Police and Crime Commissioner’s
Themed Public Forum
Out of Court Disposals
Briefing Paper
What are out of court disposals?
An outofcourt disposal is a way of dealing with a crime or offence that does not require a prosecution in court. Out of court disposals are not new and have been used for many years in relation to minor traffic offences such as parking fines and minor speeding mattersthat if uncontested, could be dealt with without proceeding to court.
Cautions for crime have been used since 1984 when The Police and Criminal Evidence Act introduced cautions by police inspectors,
More recently out of court disposals have been rationalised by the Home Office and through legislation such as the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The Home Office states that: “Out-of-court disposals allow the police to deal quickly and proportionately with low-level, often first-time offending which does not merit prosecution at court. This allows the police to spend more time on frontline duties and tackling serious crime.”
In practice there are a number of different disposal options for a crime, offence or anti-social behaviour that if used prevents the need for the case to proceed to court. In exceptional circumstances an out of court disposal can be given for more serious offences if it is determined that it is not in the public interest to prosecute the offender.
The outofcourt disposals used by GMP are:
- Cannabis Warnings –only available for adults (18+)
- Penalty Notices for Disorder –only available for adults (18+)
- Youth Cautions - youths (10-17)
- Simple Cautions - adults (18+)
- Conditional Cautions - adults (18+) and youths (10-17).
- Restorative Justice
For any out of court disposal to be used there must be an admission of guilt by the offender. If there is any question surrounding the guilt of the offender or the offence is denied, and there is sufficient evidence to charge, the case should proceed to court.
Restorative Justice
Restorative Justice is a technique which can be used as a disposal in itself or as a complementary element of another outofcourt disposal. Restorative processes bring those harmed by crime or conflict, and those responsible for the harm, into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward.
Cannabis Warnings
These are only available for adults, as any young person found with cannabis indicates a safeguarding issue and therefore should not be dealt as an isolated incident and further enquiries should be made into the wellbeing of that young person.
These warnings can only be given for possession of a small amount of cannabis for personal use and only if the intended recipient has not previously been dealt with for a cannabis or drug related offence. The drugs are confiscated and the offender warned by the officer that any future cannabis use would lead to a caution or prosecution.
Penalty Notices for Disorder
A Penalty Notice for Disorder is a statutory disposal introduced by the Criminal Justice and Police Act 2001. At the time these were publicised in the media as an ‘on the spot fine’. In reality, the offender has 21 days to pay the fine or elect a court hearing if the issue of the notice is contested. Penalty offences are divided into lower and upper tier offences depending on seriousness and attract penalties of £60 and £90 respectively. These notices can be issued for a whole host of offences, but are mainly used for shoplifting where the value of the goods stolen is less than £100, damage under £300, licensing offences and public order offences. These are only available for adults.
Youth Cautions and Youth Conditional Cautions
Although cautions for young people have been available for some time, the inception of a youth conditional caution and tighter controls on the issue of cautions for young people were all introduced by the Legal Aid,Sentencing and Punishment of Offenders Act 2012. Under this new framework all out of court disposals can be used, whichever is the most appropriate for the offence. Previously punishmentfor young offenders could only increase in severity, regardless of the offence. For example, once a caution had been used the offender must then be charged, even if the second offence was more minor than the first. These changes addressed the anomaly between the adult and youth justice systems.
The Actalso introduced the need to notify the relevant Youth Offending Team of any caution issued and refer any young person to the Team for assessment before any conditional caution could be given out. The conditions attached to a youth conditional caution should be agreed with the Youth Offending Team and designed to reduce the likelihood of re-offending. Conditions should last no more than 3 months.
Simple Cautions and Adult Conditional Cautions
Like youth cautions,simple cautions for adults have been available for many years. Adult conditional cautions were introduced by the Criminal Justice Act 2003, the Legal Aid, Sentencing and Punishment of Offenders Act 2012brought in national guidance on use of adult conditional cautions. The conditions that can be attached to a conditional caution must have one or more of the following objectives:
Rehabilitation – conditions which help to modify the behaviour of the offender, serve to reduce the likelihood of re-offending or help to reintegrate the offender into society;
Reparation – conditions which serve to repair the damage done either directly or indirectly by the offender;
Punishment – financial penalty conditions which punish the offender for their unlawful conduct.
For all conditional cautions, if the conditions attached are not fulfilled or broken then the offer of a conditional caution is withdrawn and a decision to prosecute for the original offence is made.
Regulation of Out of Court Disposals
With so many different out of court disposals available, how do the police or other prosecuting authority decides which outcome to use? The Association of Chief Police Officers (ACPO) has produced two gravity scoring matrices for both adults and young offenders. The matrices list offences and give each offence a gravity score. The score can be increased by aggravating factors such as, committing a theft whilst carrying a knife, and reduced by mitigating factors such as a person being coerced into committing the offence. The matrices ensure consistency in decision making. Other factors that influence the decision are the criminal history of the offender, previous use of out of court disposals and the willingness of the offender to engage with the process.
An example- A 16 year old steals £3.20 worth of sweets. This could be dealt with using a restorative justice approach between the shop keeper and the young person.However, if this was the third time the person had been caught and they had already been given a conditional caution (one of the conditions being not to associate with a named group who steal regularly and they are caught with members of that group) then for the same value theft they may proceed to court. Consideration would also be given to charging the individual for the current offence and the one for which they originally received the conditional caution, as they had broken the conditions of that caution.
The Home Office have also recommended that Overview and Scrutiny Panels are established locally to review a sample of out of court disposals each month. It is recommended that the panel contains a magistrate to ensure consistency with court disposals.
Role of the Crown Prosecution Service
The Crown Prosecution Service is not routinely involved in out of court disposals as they are engaged in prosecution in court. Any serious offence, which would generally attract a significant custodial sentence on conviction, would normally be required to be dealt with at court. Any indictable only case (i.e. a case that can only be dealt with in a Crown Court) considered by the police as suitable for a conditional caution, must be referred to the Crown Prosecution Service. This is to maintain public confidence in the Criminal Justice System. However, if the police were considering issuing an out of court disposal for a serious offence, one triable at Crown Court only, they would have to consult with the Crown Prosecution Service and obtain their authority to use that outcome.
The Crown Prosecution Service has two considerations before authorising an out of court disposal:
- Is there a realistic prospect of conviction if the case proceeded to court?
(The Evidential Test) - Is it in the public interest to prosecute the offender?
(The Public Interest Test).
The prosecutor also has to record the exceptional circumstances surrounding the decision to use an out of court disposal for a serious offence.
Use of out of court disposals in Greater Manchester
For the financial year ending 31stMarch 2014, Greater Manchester Police used out of court disposals to deal withjust under 10% of all recorded crime.
The total number of out of court disposals used during 2013-14 was 17,414. In terms of offence types, the main contributors were:
- 3,638 (21%) for shoplifting
- 3,475 (20%) for possession of drugs
- 2,650 (15%) for offences of violence without injury
The most up to date figures published by the Ministry of Justice, covering the 12 month period to 31st December 2013, illustrated the following in relation to the use of out of court disposals within Greater Manchester.
Of the 52.4 thousand offences brought to justice:
- the vast majority (76%) resulted in a conviction
- 12.4% resulted in a caution
- 4.8% involved the issue of a cannabis warning
- 2.9% were dealt with using a penalty notice for disorder