The existing framework of out of court disposals, used when it is not in the public interest to go to court, has been described as ‘unwieldy’ by the government which is now proposing a ‘simplified, strengthened two-tier framework’.
An open consultation into the diversionary and community cautions: draft code of practice was opened this week.
Justice minister Damian Hinds said the code once finalised will provide ‘operational guidance on the use, administration and scrutiny of the new cautions’. It is expected that police, crown prosecutors and other authorised bodies will use the code when considering sanctioning an offence out of court.
The code states that, for both tiers, the offender needs to admit guilt and agree to the particular out of court disposal (OOCD) in order for the matter to be dealt with outside the court process.
The new framework abolishes the adult simple caution, the adult conditional caution, penalty notices for disorder and cannabis and khat warnings. The cautions must have at least one rehabilitative and/or reparative condition attached to them.
The code ‘places greater emphasis on individual case-by-case decision making’. Excluded offences include sexual offences against children, sex trafficking offences, offensive weapon and bladed article offences, carrying a firearm in a public place, child cruelty, indecent and pornographic images of children offences and class A drug offences.
The consultation acknowledges the Lammy review and its findings that some ethnic minority defendants have ‘little trust’ in the criminal justice system or in police officers.
It adds: ‘There is therefore a risk that the requirement to accept responsibility or admit guilt would mean individuals from an ethnic minority would be less likely to receive an early intervention via an OOCD and would be more likely to be prosecuted. The public consultation will ask about equality considerations.’
Law Society vice president Nick Emmerson said: ‘Having more consistent use of non-court disposals in situations approved by parliament for their use is in principle a good idea. If in some areas this leads to more people being prosecuted who are currently being cautioned, this will inevitably have an impact on the courts backlogs, and there are serious questions as to whether the criminal justice system has the capacity to cope.'
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