How should we reform out of court disposals?

Work with Offenders looks at a new briefing from the Centre for Justice Innovation

The recent White Paper on sentencing reform includes a pledge to simplify Out of Court Disposals (OOCDs) with the ambition of ensuring that “very low-level offenders can be dealt with swiftly and proportionately, without coming before a court”. We have known for a long time that keeping low-level offenders out of the formal criminal justice system is an effective way of preventing further reoffending.

The government plans to simplify the OOCD framework by reducing the number of disposals from six to two. The proposed new system will include an ‘upper tier’ disposal (akin to the current conditional caution) and a ‘lower tier’ disposal (akin to the current community resolution). This simplification was proposed six years ago and formally encouraged by the National Police Chiefs’ Council three years ago. However, while some police forces have moved fully to this two-tier model, others still retain the old system, with the unpalatable consequence of low level offenders encountering different justice systems depending on where they live.

The briefing

A new briefing from the Centre for Justice Innovation applauds this simplification and makes recommendations for how it can be most effective. Their five main points are:

  1. That the lower-tier disposal outlined by the Government becomes the major vehicle into which all of the existing informal diversion cases and all of the existing formal out of court disposals, save those who currently already receive a conditional caution, transfer to. The Centre argue strongly that when this lower OOCD is used, it should not show up on a criminal records check.
  2. That police forces should be allowed discretion on their decision-making, citing as an example of best practice Durham Police’s multi-agency Checkpoint programme which provides an alternative to prosecution for people have committed a low or moderate level offence.
  3. Safeguard against “up-tariffing”. One of the reasons effective pre-court diversion is likely to produce better outcomes than more formal sanctions is that it de-escalates and moves people away from the criminal justice system. The Centre warns that decision-makers often believe that a more intensive and/or more punitive sanction will be more effective and that, unless safeguards are put in place, the upper tier of the new system will be overused.
  4. The reform of OOCDs should be an opportunity to prioritise victim-focused work. Here the Centre quotes evidence from Operation Turning Point, a diversion scheme in the West Midlands in which offenders agree to a contract with the police in exchange for a No Further Action disposal if they comply. An evaluation found higher levels of victim satisfaction with pre-court diversion participants (contrasted with victim satisfaction found within the court-bound control group). The trial reported that increased victim satisfaction rested on police clearly explaining the process and why Turning Point might better prevent reoffending.
  5. Modify the proposed criminal records reforms to strengthen OOCD reforms. The successful approach of “de-escalating” and diverting low-level offenders away from the criminal justice system could be undermined if the lower tier sanctions show up in criminal record checks and prevents people from finding jobs.

Conclusion

The Centre for Justice Innovation argues that implementing this new framework will take considerable investment in time, guidance, training and resources to make it successful and that the new system must be complied with in spirit and not just via a tick box fashion. The charity also advises that there should be national coordination between diversion scheme to ensure that the current postcode lottery is not replicated under the new system.

OOCDs are a proven response to low-level offending, provided that they scale down people’s contact with the criminal justice system. We now have considerable evidence from a number of successful diversion schemes around the country to ensure that the new system is as effective as possible.