Police and Crime Commissioner’s
Themed Public Forum
Out of Court Disposals
Briefing Paper
What are out of court disposals?
An out of court disposal is a way of dealing with a crime or offence that does
not require a prosecution in court. Out of court disposals are not new and
have been used for many years in relation to minor traffic offences such as
parking fines and minor speeding matters that if uncontested, could be dealt
with without proceeding to court.
Cautions for crime have been used since 1984 when The Police and Criminal
Evidence Act introduced cautions by police inspectors,
More recently out of court disposals have been rationalised by the Home
Office and through legislation such as the Legal Aid, Sentencing and
Punishment of Offenders Act 2012.
The Home Office states that: “Out-of-court disposals allow the police to deal
quickly and proportionately with low-level, often first-time offending which
does not merit prosecution at court. This allows the police to spend more time
on frontline duties and tackling serious crime.”
In practice there are a number of different disposal options for a crime,
offence or anti-social behaviour that if used prevents the need for the case to
proceed to court. In exceptional circumstances an out of court disposal can be
given for more serious offences if it is determined that it is not in the public
interest to prosecute the offender.
The out of court disposals used by GMP are:
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Cannabis Warnings – only available for adults (18+)
Penalty Notices for Disorder – only available for adults (18+)
Youth Cautions - youths (10-17)
Simple Cautions - adults (18+)
Conditional Cautions - adults (18+) and youths (10-17).
Restorative Justice
For any out of court disposal to be used there must be an admission of guilt
by the offender. If there is any question surrounding the guilt of the offender or
the offence is denied, and there is sufficient evidence to charge, the case
should proceed to court.
Restorative Justice
Restorative Justice is a technique which can be used as a disposal in itself or
as a complementary element of another out of court disposal. Restorative
processes bring those harmed by crime or conflict, and those responsible for
the harm, into communication, enabling everyone affected by a particular
incident to play a part in repairing the harm and finding a positive way forward.
Cannabis Warnings
These are only available for adults, as any young person found with cannabis
indicates a safeguarding issue and therefore should not be dealt as an
isolated incident and further enquiries should be made into the wellbeing of
that young person.
These warnings can only be given for possession of a small amount of
cannabis for personal use and only if the intended recipient has not previously
been dealt with for a cannabis or drug related offence. The drugs are
confiscated and the offender warned by the officer that any future cannabis
use would lead to a caution or prosecution.
Penalty Notices for Disorder
A Penalty Notice for Disorder is a statutory disposal introduced by the
Criminal Justice and Police Act 2001. At the time these were publicised in the
media as an ‘on the spot fine’. In reality, the offender has 21 days to pay the
fine or elect a court hearing if the issue of the notice is contested. Penalty
offences are divided into lower and upper tier offences depending on
seriousness and attract penalties of £60 and £90 respectively. These notices
can be issued for a whole host of offences, but are mainly used for shoplifting
where the value of the goods stolen is less than £100, damage under £300,
licensing offences and public order offences. These are only available for
adults.
Youth Cautions and Youth Conditional Cautions
Although cautions for young people have been available for some time, the
inception of a youth conditional caution and tighter controls on the issue of
cautions for young people were all introduced by the Legal Aid, Sentencing
and Punishment of Offenders Act 2012. Under this new framework all out of
court disposals can be used, whichever is the most appropriate for the
offence. Previously punishment for young offenders could only increase in
severity, regardless of the offence. For example, once a caution had been
used the offender must then be charged, even if the second offence was more
minor than the first. These changes addressed the anomaly between the
adult and youth justice systems.
The Act also introduced the need to notify the relevant Youth Offending Team
of any caution issued and refer any young person to the Team for assessment
before any conditional caution could be given out. The conditions attached to
a youth conditional caution should be agreed with the Youth Offending Team
and designed to reduce the likelihood of re-offending. Conditions should last
no more than 3 months.
Simple Cautions and Adult Conditional Cautions
Like youth cautions, simple cautions for adults have been available for many
years. Adult conditional cautions were introduced by the Criminal Justice Act
2003, the Legal Aid, Sentencing and Punishment of Offenders Act 2012
brought in national guidance on use of adult conditional cautions. The
conditions that can be attached to a conditional caution must have one or
more of the following objectives:
Rehabilitation – conditions which help to modify the behaviour of the
offender, serve to reduce the likelihood of re-offending or help to reintegrate
the offender into society;
Reparation – conditions which serve to repair the damage done either
directly or indirectly by the offender;
Punishment – financial penalty conditions which punish the offender for their
unlawful conduct.
For all conditional cautions, if the conditions attached are not fulfilled or
broken then the offer of a conditional caution is withdrawn and a decision to
prosecute for the original offence is made.
Regulation of Out of Court Disposals
With so many different out of court disposals available, how do the police or
other prosecuting authority decides which outcome to use? The Association of
Chief Police Officers (ACPO) has produced two gravity scoring matrices for
both adults and young offenders. The matrices list offences and give each
offence a gravity score. The score can be increased by aggravating factors
such as, committing a theft whilst carrying a knife, and reduced by mitigating
factors such as a person being coerced into committing the offence. The
matrices ensure consistency in decision making. Other factors that influence
the decision are the criminal history of the offender, previous use of out of
court disposals and the willingness of the offender to engage with the
process.
An example - A 16 year old steals £3.20 worth of sweets. This could be
dealt with using a restorative justice approach between the shop keeper and
the young person. However, if this was the third time the person had been
caught and they had already been given a conditional caution (one of the
conditions being not to associate with a named group who steal regularly and
they are caught with members of that group) then for the same value theft
they may proceed to court. Consideration would also be given to charging the
individual for the current offence and the one for which they originally received
the conditional caution, as they had broken the conditions of that caution.
The Home Office have also recommended that Overview and Scrutiny Panels
are established locally to review a sample of out of court disposals each
month. It is recommended that the panel contains a magistrate to ensure
consistency with court disposals.
Role of the Crown Prosecution Service
The Crown Prosecution Service is not routinely involved in out of court
disposals as they are engaged in prosecution in court. Any serious offence,
which would generally attract a significant custodial sentence on conviction,
would normally be required to be dealt with at court. Any indictable only case
(i.e. a case that can only be dealt with in a Crown Court) considered by the
police as suitable for a conditional caution, must be referred to the Crown
Prosecution Service. This is to maintain public confidence in the Criminal
Justice System. However, if the police were considering issuing an out of
court disposal for a serious offence, one triable at Crown Court only, they
would have to consult with the Crown Prosecution Service and obtain their
authority to use that outcome.
The Crown Prosecution Service has two considerations before authorising an
out of court disposal:
1. Is there a realistic prospect of conviction if the case proceeded to court?
(The Evidential Test)
2. Is it in the public interest to prosecute the offender?
(The Public Interest Test).
The prosecutor also has to record the exceptional circumstances surrounding
the decision to use an out of court disposal for a serious offence.
Use of out of court disposals in Greater Manchester
For the financial year ending 31st March 2014, Greater Manchester Police
used out of court disposals to deal with just under 10% of all recorded crime.
The total number of out of court disposals used during 2013-14 was 17,414.
In terms of offence types, the main contributors were:
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3,638 (21%) for shoplifting
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3,475 (20%) for possession of drugs
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2,650 (15%) for offences of violence without injury
The most up to date figures published by the Ministry of Justice, covering the
12 month period to 31st December 2013, illustrated the following in relation to
the use of out of court disposals within Greater Manchester.
Of the 52.4 thousand offences brought to justice:
 the vast majority (76%) resulted in a conviction
 12.4% resulted in a caution
 4.8% involved the issue of a cannabis warning
 2.9% were dealt with using a penalty notice for disorder