2 Criticism of out-of-court disposals
6. As the variety of OOCDs and their use has increased,
some of those working in the criminal justice system have raised
concerns about how such disposals are being deployed, in particular
in relation to:
· serious
offences, including violent and sexual offences, which ought to
have been prosecuted at court;
· reports
that some persistent offenders were repeatedly receiving OOCDs
when their conduct demonstrated a pattern of behaviour requiring
a more serious response; and
· the
apparent significant variation between criminal justice areas
in the number of OOCDs administered each year.
Appropriateness of decisions
7. Nacro's written evidence to the Committee emphasised
that in many cases OOCDs are an appropriate means of disposing
with first-time, less serious offences.[6]
However, Richard Monkhouse told us that the Magistrates' Association
had been concerned at the number of OOCDs that were being given
to repeat offenders and for serious offences. He said that this
had created a "perception that some serious offences were
being dealt with not in court, where a court can deliver the kinds
of sentences that are rehabilitative as well as punitive".[7]
He referred to OOCD cases "where there are identifiable victims,
violence involved and sexual behaviour involved",[8]
as well as indictment-only cases which, if they were brought to
trial, would have to be tried in the crown court because magistrates'
sentencing powers were not sufficient.[9]
8. In June 2011, a Criminal Justice Joint Inspection
found that in one-third of the cases sampled, the disposal selected
did not meet the standards set out in existing guidelines. This
was particularly the case for repeat offenders. Richard Monkhouse
confirmed that those figures tallied with the Magistrates' Association
figures at the time, and that scrutiny panels were suggesting
that between 20% and 30% of cases were inappropriately given OOCDs.[10]
9. Chief Constable Lynne Owens sought to clarify
the figures for serious offences, telling us that only 0.2% of
robberies were dealt with out-of-court, and only 2% of sexual
offences. In addition, she gave an example of a sexual offence
that had resulted in a caution. The victim of an indecent assault
did not want to go to court and did not want to support a prosecution.
However, the police were concerned that the offender, known to
the victim, who had no previous criminal history, had not properly
understood boundaries and felt that some action was necessary.
The offence was therefore dealt with through an OOCD. Chief Constable
Owens also gave an example of a 16-year-old boy in a sexual relationship
with a 15-year-old girl, who was reported to the police, but where
neither the victim, nor the offender, nor any of their parents,
was willing to support a prosecution to court. She suggested that
it might sometimes be in the best interests of the victim and
the offender to get them to work with social services to try to
prevent that offending. That offence is recorded as rape, because
no consent can be given when the victim is under the age of consent,
but in those circumstances it would be hard to argue that that
case should have resulted in prosecution.[11]
10. The issue of how crimes are disposed of is critical
in challenging certain types of offending behaviour. For example,
we were informed that magistrates are specially trained in domestic
violence issues, and have special domestic violence courts where
the offender's violent behaviour can be addressed. However, when
an OOCD is given in a case of domestic violence, the treatment
at the disposal of the magistrates cannot be given.[12]
Richard Monkhouse suggested that this kind of inappropriate use
could be due to a desire to deal with an incident quickly, rather
than the police thinking about the best way of addressing the
offender's behaviour in the longer term.[13]
11. Chief Constable Owens sought to clarify that
crimes recorded as "domestic abuse" covered a range
of relationships where offender and victim lived under the same
roof. She gave an example of a mother who might call the police
because her son, with a mental health difficulty, has assaulted
her in the heat of an argument. She argued that in this case the
mother wants help to deal with the son's mental health capacity
issues, and may not want to see her son put through the criminal
justice process, but the police have to record it as a crime.
She concluded that, in a case such as this, if the police were
confident that they could provide the mother with support from
another sector, then an OOCD would be an appropriate disposal.
In addition she said that if victims did not wish to take a case
of domestic abuse to court, then sometimes it was better to give
an OOCD than to do nothing, but she stressed, however, that these
occasions should be rare.[14]
12. For the type of offence where behaviour has to
be challenged—where effective punishment must include an
element of reform as well as retribution—a conditional caution
might be more appropriate. These are cautions that have an additional
element attached such as a letter of apology or a form of unpaid
work. However, we were told that in the last 12 months fewer than
1,000 conditional cautions were given, compared to almost 200,000
simple cautions. Richard Monkhouse thought that conditional cautions
were perceived as too bureaucratic because they were less easy
to set up and administer.[15]
13. Out-of-court disposals are not designed to
deal with serious offences, nor with persistent offenders. It
is alarming that they are used inappropriately in up to 30% of
cases, although there might be certain circumstances where issuing
an OOCD for a serious or repeat offence could be justified. One
of the attractions of OOCDs is that they save the police time
and administrative cost, allowing officers to spend more time
on the frontline, policing the community, but they must not be
used by police merely as a time-saving tool when the circumstances
of the offence suggest that prosecution is the right course of
action. This is especially the case when there is a pattern of
behaviour that needs to be addressed by the type of sentence that
only a court can administer.
Regional variations in use
14. In the Criminal Justice Joint Inspection report
it was found that the use of OOCDs varied considerably across
the 43 police force areas in England and Wales, ranging from 26%
to 49% of all offences brought to justice, as shown in Figure
2.Figure 2:
Variations in case disposals
Source: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/346639/criminal-justice-statistics-april-2013-to-march-2014.pdf
15. The authors of the report argued that some variation
was to be expected, due to local crime and offending patterns,
and the exercise of local discretion. Richard Monkhouse told us
that this variability was down to the fact that out-of-court disposals
were covered by guidance rather than statutory provisions and
that there were 43 chief constables in the country who would all
interpret the guidance in a slightly different way to suit their
own areas.[16] He added
that, in Cumbria something like 70% of all cases went to court,
whereas in Gloucestershire it was closer to 30%.[17]
16. Chief Constable Owens agreed that different forces
used OOCDs in different ways at different times, which she explained
was due to the way the six OOCDs had grown organically over time.
She argued that this complicated framework needed to be simplified,
which would bring more consistency in their use over time.[18]
17. The way in which OOCDs have originated, and
how local police forces have used them, has created a postcode
lottery. It is wrong that an offence committed in Cumbria should
go to court, while the same offence, if it was committed in Gloucestershire,
might be dealt with by a caution.
Recording and enforcement
18. Concerns have also been raised about the accuracy
and consistency of recording of OOCDs. In particular, the Criminal
Justice Joint Inspection report said that it was not always possible
to see on the Police National Computer a record of all OOCDs previously
issued to an individual, which may have contributed to inappropriate
decisions for repeat offenders.[19]
19. During our evidence session, we were informed
that some OOCDs were given out at the end of a process which began
with the initial recording of a serious offence. Richard Monkhouse
told us of
examples of rape … that you think how on
earth is that given an out-of-court disposal. When you look in
greater detail at each particular offence, you can understand
how that has been downgraded … but nevertheless that is not
what the public sees or the media portrays.[20]
He explained that through Magistrates' Association
research they had found that the OOCD was recorded against the
initial report, such as rape, even if the final sanction was not
given for rape.[21]
20. The way in which OOCDs are recorded by the
police does not help to instil public confidence in the system.
If the reporting of a serious crime, for example rape, has been
dismissed, but an OOCD has been used for a lesser crime, this
is what should be recorded, in a straightforward and clear manner.
This will assuage fears that this tool is being inappropriately
used for serious crime. Furthermore, if worries that OOCDs are
being used inappropriately to deal with repeat offenders are to
be allayed, then the obvious and essential starting point is for
all issued OOCDs to be recorded on the Police National Computer.
6 Nacro written evidence (OCD0004) Back
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