Prosecution in court can be avoided through the use of out of court disposals (OOCD), although, they are generally used where a low-level offence has been committed and people who continually offend are not usually considered.
In the odd case of a reoffender being given a further out of court disposal their case will be carefully considered by taking into account the seriousness of the offence, the victim’s desires, the impact the offence had on the community, the length of time between each offence and the offender. Suitable evidential standards must be met when a certain OOCD is required. An effective OOCD should ensure the public’s interest is served properly and also show a clear admission of guilt. A public interest test is used to decide whether or not to prosecute, for example, if violence or a weapon was used to carry out an offence it would be in the public’s favour to prosecute. However, the public will most likely be against prosecution if the defendant is elderly and as a result a suitable OOCD will be chosen. Out of court disposals provide two purposes for the criminal justice system;(i) offences can be dealt with efficiently and promptly by the police and(ii) an alternative approach to prosecution in various casesThere are several different methods available to the Crown Prosecution Service (CPS) and the police when dealing with suspects. These include;- Community Resolutions- Conditional Cautions- Simple Cautions- Youth Cautions- Cannabis Warnings- Penalty Notice for DisorderRestorative Justice can also be utilised out-of-court along with an out of court disposal. “Going through a restorative justice meeting has.
.. more impact on an offender than a prison sentence or a court punishment alone, as they see the consequences of their actions and so want to make changes in their future behaviour.” Community ResolutionsCommunity Resolutions can be used with adult and youth offenders.
It aims to change the offender’s behaviour so their chances of reoffending can be reduced. This helps encourage the offender to take responsibility for their actions and become aware of the impact that the offence has had on the individual. The offender can be advised on how to manage their behaviour, how to apologise to the victim and reparation.
In cases such as low-value theft, low-level criminal damage, anti-social behaviour and minor assaults a community resolution could be issued. An advantage of community resolutions compared to various options, a case can be dealt with, is that it does not form any part of a criminal record. This means that the individual will not be disadvantaged in any way when it comes to seeking a job or travelling. On the other hand, the number of violent crimes, for example, major assaults or crimes involving knives are increasing significantly and are resulting in no justice, no caution or criminal record. Another advantage is that photographs, DNA and fingerprints will not be taken by the police if the person is not arrested. Conditional CautionsThis caution must be authorised by the CPS.
It is a caution which is available for any offence, however, there are conditions attached. Punitive measures, rehabilitation or financial reparation are examples of conditions that an offender may need to follow. If the offender fails to comply with the set conditions they may face prosecution. A conditional caution is not a conviction, however, it does form a part of an offender’s criminal record.
According to the Criminal Justice Act 2003, Section 22 in order for an offender to be given a conditional caution they must admit the offence and agree to the conditions that have been chosen. Statistics from October to December of 2009 on conditional cautions from the Crown Prosecution Service show that 331 cases failed to comply with the conditions attached. As a result, 75% were prosecuted, 8% had changes made to the conditions attached and no further action was taken for the remaining cases. Simple CautionsUnlike conditional cautions, simple cautions do not need authorisation from the CPS and so they can be offered by the police.
A simple caution is not a conviction, however, it does form a part of an offender’s criminal record. The following must apply in order to be eligible to obtain a simple caution; – The suspect must be at least 18 years old- It is not in the public’s interest for the offender to be prosecuted- The suspect has admitted to committing the offence- The suspect agrees to accept the caution- If the offender were to be prosecuted, there must be enough evidence to produce a realistic prospect of conviction. However, the Criminal Justice and Courts Act 2015, Section 17 states that particular offenders are prohibited from obtaining a simple caution in the absence of exceptional circumstances regardless if they meet the above criteria. Both simple and conditional cautions will be revealed during Criminal Records Bureau (CRB) checks. Youth CautionsLegal Aid, Sentencing and Punishment of Offenders Act 2012, Section 135 states young offenders who are between the ages of 10-17 can seek a youth caution as an alternative to prosecution. A child or young person cannot be given a caution unless it is a youth caution or youth conditional caution. A youth caution and youth conditional caution remains on a child’s criminal record. An appropriate adult must be present when a youth caution is being given.
Once a youth caution has been given, the person must be referred to a youth offending team by a constable. Cannabis WarningsCannabis warnings were introduced in 2004 and are a non-statutory disposal. An offender who has committed a first possession offence is given a cannabis warning, a Penalty Notice for Disorder for a second offence and if there is a third offence they will be arrested. A person under the age of 18 cannot be given a warning. The Force Control Room (FRC) must be contacted by an officer when a cannabis warning is being considered.
A PentiP query must then be made by the FRC. A PentiP is used to find out whether or not a person has any previous National offending history. Penalty Notice for Disorder (PND)A Penalty Notice for Disorder was introduced by the Criminal Justice and Police Act 2001 as a statutory disposal and a time-saving solution. According to Criminal Statistics from 2009, in England and Wales 41% of PNDs were paid within the Suspended Enforcement Period (21 days). 47% of PNDs were registered for court enforcement action. An offender’s fine will increase by 50% if they fail to pay the full amount within the SEP.
Offences such as being drunk in a public area, dropping litter and making hoax phone calls are eligible for PNDs. These offences are most commonly known as disorderly behaviour. PNDs can be issued on the street or at a police station. A person who commits a lower tier offence must pay a fine of £60 and £90 for an upper tier offence. A penalty notice for disorder is not a conviction, however, if the offender plans to get a job, for example, working with children their PND may appear on a “Disclosure and Barring Service” (DBS) check. In my opinion I feel as though out of court disposals do serve their purpose in certain cases, for example, if we take the following case study into consideration; “Lily is going to be 90 next week.
She has been caught shoplifting in town. She had been caught with a photo frame in her handbag. When asked about it, she became very distressed. She said she might have stolen it, she could not remember anything these days. In fact, she could not remember that she had received a warning for shoplifting a month ago.” First of all, it would not be in the public’s interest to prosecute Lily as she is an elderly person. Secondly, Lily could have an undiagnosed illness, for example, dementia and therefore the offence was most likely no more than a genuine mistake.
Thirdly, prosecution could end up having a bad effect on Lily’s mental or physical health. As a result, I do not think Lily would be prosecuted, however, she could be given an OOCD. I think the most suitable out of court disposal in this case would be a Penalty Notice for Disorder. However, referring back to the statistics on conditional cautions from October to December in 2009 the OOCD did not serve it’s purpose as 17% of cases received no consequences even after failing to comply with the set conditions. The following case study example suggests that some out of court disposals are not always taken seriously, especially by young people. “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.” To support this further, data from 2010 shows that within 12 months, 18% of adults who had received a caution and 25% of youths that had received a warning and reprimand committed another offence. In 2012, 3% of offenders who received a caution had at least 15 previous cautions, convictions, warnings or reprimands. It is therefore evident that out of court disposals are not for everyone. Victim satisfaction is somewhat important and so it is crucial that a victim’s views are established by engaging with a police officer.
This allows the victim to express their views on the offence, the suggested method of disposal and the impact of the offence (any loss or harm made to the victim). According to the ‘Exercising Discretion: The Gateway to Justice’ study, 64 victims from selected cases took a survey which asked if they were satisfied with the out of court disposal. Out of the 64 participants, 53 victims said that they were satisfied, however, only 14 out of 22 victims were satisfied when the offender attended court. Re-offending rates vary on Restorative Justice studies and range from 6% to 22%. In 2008, the Ministry of Justice (MoJ) published a report stating; ‘.
..those offenders who participated in RJ committed statistically fewer offences (in terms of reconvictions) in the subsequent two years than offenders in the control group.’On the other hand, out of court disposals can be seen as unfair as some result in the defendant feeling pressured into admitting an offence that they did not commit. Some people believe “that the repeated use of out-of-court disposals for persistent offenders will reinforce or generate a feeling that a ‘soft option’ is being used, or that it is solely a money-saving option for the police.”