The end of the ‘cautions culture’?
Cautions, warnings and other out of court penalties have few champions. Magistrates and judges have long called for an end to our ‘cautions culture’. If by that they meant a drastic reduction in the use of out of court disposals, they have succeeded – the proportion of offenders in England and Wales who were cautioned has fallen from 30% to 13% over the last ten years, This means offenders who might previously have been given an out of court disposal are now prosecuted in court. The question of whether this is this good for justice is tackled in a new report by Rob Allen: Less is more – the case for dealing with offences out of court.
Out of court disposals were criticised for being unregulated and lacking transparency. They are given by the police when a suspect, usually without legal advice, admits guilt, and accepts a caution, warning or fixed penalty. There are undoubtedly risks in such an informal process, particularly that someone might admit to committing a crime of which they are not guilty – to avoid court and to get it over and done with. The problem with accepting a caution is that it is a criminal sanction and may become a lifelong criminal record.
The decline of out of court disposals is all the more surprising given the evidence of their effectiveness. For those who are guilty of a minor offence, the out of court disposal offers speedy justice, often on the street. It replaces the court process, which most people find time consuming and unpleasant. And many out of court disposals are ‘non-recordable’, which means that the recipient never has to declare that conviction and it will not appear on a criminal records (DBS) check. But some out of court disposals can come up on a DBS check in some circumstances. So it’s important the police communicate the full implications of accepting one. Better training may be required. And the report also recommends that the law on criminal records should be reformed so that out of court disposals do not come up on a DBS check years after the event.
The mystifying thing about the decline of out of court disposals is that they appear to be more effective than sanctions meted out in court. 15% of those cautioned in 2015 were known to reooffend within a year, half the proportion of those who received a conditional or absolute discharge in court. 27% of those fined by a court reoffended. Those given a caution who did reoffend committed fewer offences than those reoffending after any court imposed orders.
Campaigners undermined out of court disposals by saying they did not command the confidence of the public, and particularly victims. But the evidence does not support this. Surveys suggest the public are no less confident in out of court disposals than in court justice. Victims and witnesses frequently find the court experience both long drawn out and traumatic. A 2011 study found that 53 out of 64 victims reported being ‘satisfied or ‘extremely satisfied’ with the out of court disposal, compared to 14 out of 22 of those where the offender went to court. 12 out of 17 victims were satisfied with a simple caution – which places no obligations at all on an offender. For conditional cautions, the satisfaction rate was 11 out of 12. The Police Inspectorate who did the study found that ‘the level of victim satisfaction hinged largely upon the extent to which they have been kept informed and updated’.
One of the champions of the out of court approach is David Lammy MP whose recent report on race in the criminal justice system highlighted an innovative scheme – the deferred prosecution. This involves allowing someone who is in line to be prosecuted, to take a rehabilitation programme instead. They do not have to plead guilty to the crime of which they have been accused, but do need to abide by the conditions of the programme. If they do this, the prosecution does not go ahead. The evaluations of the pilots has not yet been published but early results look promising.
What’s not to like about out of court disposals?
Scrutiny and accountability have been improved, but could go further. Police need better training, particularly in the importance of legal advice and, above all, in the judicious use of discretion. Under New Labour, out of court disposals were probably over-used, for incidents which should never have been criminalised. But the pendulum has now swung too far. Of course they should not be used for very serious crimes, but they offer local, effective, face-to-face justice.
