areas it’s more ad hoc. One YOT member said: "I would say I don't think we get enough opportunities to engage. I sometimes feel like it's rather a courtesy call than taking on board what we are saying."
Thames Valley Police and its partner agencies pointed out that it’s not possible to apply a ‘one-size-fits-all’ approach because each area has different caseloads and demands, which means flexibility is needed.
At the sharp end
On the ground, we were informed that some officers don’t follow the correct process to ensure cases involving young people are dealt with quickly. There needs to be a real push to ensure police - frontline officers, detectives and supervisors - are aware of the potential value of OOCDs and diversion programmes for young people and the importance of a timely response.
Worryingly, some YOT staff complained about a lack of consultation when offenders are given community resolutions - light-touch OOCDs which do not form part of a criminal record. “I appreciate that they want ... a speedy response. I appreciate the purpose of it but I'm not sure the police on its own should be the ones making those decisions,” said one YOT worker.
Another told us: “I have seen community resolutions authorised by inspectors ... for quite nasty offences. I'm thinking ... this is missing the point."
The force said the use of community resolutions for under-18s is monitored by the YJU, with authorisation from a police inspector required for low-level, non-intimate domestic incidents. Victims often prefer community resolutions because they are a way of holding an offender to account without having to go through a formal criminal justice process.
Among the YOTs in Thames Valley, different approaches emerged around the controversial issue of ‘no comment’ interviews. In one area of Thames Valley, if a suspect refuses to answer questions police are not permitted to issue an out-of-court disposal as it’s considered the young person has not admitted the offence. Elsewhere, officers and YOT staff believe a ‘no comment’ interview indicates the suspect is simply not denying the offence or putting forward a defence, so should be eligible for an OOCD - as long as there is some sort of acceptance of responsibility when the sanction is administered. It means that for the same offence, a young person is sent to court in one part of Thames Valley, but given an out-of-court sanction in another area, risking disproportionate outcomes for individuals from certain backgrounds. One YOT worker said: “I think the guidance needs to be looked at ... and it needs to be rewritten for [this] to be addressed, because I do agree some people are being unfairly treated.”
Some YOTs have been taking steps to iron out inconsistencies, through peer reviews, where two teams make a decision on the same case, and ‘blind’ panels, where personal information about a young person is removed from the process.
The YJU and YOTs agreed the faster a case is dealt with the better.
One YOT worker said “short, sharp interventions” work best. Another remarked: "If we can actually get in there and deal with them, as soon as possible after the offence, it has more effect on them. Because in a 14 year old child's mind, what happened five or six months ago is years ago.”
But delays in police investigations mean some cases aren’t referred to YOTs quickly enough. We were told by one YOT worker: “There are quite often problems with stuff coming through late, which we then have to run around for. I wouldn't say we're quite headless chickens, but we have to try and get a lot of stuff put in place at very short notice."
Another said: “I think in one case, we got the paperwork about a year later when I think the police were doing an internal audit. And you almost feel embarrassed to call and offer them support because so much time has elapsed. But we do anyway, because I think we like to give them an opportunity to engage if they are at risk of reoffending.”
In typically inventive Thames Valley fashion, a number of YOTs have come up with solutions to bridge the gap between first contact with the police and the out-of-court decision. One example is a ‘prevention letter’ that can be sent from the police to a young person before they’re formally referred for an OOCD. Another YOT has set up a youth diversion hub to work with young people regardless of whether they have been given an OOCD. One YOT is even looking at a service to support young people who have been released by police under investigation.
Assessment is crucial
A key part of the YOT process is a comprehensive assessment of a young person: their offending, risk level, as well as information about their home life, education and involvement with other services, such as social care. The standard assessment tool for YOTs, AssetPlus, was devised by the Youth Justice Board; most YOTs use a modified, shortened version to ensure out-of-court work is completed more speedily. One YOT worker described how an assessment can help make the case for an OOCD:
"When you get the opportunity to do their assessment, and you look at the background, and the trauma, and the possible exploitation, that puts a different light on it often and we're able to provide that justification to say, rather than wait for the court process to catch up with this young person, and wait that six months before they get to court, if they get to court, and if they're found guilty ... we can start working with them immediately.”
Another said simply: “You see the child before the offender.”
During the assessment, it’s best practice for YOT case workers to meet an offender and their family; in one case it was discovered that the parents of a young person, who was being home educated, could not read or write. As one YOT worker explained, determining what kind of OOCD and diversion programme to use hinges on a thorough assessment of their needs and background:
"We would not want to make a decision about engagement unless we've got our foot in the door," they said.
Or, as another YOT staff member put it: “These are voluntary interventions. We’re really clear around what they do and don't have to do. So it's not like we coerce them into engaging ... but we get out there and meet them face-to-face and provide them with opportunities.”
Trends and results
Many of the YOTs said OOCDs now make up the bulk of their work, much of which involves the use of community resolutions. That certainly tallies with long-term trends across England and Wales where there’s been a drive to divert young people away from the courts and custody. In a Joint Inspection by HM Inspectorate of Probation (HMIP) and HM Inspectorate of the Constabulary and Fire & Rescue Services (HMICFRS) in 2018, YOTs estimated that between 30% and 80% of their workload involved out-of-court work.
After the outbreak of the coronavirus in March 2020 when restrictions on travel and indoor gatherings were introduced, youth offending teams in Thames Valley moved online. Some YOT workers told us the young people they’d dealt with had engaged “far better” with remote working than expected and were “more willing” to have honest and open conversations about difficult topics on a computer link than face-to-face, though others thought it was easier to build relationships in person.
Thames Valley Police had extended their drug diversion programme for young people after concluding two pilot schemes were a “success”. But in general there is a lack of data about the impact of OOCDs. Although YOTs collect figures on the number of under 18s who enter the criminal justice system and how many reoffend, there’s little evidence to show if particular sanctions or programmes work. Just one of the Thames Valley YOTs said it had conducted an ‘impact evaluation’, where it measured the effect on recidivism in a statistically robust way with support from an independent researcher.
However, when young people commit further crimes after being given an OOCD, some YOTs carry out reoffending ‘audits’ to explore how practices can be improved. Many YOTs are also on the look-out for notable trends. For example, one YOT spotted a disproportionately high number of girls within their cohort, so are planning specific programmes for females. Another area noticed a number of young transgender people in its caseload so ensured staff were properly trained and more equipped to engage with this cohort.
It’s different for adults
When someone reaches the age of 18, the way they are dealt with by the criminal justice system suddenly changes. It is no exception for out-of-court disposals. There is no equivalent of a youth offending team for adults to assess the individual and determine the most appropriate sanction and diversionary programme. Instead, the process is driven largely by the police. In Thames Valley, officers sometimes administer an OOCD on the street, particularly if it’s a community resolution; they may also do it in the custody suite. If they decide to refer an offender to a programme to tackle the underlying causes of their criminal behaviour there are six providers they can choose from.
Overall, police officers we spoke to said OOCDs achieved timely justice, especially compared to taking a case to court. One said: “I feel like our victims are a lot happier because some of these investigations, we can investigate for six months and then others, a lot longer. Being able to deal with an incident within the first time of seeing someone or within a week period or even a month, I think there's a lot more victim satisfaction."
Officers told us there’d been an increase in the use of OOCDs and diversion schemes over the past ten years in Thames Valley and the process had become more formalised. "It's modernising policing a little bit and looking at it as a public health issue," said one.
As with under-18s, most adult schemes moved online after the pandemic. Those providing the courses claimed the convenience and flexibility of e-learning and video conferencing had boosted referral, engagement and completion rates among offenders and broadened the range of those participating. "With the use of zoom, we've almost been able to fully replicate what we would deliver in a face-to-face session online in a group, by using the chat functions, having two facilitators, ‘breakout’ rooms, sending out manuals with FAQs and guides for delegates." But there was also a view that remote courses had made it “too easy” for offenders.
“We don’t know how effective it actually is”
The main problem which we identified through our ‘deep dive’ was uncertainty among police about the diversion schemes which are available if they issue an OOCD. Some officers said they hadn’t had enough training to handle cases, others complained they didn’t have a list of the programmes. It meant there were low referral numbers for some providers, creating a financial challenge for those who fund interventions themselves, such as the Victim Awareness course.
One officer told us they didn’t know whether a particular project worked or not: "We don't know how effective it actually is - we send people to it and get them to engage with it but we don't even know how it is.”
Another officer said they couldn’t respond to basic queries from offenders : "They ask me questions like 'oh how many sessions would it be?' 'what are the times I'll be offered?' and I don't know, I just say, ‘you have to wait until they make contact’."
At police stations, administration staff felt they had to take an additional advisory role because some officers were unclear about delivering OOCDs. "A lot of officers are coming to us for advice and we're like 'well, we can't offer you that kind of advice - we're administrators. Please go speak to your superiors' and they're like 'well, I am a superior and I don't know what I'm doing',” said one.
The Prince’s Trust, which helps prepare people for employment, gave us some really worrying information. The charity was given police funding for 100 places for 16 to 30 year olds. It was intended that some offenders issued with a conditional caution from March to September 2021 would be referred there for an assessment and then placed on an appropriate job skills scheme. In fact, the Trust received only one referral from police during the six months - an individual who failed to make contact or take part in the programme. An immediate review is needed to establish the reasons for such a low referral rate; a lack of knowledge about the availability of places on the programme is likely to be one factor. Thames Valley Police told us the project had been funded through a £75,000 grant from the Violence Reduction Unit and work would continue to “increase referrals” until April 2022 and extend the pilot scheme so more individuals could make use of it.
Pros and cons
We were told that, in general, those who have committed an offence were grateful to have an opportunity for it to be dealt with outside court, though some were sceptical and reluctant to take part in programmes. "I've had an individual break down and sort of go 'this is exactly what I need.' And I've had others say, 'I don't want to go into a room with a load of addicts',” was one comment.
Consulting victims and keeping them informed were also seen as vital to the success of OOCDs and diversion programmes. And officers saw clear benefits for first-time offenders, pointing out that for some it would be their first contact with police; good communication was paramount. "I think it's a really positive first engagement for people with the police... If we can have a positive public health educational approach on the first occasion, it should develop a better relationship for the future," remarked one officer.
Those schemes which involve one-to-one support, alongside group sessions, were believed to be more likely to engage offenders. Practitioners said they helped address an individual’s wider needs and signpost them to relevant services. For example, the drug support group Cranstoun carries out an initial 30-minute needs assessment before the main course.
One of our interviewees said: "It's quite amazing the change you get in people during the three hours," while another remarked, "there's very little engagement for the first ten minutes, but then people start to open up and then by the end of the course, everybody's discussing."
But, like the youth out-of-court diversion schemes, the adult regime is hampered by an absence of data as to whether it works in cutting reoffending. Providers agreed it would be useful to measure outcomes but said they didn’t have the resources to do it and cited difficulties in obtaining reoffending figures from police.
At present, they rely for evaluation purposes on course attendance rates, compliance levels and feedback from offenders who’ve taken part. Each provides an indicator of the scheme’s effectiveness, but no more than that. For instance, some people register for a drug course, do not attend the sessions but are still marked as having completed it, receiving a ‘pass mark’ grade or above. That is clearly not good practice.
On the other hand, those running the Victim Awareness course produce a quarterly report for each police force they work with to share findings and feedback from offenders.
Our key recommendations will be set out when we launch our final report, on December 1 2021, alongside the findings of a specially-commissioned opinion survey.
But our initial conclusions from the Thames Valley ‘deep dive’ are that greater consistency is needed, within force areas and across force boundaries. That will help prevent disproportionality in terms of who is criminalised and who isn’t, reduce the risk of unfairness due to a ‘postcode lottery’ and aid clarity about the use of OOCDs.
Frontline police who issue adult OOCDs and make referrals to rehabilitation programmes must have easy access to information about the services and the process that’s involved. That isn’t always the case at present.
For young people, police must prioritise investigations - the earlier an offender is dealt with, the better the prospect of steering them away from crime.
And, for both adults and under 18s, there must, as a matter of urgency, be an evaluation of the impact on reoffending rates of the various OOCDs and diversion programmes that are used.
Thank you to everyone at Thames Valley Police, in the area’s Violence Reduction Unit, in Youth Offending Teams across the region and those working for service providers who took the time and trouble to answer our questions and provide us with information. Particular thanks
go to Jason Kew, for helping to set up this phase of the project.
A note from Thames Valley Police
The Thames Valley Violence Reduction Unit, Thames Valley Police and local Youth Offending Teams have supported Crest Advisory to produce this initial report into the force's use of out-of-court disposals, particularly focusing on our innovative approach to tackling drug possession amongst youths.
We welcome the report's recognition of Thames Valley Police's ongoing commitment to innovation and the delivery of the National Police Chiefs’ Council charging and out-of-court disposal national strategy, which aims to divert those responsible for lower-level criminality away from the courts and custody to reduce reoffending and improve victim satisfaction.
The Thames Valley is a large and complex area, which requires a flexibility in approach in order to balance the use of resources to ensure youth cases are reviewed swiftly for the best outcomes.
This report evidences an increasing confidence amongst our staff to make the best use of out-of-court disposals to effectively resolve cases in the best interests of justice and with the full support of victims. As we embed the use of these approaches, we will recognise the need to increase the provision of training and operational guidance to officers, staff and when working with our local partners. We are actively working to provide this to our local teams.
The use of out-of-court disposals is kept under constant review by the senior leaders of Thames Valley Police.