The practice of resolving crimes without going to court is in flux. HMICFRS has suggested that usage of out of court disposals (OOCDs) has gone up in the pandemic, partly due to the court backlog. But there are also concerns that victims may not have been consulted in every case, leading to a potential diminution of trust in the system.

Of course, victims should be consulted where possible on the use of out of court disposals, and their views recorded, but existing research suggests victims can be as, if not more, satisfied when crimes are diverted from prosecution than when they are sent to court. Communication is key. Most victims want something to be done to prevent a person who commits a crime from doing it again. If the police explain why it’s best to resolve a crime without going to court, most victims are OK with that. And a recent Transform Justice poll of the public suggests people in general approve of diversion from prosecution – 77% of those who expressed a preference (58% altogether) supported policies to resolve crimes without going to court.

But there are clouds on the horizon. The government is bringing in new legislation to change the menu of out of court disposals. The current menu has six options including two different types of caution, penalty notices for disorder and khat warnings. The government has long wanted to narrow down the options, and has piloted a two tier system (only using the formal conditional caution and the informal community resolution) which many police force areas have now adopted. But other forces were wary of narrowing down their options and didn’t adopt the two tier approach. They pointed out that the simple caution was simple and effective in reducing reoffending, and weren’t keen on ditching it.

The government has been concerned by the diversity of practice across the country and wanted all forces to move to the two-tier system. Their proposals were in the white paper on smarter sentencing, which was not subject to public consultation. The government has been developing the white paper proposals into legislation and details were unveiled this week at a “national conversation” event organised by Why Me? (who also launched their new good practice guide on the use of restorative justice out of court). The proposed legislation is different to the current two tier system and to the white paper proposals.

The government are now proposing two “formal” out of court disposals rather than one and the names have changed – instead of conditional caution, the government are proposing a diversionary caution and a community caution, a new disposal. The government are not sure what will happen to the current community resolution, which might be used in addition to the two formal out of court disposals (the diversionary and community cautions), or might be phased out. So the legislation will proposing a new disposal and that police forces should run either a three tier system (if the community resolution remains) or a completely new two tier system. There are a number of challenges with these new proposals:

• They have not been subject to any open consultation and the new system is very different to the current two tier system or to the white paper proposals. And there is no proposal to pilot the new disposals.
• Police forces have undergone huge change programmes (and encountered some front-line resistance) to bring in the current two tier OOCD strategy. They will be faced with another big change programme to bring in the new one.
• The at risk community resolution is now the police’s most popular way of resolving crime out of court. The person who committed the crime needs to accept responsibility (rather than make a formal admission of guilt) and the sanction is unlikely to ever be cited in their criminal record.
• There is no room in the new framework for a formal out of court disposal without conditions, despite the huge success of the simple caution (which had no conditions) in reducing reoffending.
• The new framework will be particularly problematic if the community resolution is totally phased out. This informal sanction is suited to low level crime and allows for on the street restorative justice. Those from black and minority ethnic communities may be particularly reluctant to make a formal admission of guilt. The community resolution offers an alternative to prosecution which all can accept.

If the government proposes getting rid of both the community resolution and the simple caution (as trailed), it will be risking confusion and ditching tried and tested options. Let’s hope that the legislative proposals will be improved before being tabled. Normally I’m all for reform. But in this case I fear the proposed changes will lead to forces using prosecution rather than effective diversion.