Out of Court Disposals: Setting out the two-tier framework

Cerys Gibson

The recent Police, Crime, Sentencing and Courts Bill 2021 (the Bill) has had much media, academic and political attention since its first reading on the 9th March 2021. This blog focuses on Part 6 of the Bill, which restructures the system of adult out-of-court disposals in England and Wales.

There are currently six types of adult out-of-court disposals, each with its own Code of Practice or guidance. These are: the community resolution, cannabis/khat warnings, Penalty Notices for Disorder, simple cautions and conditional cautions. However, in 2011, the Criminal Justice Joint Inspection (CJJI) (Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate) criticised the ‘piecemeal’ approach to the current system of out-of-court disposals. After further scrutiny by the Home Affairs Committee in 2015, the Ministry of Justice, College of Policing and National Police Chiefs’ Council (NPCC) developed a new two-tier system of out-of-court disposals to replace the current model. This new two-tier approach was piloted in 2015-16 in West Yorkshire, Staffordshire and Leicestershire. It simplified the current system of six out-of-court disposals into a two-tier model consisting of:

  • Community Resolution– aimed at first-time offenders, to resolve minor offences through an agreement with the offender and, where appropriate, the involvement of the victim. Would not appear on criminal record but may be disclosed as part of an enhanced DBS check. Generally, no action can be taken if the conditions of a community resolution are not complied with.
  • Conditional Caution– designed to tackle more serious offending and more extensive offending history than the community resolution in diverting offenders to a rehabilitative, reparative or punitive condition. Conditional cautions will generally be disclosed on both standard and enhanced DBS certificates for 6 years after it was given, where the individual was aged 18 or over at the time of the caution.

This new structure represented a seismic change to the system of out-of-court disposals, removing the simple caution, cannabis/ khat warnings and Penalty Notices for Disorder. Instead, the system of out-of-court disposals would include only two disposals, both of which encourage the police to attach rehabilitative and/or reparative conditions and involve the victim in decision-making. In its strategy on out-of-court disposals, the NPCC emphasised that this streamlined  system of out-of-court disposals aims to provide ‘rehabilitative opportunities to offenders to turn their life around at the earliest opportunity’ and result in quick and efficient resolution of cases without requiring the cost of court time.

The evaluation of the two-tier pilot found no statistically significant difference in the 12-month re-offending rates for those who had received an out-of-court disposal in the pilot areas compared to those in similar police force areas and no statistically significant difference in when offenders reoffended or the types of offences they went onto commit. Yet there is some evidence that early intervention and diversion can be highly effective in preventing reoffending and increasing victim satisfaction. Individual police forces have launched initiatives such as Checkpoint in Durham Constabulary, Turning Point in West Midlands Police and CARA (Conditional Cautioning and Relationship Abuse) in Hampshire Police, all of which contribute to this growing body of evidence and demonstrate the potential benefits of adopting a condition-focused approach.

For the last few years, the NPCC gradually implemented this new approach, encouraging police forces to adopt it when it was operationally viable for them to do so, without setting rigid time frames on this process. As a result, some forces implemented the new system while others did not. In September 2020, the government published the White Paper: ‘A Smarter Approach to Sentencing’. The Ministry of Justice noted in its Impact Assessment in April 2020 that only 11 police forces had voluntarily adopted the two-tier system of out-of-court disposals. In this Impact Assessment, the Ministry of Justice identified that this partial change resulted in a lack of consistency between forces and a complex system for the public to understand. The government therefore announced it would intervene by legislating for this two-tier system of out-of-court disposals to ensure that all forces adopted this new approach.

This brings us to the present day and the Police, Crime, Sentencing and Courts Bill: Part 6, which sets out the government’s promised legislation for a two-tier system of out-of-court disposals. However, the Bill will replace the previously envisaged community resolution and conditional caution with what is in effect two types of conditional cautions:

  • Diversionary caution – designed to replace the conditional caution, with two key differences regarding the offences for which they can be administered and the upper limit of any fines administered. Diversionary cautions can only be used for indicatable offences in ‘exceptional circumstances’ and with the consent of the Director of Public Prosecutions (clause 77) and the Secretary of State can make regulations prohibiting their use for offenders who have already been cautioned (clause 95). The upper limit of any fines will be set in secondary legislation rather than primary legislation, meaning that Parliamentarians could only reject, rather than amend, proposals regarding the value of these fines (clause 80).
  • Community caution – designed to replace the community resolution (except for antisocial behaviour, where community resolutions will remain a non-statutory option), it is actually more similar to the conditional caution. The most important difference between the community caution and community resolution is that the community caution is formally administered by the police and will appear on an offender’s criminal record, and offenders will be required to comply with the conditions attached. This can include paying a fine as a financial condition or completing unpaid work. Failure to comply with conditions could result in a police issued fine.

The two-tier system of out-of-court disposals is very likely to become mandatory across England and Wales, with some exceptions to allow for initiatives such as deferred prosecutions.

My research into the use of conditional cautions in three police forces in England and Wales demonstrates that this implementation requires careful planning. My research evidenced the extent of work required to prepare the force and local services for the introduction of a two-tier system, and encourage frontline officers to buy-in to the new approach and provide training. Forces needed to liaise with local service providers to design interventions to which offenders can usefully be diverted and build on existing and new partnerships to try to provide these services freely so they are available to all. Forces also needed to create capacity to support this rollout, either in creating central teams to focus on administering conditional cautions, or administrative teams to monitor conditions on behalf of officers.

The sections of the Bill relating to the changes to out-of-court disposals will come into force once the Secretary of State appoint regulations made by statutory instruments. It is important that forces are given time to implement these changes to ensure well-considered, appropriate conditions are mapped out and the disposals are used consistency within the force.

This seismic change to the system of out-of-court disposals, making further amendments to the previously-planned two-tier system, may bring some benefits in reducing reoffending, improving victim satisfaction and ensuring that all police forces have a similar model of out-of-court disposals. However, the changes sit at the crossroads of a number of issues, with three important concerns summarised below:

  • Consistency of out-of-court disposals. The eventual legislation for the two-tier system will mean that offenders in different police forces should receive similar out-of-court disposals. This will result in a more consistent approach than the variation inherent in the partial voluntary adoption of the previous two-tier model. However, the offenders’ actual experience of the disposals, in terms of what they are required to do, and whether they will need to pay for it, will vary between forces.

When conducting my research into the use of conditional cautions in three police forces in England and Wales, I found there was a wide variation in the conditions used, as forces relied on their relationship with their PCCs and local service-providers to map out appropriate conditions.

As more forces adopt the new two-tier model, data will be needed on the conditions used in each force and the costs involved to ensure they are accessible for all, evidence-led and proportionate. 

  • Proportionality. The new diversionary caution may be used for any offence, with exceptions for indictable-only offences and with regulations providing rules about their use for repeat offenders. The new community caution will not be used in indicatable-only, certain either-way and certain summary offences, to be determined by regulations. There will also be regulations about their use for repeat offenders. It will therefore be important to analyse these regulations to determine whether offenders receive a disposal, and conditions, which are proportionate to the offence they committed.
  • Up-tariffing by design. The new two-tier system, in streamlining out-of-court disposals, will remove police options in how they may close cases. Officers will no longer be able to choose an informal disposal, such as a community resolution, to dispose of very low-level crime. How this change will be communicated to the public, including employers who may potentially hire the offender, and how this will be mitigated by the government’s criminal record reform, included within the same Bill, remains to be seen.

It will be crucial that, as the Bill progresses through its relevant stages, the Ministry of Justice, NPCC and police forces work together to bring about and manage this seismic change to the landscape of out-of-court disposals, mindful of unintended consequences and communicating changes transparently to the public.

Cerys Gibson recently completed her PhD at the University of Nottingham. Her project was funded by the ESRC. Email: cerys.gibson1@nottingham.ac.uk; Twitter: @GibsonCerys; Website: https://www.nottingham.ac.uk/Law/people/cerys.gibson1

One thought on “Out of Court Disposals: Setting out the two-tier framework

  1. Pingback: Police, Crime, Sentencing and Courts Bill 2021 – factsheets – Bexley Borough Neighbourhood Watch Association

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