Police use of out-of-court disposals is in danger of getting out of control, magistrates warn today – urging the government to draft a list of offences for which the criminal justice measure can be used.

Out of court disposals are issued by the police for dealing with low-level or first-time offending where guilt has been admitted. However, in a report published today, the Magistrates Association said their popularity has led to a ‘rapid and largely uncontrolled expansion of their use that has not been accompanied by sufficient checks and balances’.

According to anecdotal evidence from magistrates who sit on scrutiny panels, out of court disposals were often used for people who repeatedly committed knife crime offences, even though the Sentencing Act 2020 imposes a six-month custodial sentence for ‘second strike’ offences.

The association submitted freedom of information requests to all 43 police forces on scrutiny panels – two did not have such a panel in place. ‘Given that public accountability and transparency is a major requirement of a Police and Crime Commissioner’s role, it was concerning that several of the 40 Office of Police and Crime Commissioners we also reached out to reported not knowing if a panel existed and, consequently, referred our FOI onto the police.’

The Police, Crime, Sentencing and Courts Act will introduce a statutory requirement to standardise a two-tier system whereby police can only administer either a community resolution, aimed at first-time offenders, or a conditional caution, aimed at tackling more serious or persistent offenders. However, the report says the act does not include any scrutiny requirements.

The report recommends that the Ministry of Justice and Home Office clarify that the courts administer justice except for a nationally agreed list of offences where out of court disposals can be used. The two departments should also conduct a national audit to accurately identify how out of court disposals are being used and scrutinised.

'Successive governments have promoted out of court disposals, and we accept that they can work well and be an effective tool in tackling certain crimes and behaviours. However, their popularity has led to a rapid and largely uncontrolled expansion of their use that has not been accompanied by sufficient checks and balances. By transferring increasing powers from the courts to the police, OOCDs threaten to undermine a central tenet of our criminal justice system: open justice. They cannot be allowed to get out of control,' the report concludes.