In the ‘old’ days, people would talk of the neighbourhood bobby giving a teenager a clip round the ear when they got into trouble. This police-led, ‘outside the court’ justice told a worrying tale of unregulated, informal police action, thankfully the days of which are over. But do we now face an equally troubling alternative, where the police no longer have the confidence to make the best use of their powers to divert cases away from prosecution? And is this change in police behaviour having a critical impact on our overloaded courts and overpopulated prisons?

Given the budget-cutting, cash-strapped economic climate of the justice sector, it’s somewhat surprising to see a recent decline in the proportion of offences being dealt with out of court. Conditional Cautions, Penalty Notices, Community Resolutions and Drug Warnings offer a localised form of justice that is quicker, simpler and far cheaper than formal prosecution. These measures formally deal with minor crimes, but avoid clogging up the courts with unnecessary cases whilst crucially diverting low-level offenders away from custody, towards more suitable justice responses. Any processes which avoid adding to the current epidemic of drugs, violence and debt in our prisons can surely only be a force for good?

Despite the apparent logic in using out of court disposals, police action on the street has been veering away from their use. Many offences which used to receive an out of court disposal are now being prosecuted through the courts. Shockingly, more than half of first time offenders now go to court rather than receive a caution, compared to 1 in 5 ten years ago. These figures have been met with deafening silence from police and practitioners alike.

A new report published by Transform Justice – Less is More: the case for dealing with offences out of court – explores the reasons for the decline in diversion. It seems a key reason is the operation of a ‘behind closed doors’ campaign by judges and magistrates against the practice. Their concerns over a ‘cautions culture’, in which police powers are unregulated and misused, contrasts with the transparency of an open court, where justice is both formally done and seen to be done. Lawyers have also been critical of the out of court disposal. Understandably, they suspect that, in the absence of legal advice, people faced with a police officer advocating for an out of court disposal may too readily admit to an offence they did not commit. There has also been considerable confusion surrounding government policy on the matter, alongside a total lack of funding for out of court initiatives. With no champions of the out of court disposal, it is likely that the police have reacted to these political signals.

Out of court disposals have also faced the cutting criticism of not commanding public confidence or satisfying victims. In fact, the public are no less confident in out of court disposals than in court processes and victims have reported feeling more satisfied. There are others who complain that diversion’s got out of hand, with too many serious offences or persistent offenders getting little more than a slap on the wrist, rather than being taken to court. The report, however, shows that almost half a million convictions last year resulted in low level penalties such as fines or discharges. Unlike some diversion measures, such sentences do nothing to rehabilitate offenders or compensate victims.

As long as there are proper safeguards, there’s a strong case for extending, not shrinking the availability of options for dealing with crime outside court. They should be accompanied by a suitable range of treatments, so that low-level criminals can receive help in addressing the underlying problems driving their offending. The National Police Chiefs Council’s (NPCC) latest strategy echoes this sentiment when it says that positive interventions with offenders and victims can be effective alternatives to prosecution or even prison sentences. Pilot programmes such as Operation Turning Point (OTP) in the West Midlands and Checkpoint in Durham have shown that rehabilitation can work at this stage in the criminal justice process. It’s also been shown to cut costs: OTP achieved a saving of around £1,000 per case, including all of the costs of the intervention programmes. This suggests the potential for diversion arrangements can kick start a justice reinvestment approach: we can use the savings that diversion brings to police, prosecutors and courts to fund local programmes designed to further reduce crime and prevent offending. This can help create the holistic systems approach needed to tackle the mental health, alcohol and drug problems which underpin so much offending behaviour.

The Transform Justice Report concludes by calling on Government ministers and criminal justice stakeholders to communicate the positive advantages of measures out of court and make efforts to show their benefits. Diversion tactics may play an especially vital role in diverting children and young adults away from the courtroom, giving them the time to grow out of crime. Diversion is not only more effective than sentences in reducing reoffending, but is superior on the grounds of efficiency, effectiveness and economy. With local courts closing altogether and resources limited, the time to reinstate the vitality of the out of court disposal amongst police and practitioners is upon us. Misconceptions must be pushed aside, with proper training and confidence reinstated in police officers so they can fully utilise this face-to-face form of justice. This would not only be to the benefit of victims and offenders, but is a necessary step in rebalancing the health of the UK criminal justice system as a whole.

Leanne Robinson holds a BA Human Sciences Oxon, and an MSc Criminology and Criminal Justice Oxon. She is currently a Research Assistant at Transform Justice.

Twitter Handle: @PenelopeGibbs2