Introduction:
The recent interim report "Independent Sentencing Review: History and trends in sentencing1” chaired by David Gauke commends “policy based on the evidence of what is likely to be most effective in reducing crime and reducing reoffending” (p.8). That review was focused on what happens once offenders have been found guilty by a court. However, we now have more than a decade of field research into deferred prosecution in England and Wales. One way to support Gauke’s mission of reducing unnecessary overuse of imprisonment is to reduce the number of offenders entering the formal criminal justice system by using effective alternatives.
Uniquely, in criminal justice, we have three large scale field experiments to draw on, alongside a wider body of research on cautions with conditions. Overall, the research suggests that a deferred prosecution with conditions may reduce harm at a reduced cost compared to prosecution and may be particularly effective for younger offenders committing offences involving violence.
The deferred prosecution model was originally tested in Birmingham in “Operation Turning Point” between 2011 and 2014. The trial was originally called “Damocles” after the story about the Syracuse tyrant, Dionysius, suspending a sword over the head of a courtier as a threat. The threat being offered in the Birmingham trial was that of being prosecuted unless the offender complied with an agreed contract, which included good behaviour and a range of treatments. These were intended to be tailored to the offender and their offending.
During the development of the trial, the officers involved opted to rename it “Turning Point” after the research conducted by Rob Sampson and John Laub on the way that offenders can be encouraged to desist from offending by key turning points in their life – relationships and employment were examples offered but arrest has also been labelled as a “teachable moment”.
The Birmingham trial involved more than 400 offenders of all ages whom the police had determined to meet the criteria – evidence and public interest – for prosecution. They were all triaged for prior record and seriousness of the offence to ensure that only low harm offenders were included. Finally, they were randomly assigned between court prosecution and Operation Turning Point. The second group were asked to attend a face-to-face meeting with a police offender manager within 48 hours, at which they were encouraged to agree a contract. This could include, amongst others, commitment to restorative justice with their victim, requirements not to contact the victim, alcohol or drugs treatment, mental health support or unpaid work.
As the trial progressed it became clear that police offender managers needed more training and support to set effective conditions. The programme team provided a combination of training and feedback with the provision of a simple online prescribing tool to support them saw the consistency of the conditions improve.
One objection to police led diversion advanced has often been that police officers would not support the model, seeing it as “going soft” compared to charging and bailing an offender. As the Turning Point developed it became apparent that something quite different was taking place. We conducted careful research with the police officers involved2 and their responses suggested that Turning Point was, instead, viewed as a serious attempt to change offending outcomes. As one custody officer put it:
“Custody Officers particularly older Custody Officers such as myself are generally regarded as probably being the most cynical bunch of Police Officers that you will ever come across, and the most difficult to convince that radical change is every going to be a good thing. But very very few Custody Officers failed to see the potential benefits of Turning Point”
There was also a vigorous debate in the programme board about how victims felt about the trial. The programme team set about surveying victims on both sides of the trial, those whose offenders had been prosecuted and those who had been diverted to Turning Point. Contact with an early sample of victims in the pilot phases suggested that officers were not consistent in explaining the diversion, its purpose and emerging outcomes. As the trial progressed a more structured process was put in place, based on procedural justice. The subsequent detailed victims’ survey showed that victims were generally more confident in Turning Point than they were with the court process.
The results of the first, Birmingham trial, suggested that deferred prosecution was effective with offenders who had committed violent crimes, but not so effective in crimes without a personal victim. A second trial, in Durham, Operation Checkpoint, used a similar model of deferred prosecution but used trained ‘navigators’ rather than police offender managers to set and manage the treatments. Dr John Cooper’s evaluation of Checkpoint included a very detailed cost benefit comparing Checkpoint with court processing. Cooper concluded that, even if we assume that deferred prosecution out-comes are no better than court, its cost benefit was around three times higher than court. The final outcomes for the larger London Turning Point trial will be available soon.
The three experiments did not explicitly include knife possession as one of the included crimes, so it is not yet possible to state confidently that deferred prosecution is “likely to be effective” in Gauke’s terms. However, it seems likely given the impact on of-fenders with violent offences that this is a path worth pursuing as a part of a wider strategy to reduce violence. The key elements for effective deferred prosecution are three: triaging the right group of offenders into the programme; setting realistic and well-designed conditions tailored to the offender and the offence; tracking the offender’s compliance and the effectiveness of the treatments.
There are reforms to cautioning and pre-court diversion that have been sat on the Ministerial cutting table for a ridiculously long time. It was 2014 when the then Secretary of State for Justice kicked off a consultation about a new “two tier” system of diversion. More than a decade later, Ministers have inherited an untested and yet to be implemented new system – community and diversionary cautions – and need to make some decisions. The time has come for some decisions and a clear template for a reformed pre-court approach, based on the best evidence and targeted at acute problems like knife crime.
Dr Peter Neyroud, CBE QPM CCMI, Associate Professor in Evidence-based Policing, Jerry Lee Centre for Experimental Criminology, Institute of Criminology, University of Cambridge, Steering member of Campbell Collaboration (Crime and Justice), Advisor to HM Government on Reducing Violence, Honorary Professor, Teesside University, Visiting Professor, Huddersfield University, and Fellow of Wolfson College, Cambridge
Further Reading:
