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What would Part 6 of the Bill do?

Part 6 of the Police, Crime, Sentencing and Courts Bill (the Bill) would replace most existing out of court disposals (OOCDs) with two new ones: the diversionary caution and the community caution. This would formalise and amend the “two-tier framework” (see below) for out of court disposals. At present around a third of English and Welsh police forces operate a two-tier framework for OOCDs by using two of the six available OOCDs. Conservative governments have been supportive of police use of the two-tier framework. The current Conservative Government committed to introducing legislation to formalise it in the White Paper A Smarter Approach to Sentencing (published September 2020).

What is the current system for out of court disposals?

Out of court disposals (OOCDs) are used in cases where a charge or prosecution is not in the public interest. Disposing of a case out of court is supposed to provide a less costly and speedier justice outcome.

Any criminal offence can qualify for disposal out of court. However, OOCDs can only be used when offenders accept them. In most cases offenders must admit guilt to accept an OOCD. The police use ‘gravity matrixes’ to decide on a case by case basis whether to use an OOCD. A national adult gravity matrix is published by the National Police Chiefs Council (NPCC) but some forces use local versions. Using their matrix, police officers give cases they have solved a score based on the seriousness of the offence and the presence of mitigating/ aggravating factors. The lower the score assigned to an offence the more likely it is to be disposed of out of court.

At present, there are four categories of adult out of court disposals (OOCDs):

  • Cautions. Formal warning for a criminal offence. There are two types of adult cautions:
    • Conditional cautions require offenders to meet conditions designed to rehabilitate, provide reparation and punish.
    • Simple cautions are purely formal warnings.
  • Community Resolutions (CRs). A contract between the police and accused persons in which the accused agrees to undertake specified activities designed to rehabilitate, provide reparation or punish.
  • Penalty Notices for Disorder (PNDs)/ Fixed Penalty Notices (FPNs). A process by which accused persons can discharge their liability for a listed offence by paying a fine. In some cases accused persons are offered the chance to attend an educational course in place of a fine (these are known as PND-Es).
  • Cannabis/khat warnings. A warning for possessing cannabis for personal use.

Police officers choose which OOCD to use depending on the circumstances of the offence. Some offences will not qualify for disposal by certain OOCDs. For example, only “penalty offences” can be disposed of by PND. Sometimes, force level policies determine which OOCD must be used for certain offences. For example, in some forces officers are told to issue cannabis warnings when they catch someone with a small amount of cannabis consistent with personal who has no previous drugs offences.

In 2019, approximately 192,000 out of court disposals were issued in England and Wales. This was the lowest number in a year since 1984 (see the table in the Appendix for annual figures since 1970) and around 28,000 fewer than in 2018. Out of court disposals were issued in around 14% of proven offences in 2019.

In 2019, the most common category of out of court disposal was community resolutions (105,000 disposals), followed by cautions (47,000), PNDs (19,800) and cannabis/khat warnings (19,500).

What is the two-tier framework?

The two-tier framework is a system by which forces pledge not to use simple cautions, PNDs and cannabis warnings for adult cases. Instead officers only use conditional cautions and community resolutions when disposing of adult cases out of court.

The two-tier framework for OOCDs

Conditional cautions

A statutory disposal, currently legislated for in Part 3 of the Criminal Justice Act 2003 (as amended). Conditional cautions are a formal warning or a criminal offence which requires an offender to meet certain conditions. The Ministry of Justice maintains statutory guidance on their use in the form of a Code of Practice for adult conditional cautions. The Crown Prosecution Service has also published guidance to police officers on issuing conditional cautions.

Offences

Any criminal offence can be disposed of by conditional caution. However, in accordance with guidance, they are rarely used to dispose of cases involving domestic violence or hate crime. Statutory guidance says issuing a conditional caution is “unlikely to be appropriate where the offence forms part of a pattern of offending”

Evidential test

The police should apply the principles of the Full Code Test when issuing conditional cautions. This means that they should only be issued when there is enough evidence to suggest the accused would be convicted at trial.

Criminal record

Conditional cautions issued to adults for certain serious offences will always be disclosed in a criminal record check. Conditional cautions for all other offences will no longer appear on a criminal record check six years after issue.

Conditions

Any condition that facilitates an offender’s rehabilitation or ensures they make reparation for their offence can be attached assuming it is “appropriate, proportionate and achievable”. At present the maximum financial penalty is £150 but the Secretary of State could raise fine levels up to £250. A condition that requires the offender to be at a certain place at a certain time (like rehabilitation classes or community service) can only require an offender attend 20 hours in total.

Victims are consulted on the condition attached to the offender’s caution. A victim’s chosen condition must be attached where reasonable.

Consequence on breach

Those who fail to comply with their conditions can be arrested and may face prosecution for the offence they were cautioned with.

Community resolutions

A non-statutory disposal. Community resolutions are voluntarily contracts between the police and accused persons in which the accused agrees to undertake specified activities designed to rehabilitate, provide reparation or punish. Some guidance on their use is included in statutory guidance for frontline professionals on anti-social behaviour powers.

Offences

Any criminal offence. Community resolutions can also be used in cases involving anti-social behaviour that do not meet the criminal threshold. Community resolutions are typically used for less serious offences.

Evidential test

When there is a “reasonable suspicion” an individual is responsible for a crime or anti-social behaviour.

Criminal record

May be disclosed as part of an enhanced criminal records check.

Conditions

Conditions chosen, in collaboration with the victim, from a local Community Remedy Document. Community Remedy Documents are published by the local Police and Crime Commissioner (or the Mayor in London and Manchester).

Consequence on breach

No consequence on breach.

Fourteen police forces have adopted the two-tier framework (a third of all forces in England & Wales). The National Police Chiefs Council  has endorsed the two-tier framework through its strategy for charging and out of court disposals. Its national adult gravity matrix is based on the framework. Offences which score ‘one’ on the matrix are likely to be disposed of by community resolution and offences which score ‘two’ are likely to be disposed by conditional caution. Offences which score above two are likely to be charged. This makes conditional cautions the “upper-tier” disposal and community resolutions the “lower-tier” disposal.

The use of the framework aligns with Conservative Party policy. The Conservative Party has long favoured OOCDs which attach conditions and argued against the use of OOCDs which are purely warnings. Successive Conservative governments have argued that OOCDs which set conditions promote offender rehabilitation, victim reparation and ensure offenders are appropriately punished.

How would the new OOCDs compare to the existing two-tier framework?

The Bill would introduce two new types of cautions, the diversionary caution and the community caution, both of which are comparable to the existing conditional caution. It would require officers to use one of the two new cautions when disposing of criminal cases out of court. It would also repeal existing legislation which regulates the current OOCDs. This would result in all police forces using the same system for disposing of cases out of court, bringing national consistency to a presently fragmented system.

The proposed OOCDs

Diversionary cautions

Offences

Could be used for any offence. However, could only be used for indictable-only offences (those that must be tried in a Crown Court) in “exceptional circumstances” and with consent of the Director of Public Prosecutions (DPP).

Regulations would provide for rules about their use to dispose of some cases involving repeat offenders.

Evidential test

Same as with present conditional cautions. The police should apply the principles of the Full Code Test. This means that diversionary cautions should only be issued when there is enough evidence to suggest the accused would be convicted at trial.

Criminal record

Conditional cautions issued to adults for certain serious offences will always be disclosed in a criminal record check. Conditional cautions for all other offences will no longer appear on a criminal record check six years after issue.

Conditions

In consultation with the victim, officers would be able to choose any condition(s) from the following types:

·            Rehabilitative and reparative conditions: These include restrictive conditions (i.e. those that prevent offenders from going to certain places), attendance conditions (i.e. alcohol misuse support groups) and unpaid work conditions (i.e. community service). Attendance and unpaid work conditions can only require an offender attend up to 20 hours.

·            Financial penalty conditions: Regulations would set rules for deciding the value of the fine. There is no maximum fine value in the Bill.

·            Foreign offenders conditions: Conditions can be issued to foreign offenders which require them to return to their home country.

Consequence on breach

Those who fail to comply with their conditions can be arrested and may face prosecution for the offence they were cautioned for.

Community cautions

Offences

Will not be used in cases involving indictable-only, certain either-way offences (offences triable in the magistrates’ court or Crown Court) and certain summary offences (offences triable only in the magistrates’ court). Regulations would provide a list of the either-way and summary offences that would not qualify for disposal by community caution.

Regulations would provide for rules about their use to dispose of some cases involving repeat offenders.

Evidential test

Same as with present conditional cautions. The police should apply the principles of the Full Code Test. This means that community cautions should only be issued when there is enough evidence to suggest the accused would be convicted at trial.

Criminal record

Community cautions issued to adults for certain serious offences will always be disclosed in a criminal record check. Community cautions for all other offences will no longer appear on a criminal record check six years after issue.

Conditions

In consultation with the victim officers would be able to choose any of the conditions from the following types:

·            Rehabilitative and reparative conditions: These include restrictive conditions (i.e. those that prevent offenders from going to certain places), attendance conditions (i.e. alcohol misuse support groups) and unpaid work conditions (i.e. community service). Attendance and unpaid work conditions can only require an offender to attend up to 10 hours.

·            Financial penalty conditions: Regulations would set rules for deciding the value of the fine. There is no maximum fine value in the Bill.

Consequence on breach

Failure to meet a community caution condition (including a financial penalty condition) could result in a police-issued fine. The payment of this fine is enforced by a Magistrate in accordance with rules set out in the Bill.

What impact might the new system have?

The proposed system is very likely to be more costly. The Government estimates the policy will cost a total of £109.19 million over ten years. It thinks the criminal justice system will incur extra operational costs of around £15.58 million per year. It also thinks the system will cost the police around £13.70 million to implement (over two years).   

These estimates are based on data from a pilot of the current two-tier framework carried out in 2014. The actual costs are likely to be higher because some costly features of the proposed system, like proposed restrictions on the use of OOCDs for certain offences, were not present during the pilot.

The Government hopes the proposed system will help reduce reoffending. Available data does not suggest short-term reoffending rates are likely to go down. The evaluation of the 2014 pilot of the two-tier framework found no statistically significant difference between the short-term re-offending rates of OOCD offenders in two-tier framework areas to those in comparable areas not using the framework. However, this data was based on a small sample and did not analyse the effect of different conditions.

The Government also hopes the new system will improve victim satisfaction because more victims will be involved in the OOCD process. It is true that more victims will be involved in the OOCD process under the new system, but this is unlikely to have a big impact on victim satisfaction rates. This is because the victim satisfaction rate for OOCD cases is already good. In 2019/20 84% of victims whose offender was issued a caution said they were satisfied with the police, a similar rate to victims whose offenders were charged (83%).


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