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How to deal with the court backlog – divert rather than arrest

Penelope Gibbs
14 Nov 2020

It is hard to think there might be any silver lining to the pandemic. Particularly when it comes to crime and punishment, given 23 hour lock up in many prisons and increasing court delays. But it is those very delays which may provide an opportunity for dealing with crime in a different and more effective way – out of court.

The familiar process for police enforcement is arrest, detain in police custody, charge and prosecute. Or the police let go of the person accused of committing the crime for lack of evidence. But thousands of crimes are dealt with effectively by police without resorting to arrest – using cautions or community resolutions (collectively called out of court disposals) or by referring those who commit crime to the services they need.

The criminal justice system is like a bicycle with gears. Top gear is prison which is appropriate for some circumstances but not for most. The bottom gears are right for the lowest level of crime. A new report from the Howard League for Penal Reform shows that the wrong gears are often used in dealing with women who commit crime. 97,000 women were arrested in 2019 – over half for non-violent incidents, including 20,000 for theft. Police forces gave the Howard League access to 600 such case files. Of those arrested and detained in custody, 40% were released with no further action – “an unnecessary and wasteful use of police resources”. A few of the cases illustrate how arrest was perhaps misguided

– A woman was arrested for being drunk and disorderly. She was allegedly shouting and swearing in the street after her friend refused to let her stay in her house
– A woman was arrested after she walked into a main road repeatedly
– A woman was arrested for trespassing on railway property. She was allegedly drunk and was known to have mental health problems

Many of these arrests will have ended up with no further action. The Howard League points to alternatives to arrest which prevent undue criminalisation and which avoid the trauma of police custody. In West Yorkshire some women who shoplift are diverted to a specialist liaison and diversion worker. Instead of asking for arrest, the store rings a dedicated police phone line. If assessed as suitable, the woman attends a women’s centre and they together address the needs that led to her shop-lifting.

There is another innovative diversion programme focussed on shoplifting in the Midlands. There, a PC Stuart Toogood felt that had to be an alternative to processing prolific shop-lifters through the criminal justice system. The most prolific were addicted to crack and heroin and likely to continue shoplifting to feed the habit. Prison was a dead end, not a deterrent. For example, Caroline “was spending £1,000 per week on drugs and stealing £3,000 worth of goods to support her habit. [She stole] anything and everything, often to order for other people who gave her cash, often in local pubs. “I would just go into stores with a shopping list,” said Caroline. “I had been able to get hold of a detagger as well. Sometimes, even the security guards had paid me not to go in. But I’d wait till they had finished their shift and go back later.” PC Toogood felt only an intensive rehabilitation programme could potentially prevent addicts like Caroline stealing. So he managed to persuade his bosses to fund such a programme for the most prolific shoplifters. Drug recovery can be a bumpy road and it doesn’t work for everybody, but Caroline is drug free and has turned her life around.

PC Toogood’s programme is relatively expensive but each prolific shoplifter takes goods worth £250,000 each year. So, if it works for a significant proportion, it’s cost-effective.

These diversion programmes operate mostly under the radar, but victims who know about them are positive. Shop owners want shop-lifting to stop, anything that does so effectively is OK with them.  Out of court approaches – such as diversion programmes or the use of out of court disposals do by definition avoid someone being charged, prosecuted and processed through the court system. Even in the best of times, the prosecution process takes longer than police-led diversion. And the pandemic has created extra court backlogs. So it makes sense to use more out of court approaches and leave the top gears of the criminal justice system for people and offences that need them.