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Out of court and out of mind

Penelope Gibbs
26 Oct 2019

Last year 215,000 people who committed crime in England and Wales were dealt with out of court (14% of all individuals dealt with formally by the criminal justice system) but you wouldn’t know that from the 555 page report published by the eminent review team convened by the Welsh government to make recommendations for reform of the criminal justice system.

The report is impressive and the omission understandable. Out of court disposals and approaches generally get too little scrutiny and many people don’t even know what they are. Two years ago we published a report by Rob Allen on the decline of out of court disposals (cautions, fixed penalties, community resolutions). He argued that out of court disposals are a key part of the criminal justice armoury – they are cheaper and, in many cases, more effective than court sanctions, both in reducing re-offending and in satisfying victims that harm has been addressed.

The decrease in prosecutions (4% over the last year) in England and Wales has hit the headlines recently. Those seeking causes often cite an increase in out of court disposals as one of the reasons for the decrease in prosecutions. But it isn’t. Out of court disposals have decreased more than court disposals in recent years. No-one knows why, or what happens to those who are apprehended by the police but neither arrested nor given an out of court disposal.

The report doesn’t say whether Wales’ usage of out of court disposals differs from that of England but I assume trends are similar. Meanwhile it does has a fascinating analysis of why prosecutions have fallen in Wales (as they have in England) which has set me thinking.

Various explanations have been put forward for the five year reduction in prosecutions and convictions in England and Wales, including the reduction in police numbers and delays in court hearings. But evidence from Wales suggest these two factors may not be key causes.

Police numbers in Wales have declined much less than those in England because Welsh central and local government have topped up funds from Whitehall. And they have retained neighbourhood police too. So total police numbers have declined 0.6% in Wales while across the whole of England and Wales it was 16% (2010-18).

Equally Wales seems to have kept a better grip of the time taken for cases in court :“Wales is consistently better than any of the English regions in the performance of the courts in the delivery of criminal justice. This has broadly been the position for a number of years. The number of ineffective trials is significantly lower than in the regions of England, and the number of effective trials is comfortably ahead of the England and Wales average. In the Crown Court, the Wales disposal rate per 100 sitting days was significantly better than in any English region”. So it can’t be argued (as it is for England) that cases are collapsing because they are taking longer.

The report cites other plausible reasons for the rise in recorded crime compared to prosecutions

  1. “The police are now recording many offences for which the victim wants no police action or any further interaction with policing. This is particularly true in ‘violence without injury’ and in many ‘stalking and harassment’ cases. This was not the case in the past and has therefore resulted in an increase in recorded offences”.
  2. “The period has also seen increases in more complex offences…this has resulted in many more complex and often difficult investigations which require skilled and experienced investigators”.
  3. “In the digital age almost all crimes and investigations have an aspect of a digital footprint. The number of digital forensic examinations required is increasing substantially year on year. It has been difficult for forces to increase resources sufficiently to match the demand”.
  4. The introduction of new restrictions on police bail, may have led to forces taking too long dealing with cases where someone has been released under investigation but not charged. “As a result usually high risk cases take precedence and consequently timescales associated with lower risk cases often end up being extended. This has the further consequence that evidence may be lost and victims and witnesses may withdraw their support from the investigation”
  5. “There has been a substantial reduction in funding across the criminal justice system”, including for the CPS.
  6. An increase in diversion such as 18-25 Diversion Scheme in South Wales, where young adults take the opportunity to have an Adult Community Resolution instead of being criminalised through prosecution in the criminal justice system. Such schemes reduce the number of individuals being prosecuted and also divert staff time. “As a result, the Welsh forces have seen a shift in focus from reducing volume crime to managing the risk from vulnerability, which requires a different approach from the traditional approach to policing, requiring officers to develop new skills to deal with those suffering from mental health issues, vulnerable victims of rape, domestic abuse, modern slavery or exploitation by criminal gangs”.

The Welsh Review’s analysis of the reduced number of recorded crimes leading to prosecutions is excellent. But I think it’s a pity they didn’t question whether successful prosecutions are a good measure of the effectiveness of the criminal justice system. No-one should offer to take a caution if they are not guilty, but equally cautions and other out of court disposals offer a swift and effective way of dealing with those committing minor crimes. Complete diversion from the criminal justice system is the right solution in some cases, out of court disposals in others. But the latter are not being used enough.

If we are to have 20,000 more police officers across England and Wales tasked with apprehending those who commit crime, I only hope they get good training in diversion. Out of court disposals should be neither out of sight nor out of mind.