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OOCDs: the path to best practice

The pandemic highlighted the need to increase the range of deferred prosecution options forces have to deal with offenders. But the landscape is changing with the prospect of new legislation and some innovative pilot schemes. Gary Mason reports.

OOCDs: the path to best practice

Date - 12th November 2020
By - Gary Mason

The policing landscape relating to out of court disposal and deferred prosecution schemes is a complex one.

There are a mish-mash of pilots at different stages of maturity and attempts to standardise the approach taken by forces have been ongoing since 2014 with mixed success.

Significant changes to the OOCD framework can only be made through primary legislation. Ministers considered introducing new legislation to simplify the system in 2016 but the proposals were dropped to reduce the scope of the Ministry of Justice’s Court Bill.

Now there is a renewed focus on reform of OOCD and deferred prosecution schemes following the publication of the Lord Chancellor’s sentencing White Paper in September.

Promoting a ‘smarter approach’ to sentencing the Lord Chancellor said the Ministry of Justice would “simplify the out of court disposals framework” and streamline options to drive consistency based on the schemes that are the most effective. There is also the opportunity to look at different ways of providing interventions that enhance the existing requirements outlined within individual offender contracts.

While we await to see what this new legislation will look like there is an acknowledgement that forces will need time and resources to implement the reforms. The National Police Chiefs Council (NPCC) has also highlighted the need for greater scrutiny of OOCD use backed up by a rigorous inspection regime by HMICFRS.

A brief history of OOCDs

Out of Court Disposals allow the police to deal quickly and efficiently with low-level offending without recourse to the courts. For most OOCDs, the offender must admit guilt and agree to the disposal. Historically there are six adult disposals: simple and conditional cautions, penalty notices for disorder (PND), cannabis and khat warnings and community resolutions.

In 2013-14 the Government consulted on simplifying the OOCD framework used by forces and increasing the use of conditions.

A ‘two-tier framework’ was piloted in three police forces in 2014-15 (West Yorkshire, Staffordshire, Leicestershire). In these pilots, forces used only two of the six disposals: conditional cautions and community resolutions, meaning all disposals included a condition which was either rehabilitative, reparative, restrictive or punitive. This was intended to move away from common practice in most police forces which was heavily reliant on simple cautions that are warnings not to re-offend with no conditions or follow-up action attached.

It was hoped the two-tier framework would address the underlying causes of offending at an early stage and increase a focus on the victim, by promoting the use of reparative actions. For example, police would be encouraged to attach conditions that require an individual to engage with substance abuse or mental health services and/or to provide compensation or an apology to a victim.

Evaluation of the pilots showed little impact on re-offending and an implementation cost to police forces. However, areas did show stronger focus on victim reparation. Re-offending results may mask variations in effectiveness of individual conditions, since other international evidence has shown that certain rehabilitation programmes (e.g. drugs, mental health, anger management initiatives) can reduce re-offending. All three of the pilot forces continued to use the 2-tier model after the pilot ended. In addition, a number of further forces have adopted the two-tier framework over the last few years.

In addition to the OOCD options, a number of forces operate some form of deferred prosecution programme -  two of which are part of the Ministry of Justice’s Chance to Change pilot programme ­in West Yorkshire and North West London.

These programmes are different from OOCDs. They are local, bespoke schemes and vary from each other, and from OOCDs, in terms of eligibility criteria, intervention methods and outcome options. Significantly, deferred prosecution/caution schemes often do not require an admission of guilt.

Moving to a two-tier system

Despite the absence of primary legislation, the NPCC remained in favour of simplification and published a strategy at the end of 2017 encouraging a voluntary move by forces to use only conditional cautions and community resolutions. The National Strategy was agreed and adopted by all Chief Constables at Chief Constables Council in November 2017, who agreed to move to it when financially and operationally viable.

To assist forces the NPCC has developed a briefing pack and a revised adult gravity matrix for standardised decision making (with a combined youth and adult gravity matrix in development). But it acknowledges progress in moving to a two-tier system has been slow and forces face a number of issues including funding which is not within their remit; Police and Crime Commissioners are responsible for the commissioning and funding of most OOCD schemes.

Rob Goodrum-Ward is staff officer to Hampshire DCC Sara Glen who holds the NPCC portfolio for Charging, Out of Court Disposals and Restorative Justice. He told Police Oracle: “The pace of change has been slow for many forces. Those forces tell us that barriers to moving to the new framework are often financial, a lack of local services or service providers to tap into for OOCDs with a referral condition. Or simply that they feel their existing framework is sufficient for their purposes. We have had good engagement though, with most forces planning to move to the new framework when viable.”

The NPCC carried out a landscape review in June 2019 and again at the start of the COVID-19 pandemic to understand what progress forces had made.

Coronavirus restrictions meant that forces were unable to offer many conditional OOCDs that required an intervention – for example group work where the health regulations would not allow this. Those forces have had to temporarily revert to either simple cautions or find alternative means of delivering interventions, such as video/telephone calls and online services.

Number of forces adopting OOCDs models:

 

                              2-tier model             6-tier     Hybrid

June 2019                15                           22           6             

March 2020              11                           25           7

 

Limitations of two-tier

A 2-tier framework has limitations when dealing with some offences. Conditional cautions cannot ordinarily be offered for domestic abuse offences, although they can be sanctioned by way of a simple caution. One initiative, CARA (Cautions and Relationship Abuse), ran as a pilot in Hampshire Constabulary between 2012-2015, and was evaluated by Cambridge University in 2017. Since then the Director of Public Prosecutions has granted dispensation to seven additional forces to use conditional cautions, subject to strict pre-conditions.

Hampshire continues to use CARA. The other forces are at varying stages of implementation. The original MOJ pilots also retain permission to use conditional cautions for domestic abuse. The DPP dispensation allows forces to use a conditional caution for standard and medium risk cases only. High Risk cases should be referred to the CPS for a charging decision in the usual way.

The NPCC says it is currently reviewing the performance of a number of the early pilots to inform joint decision making with regards further national roll-out of the scheme.

The DPP has also granted three forces (Hampshire, West Midlands, Avon and Somerset) dispensation for a hate crime pilot utilising conditional cautions  - another offence type that was outside the two-tier system. These are not yet live.

Scrutiny and Race disparity

All forces already have independent criminal justice scrutiny panels in place in relation to out of court disposals. In July 2019 the NPCC published updated guidance (agreed with the Ministry of Justice) to all forces on the panel function, and advising the panel chair should be independent of the police. It also requires forces to undertake examination of disproportionality in respect of race and OOCDs.

All forces have criminal justice scrutiny panels for OOCDs

The NPCC says it is awaiting findings of the MOJ’s Chance to Change pilot to understand how this may inform future policy. As stated previously deferred prosecution/caution schemes do not require an admission of guilt, and as such this is being tested in the national pilot where anecdotally admissions for BAME offenders are lower. Those reasons are being explored further.

The White Paper on sentencing reform strongly backs the two-tier system as both conditional cautions and community resolutions allow police forces to attach some form of condition or action to the disposal.

They also offer support of divert first time and low-level offenders or refer them to intervention services if they have mental health or other issues that contribute to their offending behaviour.

Rob Goodrum-Ward says the prospect of new legislation is an opportunity to drive consistency, transparency in decision making and greater scrutiny of OOCD use. It can also help drive innovation and best practice in the use of other deferred prosecution remedies being piloted in the Chance for Change Programme. 

“There is the opportunity to ensure victims, offenders and our communities understand OOCD’s, and their use as a legitimate tool in suitable and proportionate cases.” he says. “Once this is achieved there is the opportunity to innovate further, and if the national Chance to Change pilot shows positive results in respect of BAME offenders, then forces already using the two-tier framework will be in a much better position to adapt and adopt future recommendations on deferred conditional out of court disposal schemes that don’t require an admission of guilt.”

 

Case studies

DEVON AND CORNWALL

The Pathfinder Out of Court Disposal Scheme will see low level offenders paying a one off fee to engage with one of the behaviour change programmes available on an online digital Intervention Hub as part of a deferred caution and deferred charge.

The force say the operational pressures of COVID-19 have hastened the need to increase the range of provisions available when dealing with offenders.

This will be one part of an overarching contract of conditions that the offender will have to comply with such as, for example, paying compensation to the victim. The Intervention Hub uses Computerised Cognitive Behavioural Therapy (CCBT) which can be delivered on a SMART device. The pilot commenced on August 10 and will be completed within 12 months after which it will be evaluated.

Devon and Cornwall Police said: “The Pathfinder programme is keen to embrace different ways of providing interventions that enhance the existing requirements outlined within individual offender contracts. The online provision will be another tool to help offenders increase their self –awareness and reflect on some of the thought patterns, behaviours and triggers that are linked to their offending”.

DURHAM

Checkpoint was set up by Durham Constabulary in 2015.

An offender, who is assigned a specialist worker for the duration of the programme, must have a complete understanding of their obligations. They must have also made an admission or a “no reply” interview but with the proviso there is sufficient evidence to charge.

Anyone detained for court or under the Mental Health Act is not able to use Checkpoint, nor is someone already subject to a court order, suspended sentence or conditional discharge; the subject is excluded for the period specified in the order and are not eligible if there are any co-accused involved.

As part of Checkpoint, the police will engage with the victim where possible and explain the outcomes that are available to the suspect.

Checkpoint currently offers a deferred prosecution and supported desistance via an individually tailored contract to engage with partner agencies based on the offender’s needs.

According to the force the programme is not “a soft option” and will often be harder for the offender to complete than all of the current out of court disposals currently available to them, such as a caution or a fixed penalty notice.

If the subject successfully completes the contract and does not reoffend during that 4 month period, then no further action will be taken against them.

However, if they re-offend or fail to comply with the conditions of the contract then they will potentially face an alternative prosecution and we will provide the courts with the circumstances of their failure to complete the Checkpoint programme.

Eligible offences include:

  • Theft – All theft offences;
  • Burglary Residential* and Commercial;
  • Criminal Damage;
  • Drugs – Possession of any controlled drug and also low-level offences linked to the supply of controlled drugs;*
  • Fraud;
  • Public Order;
  • Child Neglect;*
  • Standard or medium graded domestic-related crimes;*
  • Common Assault, ABH and assaulting a police officer;
  • Possession of an offensive weapon/bladed article;
  • Harassment and Malicious Communications;
  • Cyber Crimes.

* Specific terms apply in these cases

Hate crimes are not accepted for Checkpoint.

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