The reform aims to simplify the adult Out of Court Disposals (OOCDs) framework, to ensure consistency across police forces in the way low-level offences are dealt with out of court. The new framework will reduce the number of OOCDs from six to two in legislation, comprising an upper tier disposal titled ‘Diversionary caution’ and a lower tier disposal titled ‘Community caution’.
The two statutory OOCDs will allow police to attach conditions or actions to the disposal, meaning that the recipient needs to engage in some way with the outcome. This replaces the outcomes in some of the current OOCDs which are warnings or cautions which require no action.
This emphasises the acceptance of responsibility for the offending behaviour by the recipient and enables the police to refer people to support services, where relevant, as part of the conditions of the disposal. Referral at this early stage to relevant interventions services, such as substance misuse services, can help address the underlying causes of offending behaviour and help reduce reoffending or escalation of offending behaviour.
OOCDs are an important tool in addressing early stages of offending behaviour. They allow the police to deal quickly with low-level offending without recourse to the courts. They can maximise the use of officer time – achieving a satisfactory outcome for the public while allowing officers to spend more time on frontline duties tackling more serious crime. They are also an opportunity to provide intervention and support to potential offenders at the early stages in criminal behaviour, diverting them into rehabilitative services to help reduce escalation of offending.
The current adult OOCD framework has developed organically and in response to different needs at different times. At present, there are six adult OOCDs: community resolutions, simple cautions, conditional cautions, cannabis warnings, khat warnings and penalty notices for disorder (PNDs). These are a mix of statutory and non-statutory disposals. Some are simply warnings not to reoffend while others allow the police to attach conditions, such as paying compensation to a victim or attending a rehabilitative programme. Some police forces use two of the options, others use all six and some a hybrid in between.
A joint government and police review of OOCDs included a public consultation which ran from November 2013 to January 2014. This sought views from the public, as well as practitioners within the criminal justice system, including the police, the judiciary and the Sentencing Council. The consultation responses confirmed that the OOCD framework was in need of reform. In particular:
The joint government and police response to the consultation was published in November 2014. It set out plans to reduce the number of disposals from six to two.
To take this forward, in 2014-15 we piloted a ‘two-tier framework’ in three police forces. The three forces only used two of the six disposals: conditional cautions and community resolutions, which ensured that all disposals included an action which was either rehabilitative, reparative or punitive. This was intended to move away from common practice in most police forces which is heavily reliant on simple cautions that are warnings not to re-offend with no conditions or follow-up action attached.
The evaluation highlighted generally positive responses from police, and victims welcomed the opportunity for engagement in the condition-setting process. However, it was noted that adequate time to implement change would be required to roll this out, allowing for frontline officer training and service-level agreements to be established with intervention providers.
In addition, a 12-month proven reoffending analysis looking at outcomes between the pilot and the counterfactual areas showed that there were no statistically significant differences between the pilot areas and the counterfactuals in relation to the likelihood of reoffending, the severity of reoffending or the time taken to reoffend following a caution.
However, re-offending results may not account for variations in effectiveness of individual conditions. We do not have this level of detail, and the interventions used were not consistent across the three pilot areas. It is ultimately the effectiveness of specific conditions which are most likely to impact on reoffending, rather than simply the creation of a new structure which enables condition-setting.
International evidence suggests that certain rehabilitative programmes (e.g. drugs, mental health, anger management initiatives) can reduce re-offending. For example, the meta-analyses quoted in a Cambridge University evidence review suggests that a mature OOCD framework that directs offenders to effective treatment programmes could have an impact on reoffending. More research in the UK around effective treatments for individuals will be of value.
The National Police Chiefs’ Council (NPCC) supported the move to a two-tier structure and published a strategy at the end of 2017 encouraging a voluntary move by forces to use only conditional cautions and community resolutions. All forces signed up to the strategy. Some have moved fully to the two-tier model, some are in transition and others retain the full six OOCDs options.
MoJ has continued to support this voluntary implementation of the two-tier model and believes the time is right to move this to a legislative footing, ensuring that all forces are using a consistent OOCD framework.
Streamlining the options would bring national consistency, an opportunity for early intervention with vulnerable offenders, and a greater focus on victims.