Authors: Danny Shaw, Senior Associate | James Stott, Senior Analyst | Ellen Kirk, Analyst | Delene Adams, Intern
Wednesday 19 January 2022
FINAL REPORT (PDF): Making the criminal justice system work better: how to improve out-of-court disposals and diversion schemes
POLLING (PDF): Reducing flows into the criminal justice system: polling on out-of-court disposals and diversion
Watch our webinar held to mark the report's launch, which included a presentation of the key findings from the research, a discussion with subject matter experts and a live Q&A session.
This report examines the effectiveness of out-of-court disposals and diversion programmes and considers whether there is scope to increase their use. Our research included analysis of the latest evidence and trends, an in-depth study in the Thames Valley Police force area and a nationally representative survey. We concluded that there is a strong case to be made for the expansion of out-of-court sanctions - building on pockets of good practice across England and Wales, the measured work of Youth Offending Teams and an acknowledgement by the public that it is a viable approach to deal with offending by people who are vulnerable.
Last year, we published a report on the impact of Covid-19 on the criminal justice system. It found that fundamental changes are required to improve how offenders are dealt with at the ‘front end’ of the system. This project, funded by the Hadley Trust, explored what those changes might be in relation to the use of out-of-court disposals and diversion programmes.
Out-of-court disposals are a valuable component of the criminal justice system. Without them, there would be no way for low-level and first-time offending to be dealt with swiftly and the courts would be even more clogged with cases than they are at the moment. There is clear support for the use of out-of-court disposals and diversion programmes among key stakeholders in the criminal justice system and, it appears from our survey, qualified backing from the public. Crest also believes there are powerful arguments for expanding their use - but there is much work to do before that can happen.
Principles for change
The use of out-of-court disposals and diversion programmes must:
Be data driven and evidenced-based
Even though out-of-court sanctions have been around for some 200 years there is a paucity of information about how they operate and a lack of data about whether they are effective. Our trawl through a mass of reports and studies revealed that there is not enough robust evidence to demonstrate the impact on reoffending rates, victim satisfaction and costs of the most widely-used disposals in England and Wales. There is an urgent need for that to be remedied. If police are to have confidence in using out-of-court disposals, if Youth Offending Teams and probation staff are to have confidence in sending offenders onto diversion schemes, and if the public are to have confidence that they are an appropriate alternative to prosecution then their use must be rigorously and continually monitored so that their effectiveness can be evaluated.
Some tailored diversion schemes linked to out-of-court disposals, such as Checkpoint in Durham, have been shown to work well, and it is encouraging to see that these successful initiatives are serving as models for adoption in other areas. But there is a danger that when small-scale interventions are expanded their quality is diluted. We urge providers and police to track the delivery and outcomes of such interventions with great care using independent analysts and researchers.
Have clear oversight and standards
The public also demand consistency. It is right that there is flexibility for Police and Crime Commissioners (PCCs) and Chief Constables to innovate and respond to localised patterns of crime, but when it comes to out-of-court disposals and diversion schemes they ought to do so within a clear boundary of legislation, standards and guidance, set by the Home Office and Ministry of Justice (MoJ). Our research and interviews uncovered confusion around the issue of ‘admitting the offence’. In fact, it was recently brought to our attention that the Crown Prosecution Service and College of Policing guidance on conditional cautions contradicts the correct legal position, as outlined in the MoJ code of practice and by the Sentencing Council, that an offender must admit the offence for a conditional caution to be issued.
Be tailored to the offender
Out-of-court disposals and diversion represent key points of intervention for the police. Although it is important to respond proportionately to an offence, rehabilitation should be tailored as far as possible to the individual, especially people who are vulnerable. Our survey suggests the public are broadly supportive of this approach. The assessment process in the youth justice system, as well as the success of deferred prosecution schemes and programmes for female offenders, are good examples of how a bespoke response can be designed by identifying an individual’s specific needs. However, it requires significant up-front investment.
Be open, transparent and accountable
The findings from Crest’s survey, which suggest that most people don’t really know what out-of-court disposals are, bolsters the case for improving the information available to the public - especially on police websites. We were shocked about how little detail was made available by most forces; again, that is an issue which needs immediate attention. If PCCs, Mayors with policing powers and Chief Constables opt to use out-of-court disposals and diversion schemes - and wish to expand their use - they must ensure people in their communities know what they entail and are given a say in how they are managed.
Legislative proposals offer an opportunity for the criminal justice system
The advantages of a timely out-of-court disposal or a meaningful diversion programme cannot be underestimated - for offenders, victims and the wider, congested criminal justice system. That is why it is so important that the new ‘two-tier’ arrangements, which are expected to be enshrined in legislation this year, are accompanied by the clearest possible guidance for police; a commitment to involve victims at every step; and an engagement and communications strategy to raise awareness and support among communities. The new system represents the chance for a new beginning for out-of-court disposals. Government ministers, PCCs and Chief Constables must grab it with both hands.