The Magistrates’ Association today published a report cautioning that out of court disposals (OOCDs), which allow the police to deal with low-level and some first-time offences without recourse to the courts, threaten to undermine open justice and are in urgent need of reform. It is the latest in a string of concerns raised by magistrates, charities, and parliament about the use of OOCDs.
Based on a literature review, consultation with sitting members and freedom of information requests, the report reveals that the use of OOCDs has expanded haphazardly and without appropriate oversight and scrutiny. This, the membership body for magistrates in England and Wales claims, has resulted in a troubling and largely unchecked transfer of power from the courts to the police.
Published ahead of implementation of reforms under the Police, Crime, Sentencing and Courts Act 2022, the report makes seven recommendations to the Ministry of Justice, Home Office and police that the Magistrates’ Association believes will help ensure greater consistency in the use and scrutiny of OOCDs and, so, strengthen open justice and bolster public confidence in the system.
Postcode lottery justice
OOCDs, such as conditional cautions, fixed penalty notices and community resolutions, can be a useful tool for the criminal justice system, reducing court backlogs and giving first-time offenders the opportunity to avoid a declarable criminal record. However, the report finds that police forces across England and Wales are using them inconsistently, creating what the Justice Select Committee previously coined a ‘postcode lottery’ of justice. It also raises concerns about the type of offences for which OOCDs are being pursued. Although aimed at low-level offending, they are increasingly being administered for more serious offences, such as domestic abuse, knife crime and hate crime.
One of the fundamental principles of our criminal justice system is that justice must be seen to be done. While courts hear cases in public, with anyone able to observe and report on proceedings, OOCDs are administered behind closed doors. Most police forces have sought to overcome this lack of transparency by establishing scrutiny panels that meet regularly to review the appropriateness of a sample of locally administered OOCDs.
However, this is not a statutory requirement and at least two of the 43 police forces that received a Magistrates’ Association freedom of information request confirmed no such panels exist in their area. The organisation’s research also reveals that just two scrutiny panels in the whole of England and Wales are attended by members of the public and that the majority of police forces do not share the results of their panels publicly.
Mark Beattie, National Chair of the Magistrates’ Association, said:
“These results demonstrate a disturbing lack of national consistency of scrutiny by police and crime commissioners nationally for a substantial level of criminal justice administration. The increasing number of serious offences dealt with by OOCDs seems to be developing unchecked. There needs to be a national review by government and the senior judiciary to ensure the OOCD system operates in the interests of justice with proper transparency and accountability, and that it does not fly under the radar of good quality justice.”
The report additionally recommends that a national body is established to ensure consistency of OOCD practice, and that nationally comparable data from each police force is published quarterly.
Read the full report.