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December 7, 2017

The mysterious decline of the out of court disposal

In the old days people would talk of the neighbourhood bobby giving a teenager a clip round the ear, when they got into trouble. Those days are thankfully over, but have we moved from action which was too informal and unregulated to a world where police no longer have the confidence to make the best use of their powers – to use out of court disposals or to take no formal action at all? Sometimes less is more – a quiet word of warning may be all that is needed to prevent a teenager committing another crime. In some more serious cases police should be able to give cautions, warnings and penalties. These measures formally deal with crime, but avoid clogging up the courts with unnecessary cases.

In recent years, the use of these out of court remedies has declined, much more so than have offences prosecuted in court. (The proportion of offenders in England and Wales who were cautioned has fallen from 30% to 13% over the last ten years meaning that people are being prosecuted rather than being given an out of court  disposal). This decline has been met with deafening silence, including from the police. It’s hard to pin down quite why out of court disposals have declined, but Rob Allen has made some suggestions in a new report for Transform Justice.

One of the key reasons for the decline in out of court disposals is a mostly “behind closed doors” campaign by judges and magistrates against them. They warned of a “cautions culture” in which out of court disposals were being misused by gung-ho, unregulated police. They contrasted these non-transparent deals between police and offender with the open court where justice was both done and seen to be done. Lawyers were also critical of out of court disposals suspecting that, in the absence of legal advice, people too often admitted to offences they may not have committed, and in so doing acquired a criminal record.

Out of court disposals were left with few champions and the police reacted to the political signals. The confusion surrounding government policy on out of court disposals (which has been in flux for three years) undoubtedly encouraged police to think twice about imposing them, as did a lack of funding for any interventions accompanying them.

One of most stinging criticisms of out of court disposals is that they do not command public confidence and, by implication, do not satisfy victims. In fact, the public seem no less confident in out of court disposals than in court processes, and victims are often more satisfied. A 2011 study found that 53 out of 64 victims reported being ‘satisfied or ‘extremely satisfied’ with the out of court disposal, compared to 14 out of 22 of those where the offender went to court. All the evidence points to well targeted out of court disposals being more effective than sentences in reducing reoffending, and they are a good deal cheaper. With local courts closing altogether, and with resources limited, it makes sense for us to champion out of court disposals, and to reverse their decline.