‘Haphazard’ use of out of court disposals undermining justice, warns report

It says the “haphazard” way in which the use of OOCDs has expanded in England and Wales has led to a “troubling and largely unchecked transfer of powers from the courts to the police”.

Although aimed at low-level offending, the report found they are increasingly being administered for more serious offences, such as domestic abuse, knife crime and hate crime.

OOCDs, such as conditional cautions, fixed penalty notices and community resolutions, allow the police to deal with low-level and some first-time offences, giving offenders the opportunity to avoid going to court.

However, while these can be a useful tool for the criminal justice system and help reduce court backlogs, the report finds that police forces across England and Wales are using them inconsistently, creating what the Justice Select Committee previously coined a “postcode lottery” of justice.

It also raises concerns about the type of offences for which OOCDs are being pursued.

“One of the fundamental principles of our criminal justice system is that justice must be seen to be done,” said the Magistrates’ Association. “While courts hear cases in public, with anyone able to observe and report on proceedings, OOCDs are administered behind closed doors.

“Most police forces have sought to overcome this lack of transparency by establishing scrutiny panels that meet regularly to review the appropriateness of a sample of locally administered OOCDs.”

However, it said this is not a statutory requirement and at least two of the 43 police forces that received a Magistrates’ Association Freedom of Information (FoI) request confirmed no such panels exist in their area.

The organisation’s research also reveals that just two scrutiny panels in the whole of England and Wales are attended by members of the public and that the majority of police forces do not share the results of their panels publicly.

“Some areas are failing to scrutinise the use of OOCDs at all, while others are using mechanisms that vary greatly from those of the next,” says the report.

“Such a patchwork of implementation and monitoring of OOCDs has led to a troubling overlap between the powers of the police and the sentencing powers of magistrates’ courts.

“It also carries considerable risk of wide variation in the administration of justice, a lack of transparency and an absence of heterogenous accountability – all of which could serve to undermine public confidence in the wider justice system.”

It adds: “Given that public accountability and transparency is a major requirement of a police and crime commissioner’s (PCCs) role, it was concerning that several of the 40 PCCs we also reached out to reported not knowing if a panel existed and, consequently, referred our FoI onto the police.”

Mark Beattie, national chair of the Magistrates’ Association, the membership body for magistrates in England and Wales, said: “These results demonstrate a disturbing lack of national consistency of scrutiny by police and crime commissioners nationally for a substantial level of criminal justice administration.

“The increasing number of serious offences dealt with by OOCDs seems to be developing unchecked. There needs to be a national review by government and the senior judiciary to ensure the OOCD system operates in the interests of justice with proper transparency and accountability, and that it does not fly under the radar of good quality justice.”

The report, published on Tuesday (December 13) ahead of implementation of reforms under the Police, Crime, Sentencing and Courts Act 2022, makes seven recommendations to the Ministry of Justice, Home Office and police to ensure greater consistency in the use and scrutiny of OOCDs, which it says will “strengthen open justice and bolster public confidence in the system”.

These include establishing a national body to ensure consistency of OOCD practice, and that nationally comparable data from each police force is published quarterly.

In addition, the Ministry of Justice and Home Office should clarify a “nationally agreed list of offences for which OOCDs may be used”, while every police force should commit to ensuring greater public understanding of OOCDs, including having a definition on their website and encouraging public engagement with scrutiny panels.

The Police, Crime, Sentencing and Courts Act will introduce a statutory requirement to standardise a two-tier system whereby police can only administer either a community resolution, aimed at first-time offenders, or a conditional caution, aimed at tackling more serious or persistent offenders. However, the report says the Act does not include any scrutiny requirements.