There is widespread and inconsistent use of out-of-court disposals such as cautions and penalty notices, according to a report by a think-tank. Proceed with Caution by Karen Sosa of Policy Exchange also finds that some serious offenders avoid prosecution – or many (near half) simply do not pay a penalty notice.
Analysis of 2011 Ministry of Justice data shows that despite peaking in 2007, the total number of out-of-court disposals issued in 2011 was still 68 per cent higher than in 2003 and in some circumstances, cautions are being used in response to serious offences. Data from Freedom of Information (FoI) requests to 43 police forces across England and Wales showed that 828 cautions were handed out in 2011 for three very serious (or ‘indictable-only’) offences – robbery, grievous bodily harm (GBH) with intent, and racially or religiously aggravated criminal damage – that should almost always be heard in crown court.
A gripe of retail loss prevention people has long been that penalty notices (or cautions) are given to shoplifters. Though penalty notices should only be given to first-time offenders, Karen Sousa pointed out that an offender could receive dozens of PNDs, as there is no integrated system or database exists to monitor repeat administration, whether in a force area or across force areas.
The paper called for a shake-up of the criminal justice system to prevent inappropriate and erratic use of cautions and penalty notices and to bring greater transparency and accountability to the regime for out-of-court disposals. It concluded: “Out-of-court disposals have an important role in the criminal justice system in England and Wales. If applied consistently and appropriately – and then enforced – they can offer a swift and effective response to low-level offending that is more cost-effective and proportionate than formal prosecution. However, despite an overall reduction in their use, the evidence points to a continued problem of widespread inconsistency in their application and in the enforcement of out-of-court disposals.”
The Association of Chief Police Officers (ACPO) called the report a helpful contribution to the debate on how the police use out of court disposals which ACPO pointed out, as highlighted in the report, have been declining since 2007 – though most recently the use has reached a plateau, at about one in three of all offences brought to justice. In 2010 the out of court disposals accounted for 33 per cent of all offences brought to justice; in 2011, 34 per cent.
ACPO lead on out of court disposals Chief Constable Alex Marshall said: “This report is a helpful contribution to the debate on how the police service use out of court disposals. As highlighted in the report the use of such disposals has been declining since 2007.
“There are a range of out of court disposals available to police officers and their use does vary across England and Wales. This is partly explained by the different styles of policing adopted by individual chief officers, who must respond to the specific issues within their local communities.
“ACPO together with the Ministry of Justice and Home Office have been working on national guidance to advise officers on the best use of out of court disposals for consistency of application across England and Wales, thereby ensuring each case is dealt with according to its individual circumstances. Some forces, including Essex and Hampshire, are working closely with magistrates on methods of oversight. We expect this work will also involve Police and Crime Commissioners under the new policing landscape.”
