Changes are coming to how the police deal with lower level crimes. Come 2023, the current menu of six “out of court disposal” options will move to three – community resolutions (for lower level crimes), and two types of caution. The big change is that the police must attach conditions to the new cautions. These conditions would require the person to engage in some way with the outcome, for example by attending a course to address the underlying causes of behaviour, or paying compensation to the victim. This emphasis on rehabilitation and reparation has great potential. How can we avoid the changes doing more harm than good?

The broad strokes of the government’s new framework are set out in the Police, Crime, Sentencing and Courts bill, but there are many nuts and bolts to be thrashed out over the next year. A lot can be learned from those forces who already offer cautions with conditions attached (conditional cautions) and from a fascinating piece of PhD research by Cerys Gibson into how police decision making around conditional cautions is working in practice.

Cautions with conditions could help reverse the decade-long decline in use of diversion and out of court disposals. Many police officers like the idea of being able to offer a rehabilitative response to people who commit a crime; something tailored and constructive to do rather than send them to court where they will most likely receive a fine.

And having conditional cautions available does seem to lead to cases being diverted from court: Cerys Gibson found examples of officers challenging their previous assumptions about whether a case should be charged, and giving a conditional caution instead. In one force, a man had a hammer in a café, causing alarm: “PC Adely reported that, although the offender had carried an offensive weapon, he was suffering from mental health issues and had had a recent relapse. PC Adely therefore decided it would be more beneficial to put the offender in immediate contact with his mental health team through a conditional caution, rather than charge him.”

But Cerys’ research also highlights a potential problem. Police officers found the prospect of rehabilitation offered by conditional cautions so appealing that they were using them for lower-level offences too. This was instead of using lighter touch options such as a community resolution. This is a non-enforceable agreement, with no criminal record attached, in which the person who committed the crime agrees to make amends in some way, for example by clearing up the damage done. Cerys Gibson found this “up-tariffing” happening for several reasons:

• Officers may up-tariff cases so they can use the threat of prosecution to enforce compliance with conditions. In one example, a man found with Class A drugs could have been dealt with via a community resolution, but because the officer wanted to deter them from future recreational drug use, the officer gave them a conditional caution to “force” rehabilitation via attendance at the drugs programme.
• A perception by officers that a response with no conditions will not be effective. One officer described a case involving neglect of a child by a woman who had been in trouble with the police in the past: “She [the offender] was eligible for just a simple caution. But I didn’t choose that option because then it would have just been into the police station, sign the form and that would have been it.” Instead, the officer gave a conditional caution to “ensure the offender had support in place for the future”. Unlike with a simple caution, if you fail to comply with a conditional caution you can be prosecuted. Given the only evaluation of the impact of conditional cautions found that conditions made no difference to reoffending, it’s unclear whether this was the best decision.
• In police forces which only offer community resolutions and conditional cautions, the latter was seen as a “low bar to pass for cases where the public interest demanded more than a community resolution, but not a charge”. In an example from one officer: “He was never really going to get charged for a straightforward personal use [drugs] possession, first-time offence. We were told if it’s something where potentially they’re going to go to court and they’re going to get something like a conditional discharge or a very small fine then we’d look at doing a conditional caution as an alternative.” And once someone has received a conditional caution, they are less likely to receive other out of court disposals in future.

The problem with up-tariffing is that the conditional caution has serious consequences – the conditions attached can be intensive, and non-compliance can result in prosecution. It also comes with a criminal record which has implications for employment, housing, volunteering and even travel.

Cerys Gibson identifies one culprit behind up-tariffing as the vague and sometimes conflicting guidance around the use of out of court disposals. Guidance is clear about when cases should be charged versus when they could be dealt with via conditional caution. But the lower boundary – whether the offence is so serious that a conditional caution should be used instead of lower-tier responses such as community resolutions – is a grey area. The Code of Practice (the key guidance on caution use) sets out no lower threshold on when it is in the public interest to administer a conditional caution, rather than another form of out of court disposal or no further action.

As the research concludes, this absence of a lower boundary risks people being up-tariffed. Out of court disposals are there to minimise the risk of people being drawn into the criminal justice system. Strengthening the new guidance on conditional cautions to emphasise that they should only be used where it is in the public interest to charge the offender would be a good place to start.