Alternatives to prosecution
Crest Advisory has just (19 January 2022) published a major new report on the front-end of the criminal justice system, specifically Out-of-Court Disposals (OOCDs) and diversion schemes. The research included analysis of the latest evidence and trends across England and Wales, an in-depth study in the Thames Valley Police force area and a nationally representative survey.
The context
The Crest report starts by setting the context in which the research took place:
- The proportion of crimes which lead to an outcome such as a charge or caution has been in long-term decline. The charge rate has fallen in the past seven years to 8% of offences recorded by police; the rate of out-of-court disposals has also dropped – to 4% of offences. At the same time, the percentage of cases in which victims have withdrawn support for police action or a prosecution has trebled.
- The majority of out-of-court disposals used are community resolutions and are used mainly for drugs offences – but in over a-quarter of cases they are issued for crimes of ‘violence against the person’. The majority of disposals are given within a month of the offence; suspects and victims face a much longer wait if their case goes to court.
- During the COVID-19 pandemic, court hearings – jury trials in particular – were severely curtailed adding to case backlogs and delays. Evidence from police suggests out-of-court disposals were used more – in some areas to ease pressures on the criminal justice system and the courts. Data suggest community resolutions in particular increased during the pandemic.
- Given the problems caused by the pandemic and a projected increase in demand on the courts, a key question is whether pressures on the criminal justice system can be relieved by making better use of out-of-court disposals and diversion schemes.
Trends
The research found that it is hard to assess the effectiveness of different OOCDs and diversion schemes on reoffending – meaningful comparisons with re-offending rates of court-imposed sanctions are not possible because the characteristics of the pools of offenders are different.
There is evidence that out-of-court disposals which involve diversion programmes are successful in cutting reoffending, reducing harm and keeping costs down. Examples include ‘Checkpoint’ (where a Randomised Controlled Trial claimed a drop in reoffending of 10.3%) and ‘Operation Turning Point’.
However, Crest found that schemes like this, under which cautions or prosecutions are deferred or suspended, are not available in most police force areas.
Victims of crime appear to be more satisfied when an offender receives an out-of-court disposal and takes part in a diversion scheme than when there is a prosecution. Keeping victims informed about the progress of cases and explaining what is happening are crucial.
Criminal justice stakeholders generally supported the use of out-of-court disposals but they had concerns about the evidence base and called for more rigour in evaluating outcomes for offenders, victims, the criminal justice system and the public.
Lack of consistency, transparency & accountability
The Crest research found a wide range of different approaches across the country with often minimal publicly available information about what OOCDs and diversion schemes were in place locally. Key findings included:
- The use of out-of-court disposals varies considerably, with the proportion of disposals issued four times greater in some police force areas than in others. Innovative approaches which tackle specific problems affecting a local area should be encouraged but wide disparities between neighbouring forces are hard to explain.
- Out-of-court disposals are issued for a wide spectrum of crimes, from drugs possession to robbery and sexual offences, raising concerns about whether their use is always appropriate and if it is being monitored properly.
- There is a lack of consensus among stakeholders as to whether certain offences, such as hate crimes and domestic abuse, should be ‘off limits’ to out-of-court disposals.
- There is inconsistency and confusion about whether suspects must admit guilt or take responsibility for the crime they’re suspected of in order to qualify for some types of out-of-court disposals and diversion schemes.
Tailored diversion
One of the key conclusions of the report is that OOCDs which involve diversion schemes tailored to the needs of offenders present real opportunities for tackling reoffending and promoting rehabilitation and should be expanded. Crest highlights existing practice by Youth Offending Teams as a possible model for work with adults.
Recommendations
The report concludes with five principles for expanding the use of OOCDs. These are:
A data driven approach. Local and national data should be gathered and published on the use of out-of-court disposals and diversion programmes in order to analyse compliance, reoffending rates, victim satisfaction levels and financial costs. Statistics should be compiled on each type of intervention to ensure weaknesses can be identified and rectified.
Evidence-based practice. Any change in the use of out-of-court disposals and diversions should be based on evidence of their impact on reoffending, future contact with the criminal justice system and improved life outcomes, particularly in comparison with offenders who are sentenced by the courts.
Oversight and standards. Crest calls for greater oversight of the use of out-of-court disposals and diversion schemes to ensure greater consistency within and across police forces and Youth Offending Teams.
Tailored approach. Crest concludes that measures to keep people out of the criminal justice system and steer them away from crime work best when they are targeted at the specific problems that underpin their offending behaviour.
Open, transparent and accountable. Crest calls for police forces to be more open, transparent and accountable in their use of out-of-court disposals and diversion schemes; arguing that extending the use of diversion will succeed only if the public understand what they entail and have confidence in them.
