Out of Court, Out of Favour?

 

It’s encouraging to see a renewed focus on dealing with low harm crime out of court, at a well-attended Diversion Summit in London today and in the latest Transform Justice Podcast. Lots of evidence shows that well implemented arrangements for offering community resolutions, cautions and deferred prosecutions can offer a swifter, more certain and more effective response to offending than processing cases in the courts- and one which can be more satisfying for victims.

But the use of these options has fallen to a greater extent over the last ten years than has charging. As Chief Inspector of Police Andy Cooke told the Summit, diversion is essential and the police could use it more, and more consistently. There’s huge variation between Police Force areas in the extent to which out of court disposals (OOCD) are used for children and adults.

Part of the problem is the politics – OOCDs sound like a soft option- but on this as with sentencing, the public and victims are not necessarily as punitive as the politicians suppose-  or perhaps would like them to be.  

Another challenge is the way police performance is assessed. The Summit heard very promising results from a trial of deferred prosecution in London about which Met chiefs are wary. Why?  Because however good the results in terms of compliance and re-offending, Home Office counting rules don’t recognise the measure as a positive outcome in terms of clearing up crime. It’s puzzling if what Cooke called a “ridiculous bureaucracy” is discouraging the roll out of 'interventions before pleas' as recommended by David Lammy’s review of racial disparities five years ago.

A third barrier is a police culture in which charging is the default option and the effort involved in setting up and monitoring rehabilitation measures puts officers off doing it. Several forces have developed elaborate and properly resourced programmes and partnerships to screen eligible offenders, match them to the interventions they need and track their progress. 

The summit heard about how a technological platform developed by social enterprise Make Time Count can make these tasks less time consuming although I’d have thought that some candidates for diversion – particularly young people with low levels of trust in the authorities- may have reservations about downloading a police app on their phone. More fundamental perhaps is the issue of what types and intensity of interventions should be available, how they should be determined in individual cases and who provides and pays for them.  Effective diversion may save the system money but there needs to be significant front loading of funds to get it off the ground.

A recent report by the Magistrates Association  claimed the “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.” While this may be overstating it, there's a wide range of diversion practice in place. This may be reduced somewhat when a national scheme for community resolutions and cautions is introduced this year or next. But questions will remain about what kinds of offender and offence should be dealt with out of court.

In particular, should repeat offenders qualify for a diversion option? Proponents of desistance theory would not want to rule it out and a scheme of rigid escalation into court is not likely to produce the best results. 

Police decisions are made with reference to a gravity matrix which aims to ensure that the most serious offending goes to court and the least serious kept out. There may be a need for Police Chiefs  to consult on the appropriateness of their current guidance in the matrix for the cases in between – in the way that the Sentencing Council consults on its guidelines . Minimum standards for the Scrutiny Panels which provide oversight to local diversion arrangements might also be needed. 

Those changes should help to win over the sceptics and ensure diversion can play the more central role in responding to crime which the evidence suggests it should do.