Policy paper

Reforms to the adult out of court disposals framework in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment

Updated 2 August 2023

This was published under the 2019 to 2022 Johnson Conservative government

Policy Summary

The reform aims to simplify the adult Out of Court Disposals (OOCDs) framework, to ensure consistency across Police Forces in the way low-level offences are dealt with out of court. The new framework will reduce the number of OOCDs from six to two in legislation. The new statutory two-tier framework is comprised of an upper tier disposal named the ‘Diversionary Caution’, and a lower tier disposal named the ‘Community Caution’.

The two statutory OOCDs will allow Police to attach conditions or actions to the disposal, meaning that the recipient is required to engage in some way with the outcome. This replaces the outcomes in some of the current OOCDs, which are warnings or cautions that require no action.

The changes emphasise the acceptance of responsibility for the offending behaviour by the recipient and enables the Police to refer individuals to support services, where relevant, as part of the conditions of the disposal. Referral at this early stage to relevant interventions services, such as substance misuse services, can help address the underlying causes of offending behaviour and help reduce reoffending or escalation of offending behaviour.

Background

OOCDs are an important tool in addressing early stages of offending behaviour. They allow the Police to deal quickly with low-level offending without making recourse to the courts. They can maximise the use of officer time – achieving a satisfactory outcome for the public whilst allowing officers to spend more time on frontline duties tackling more serious crime. They are also an opportunity to provide intervention and support to potential offenders at the early stages in criminal behaviour, diverting them into rehabilitative services to help reduce escalation of offending.

The current adult OOCD framework has developed organically and in response to different needs at different times. At present, there are six adult OOCDs, namely Community Resolutions, Cannabis and Khat Warnings, the Penalty Notice for Disorder, the Adult Simple Caution, and the Adult Conditional Caution. These cautions are a mix of statutory and non-statutory disposals. Some are simply warnings not to reoffend, whilst others allow the Police to attach conditions, such as compensatory payments to victims, or attending a rehabilitative programme. Currently, some Police Forces use two of the options, others use all six, and some have adopted a hybrid in between.

A joint government and Police review of OOCDs included a public consultation (PDF, 324KB), which ran from November 2013 to January 2014. This sought views from the public, as well as practitioners within the criminal justice system, including the Police, the judiciary, and the Sentencing Council. The consultation responses confirmed that the OOCD framework was in need of reform. In particular:

• Over half of respondents did not believe OOCDs deterred offending. As such, it was felt that there should be a framework with more meaningful and proportionate consequences, in essence, a move away from ‘warnings’ and ‘cautions’ to a system with stricter repercussions.

• Consultation respondents also felt that the current framework required simplification. It was seen as unnecessarily complicated, proving difficult for practitioners to implement and for the public to understand, thus reducing confidence in the justice system.

• It was felt that Police Forces and Police Crime Commissioners should be more directly accountable to their local communities for their use of OOCDs, with a more transparent system for explaining and justifying their operation of OOCDs, especially with cases of serious or repeat offending.

• Respondents felt there should be a greater focus on reparation to victims. For instance, Adult Simple Cautions were seen as ineffective, as they do not require an offender to make reparation for their actions. Conditional Cautions and Community Resolutions were seen as preferable, given they can involve the use of reparative conditions and potential use of restorative justice.

The joint government and Police response to the consultation was published in November 2014 (PDF, 409KB). It set out plans to reduce the number of disposals from six to two.

To take this forward, in 2014-15 we piloted a ‘two-tier framework’ in three Police Forces. The three forces only used two of the six disposals, Conditional Cautions and Community Resolutions, which ensured that all disposals included an action that was either rehabilitative, reparative, or punitive. This was intended to move away from common practice in most Police Forces that are heavily reliant on Adult Simple Cautions, which are warnings not to re-offend but have no conditions or follow-up actions attached.

Generally, the evaluation highlighted positive responses from Police, and victims welcomed the opportunity for engagement in the condition-setting process. However, it was noted that adequate time to implement change would be required to roll this out, allowing for frontline officer training and service-level agreements to be established with intervention providers.

In addition, a 12-month proven reoffending analysis looking at outcomes between the pilot and the counterfactual areas showed that there were no statistically significant differences between the pilot areas and the counterfactuals in relation to the likelihood of reoffending, the severity of reoffending, or the time taken to reoffend following a caution.

However, re-offending results may not account for variations in the effectiveness of individual conditions. We do not have this level of detail, and the interventions used were not consistent across the three pilot areas. It is ultimately the effectiveness of specific conditions which are most likely to impact on reoffending, rather than simply the creation of a new structure which enables condition-setting.

International evidence suggests that certain rehabilitative programmes (e.g. drugs, mental health, anger management initiatives) can reduce re-offending. For example, the meta-analyses quoted in a Cambridge University evidence review (PDF, 936KB) suggests that a mature OOCD framework that directs offenders to effective treatment programmes could have an impact on reoffending. More research in the UK around effective treatments for individuals will be of value.

The National Police Chiefs’ Council (NPCC) supported the move to a two-tier structure and published a strategy at the end of 2017 encouraging a voluntary move by forces to use only Conditional Cautions and Community Resolutions. All forces signed up to the strategy. Following this, some forces fully transitioned to the two-tier model, some remained in transition and others retained the full use of the six OOCD options. The MoJ continued to support this voluntary implementation of the two-tier model. We now look forward to formally implementing the new statutory two-tier framework. This will ensure that all Police Forces are using a consistent OOCD framework comprised of Diversionary and Community Cautions. Streamlining the OOCD options will bring national consistency, an opportunity for early intervention with vulnerable offenders, and a greater focus on victims.

Proposed Legislative Reform of OOCD Framework

Primary legislation has been introduced to establish two statutory OOCDs:

• The Diversionary Caution allows Police to set enforceable conditions within a specified time period. If breached, a prosecution for the original offence can be pursued. Conditions can be rehabilitative (e.g. engagement with mental health or substance abuse services), reparative (e.g. restorative justice process, formal apology) or punitive (e.g. a financial penalty, which is the only punitive condition available ). Receiving a Diversionary Caution forms part of a criminal record. Diversionary Cautions will be considered spent after 3 months, or, if earlier, where the conditions of the caution are satisfied.

• The Community Caution is intended for low-level offences and is spent immediately upon being given.

Following the implementation of this new two-tier framework, Police will only use the two statutory OOCDs, Diversionary and Community Cautions. Cannabis and Khat Warnings, the Penalty Notice for Disorder, the Adult Simple Caution, and the Adult Conditional Caution have all been abolished. Police may also choose to continue to use the non-statutory Community Resolution for low-level offences, as it does not require a formal admission. Fixed Penalty Notices are not within scope of this reform.

There will be restrictions on the use of the new OOCDs in relation to certain serious offences and on repeat use for the same or similar offences, which will be specified in secondary legislation.

In future, the Community Resolution could be used in certain schemes or pilots where circumstances or evidence suggests it would address issues of race disparity. As part of the implementation planning phase, we are expecting to see a revised Community Resolution policy from the NPCC, which will form part of the accompanying guidance on the use of the new OOCD framework, ensuring there is consistency in its use across all Police Forces.

In collaboration with the Home Office and Police, the MoJ are leading on a pilot called ‘Chance to Change’, which operates in two policing areas. This scheme does not require the offender to admit guilt, and this aims to test the effect of this approach with ethnic minority offenders. The evaluation of these pilots will help inform future policy.

In addition to the new framework, we also undertook a research study, to provide new insight into how Police use OOCDs to support adults with mental health and other health related vulnerabilities. This will enable government departments to work collaboratively to facilitate better policy and practice for effective working between Police, the NHS, and other service providers, and it will produce practical advice applicable for front line teams. The overarching objective is to help reduce reoffending by providing vulnerable offenders access to relevant health support at an early stage in their interaction with the criminal justice system.

Equality Duties

Under the Equality Act 2010 (PDF, 727KB), when exercising its functions, the MoJ has an ongoing legal Public Sector Equality Duty (PSED) to pay due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct under the Equality Act 2010.

• Advance equality of opportunity between different groups of persons who share a protected characteristic and those who do not.

• Foster good relations between different groups.

We also recognise that, as well as having an obligation not to directly or indirectly discriminate against disabled people, the MoJ as a service provider, has a duty to make reasonable adjustments for disabled people.

The payment of due regard to the PSED needs to be considered in light of the nine protected characteristics:

• Race

• Sexual Orientation

• Marriage/Civil Partnership

• Gender (sex)

• Religion or Belief

• Gender Reassignment

• Disability

• Age

• Pregnancy/Maternity

The main sources of information used for this analysis are:

• MoJ Criminal Justice Statistics Quarterly (December 2022)

• Office for National Statistics (ONS) Census 2021

• Data collected during the 2014/15 pilot

We have also consulted:

• The Lammy Review 2017

Affected Groups

The proposed change will have a direct impact on adults who commit first time or infrequent lower-level offences.

Under the reform, any offender who is eligible for an OOCD through the nature of the offence and circumstances of the offence, can be offered either a Diversionary Caution or a Community Caution.

The eligibility criteria has not changed from the current existing model.

It should be noted that these reforms are for the adult OOCDs framework only, so under 18’s will not be affected, as the existing Youth Justice OOCD framework will continue to apply.

England and Wales General Population

For the purpose of comparison, the table below shows the ONS 2021 population estimates for England and Wales, broken down by ethnicity, age, and gender.

Table 1: Population of England and Wales by ethnic group, Census 2011 and 2021^{[footnote 1]}

Ethnic Group	Census 2021 (percent)
Asian, Asian British or Asian Welsh	9%
Black, Black British, Black Welsh, Caribbean or African	4%
Mixed or Multiple ethnic groups	3%
Other Ethnic Group	2%
White	82%

Table 2: Adult population of England and Wales by age group, Census 2011 and 2021^{[footnote 2]}

Age Group	Census 2021 (percent)
18 to 24	11%
25 to 29	8%
30 to 39	17%
40 to 49	16%
50+	48%

Table 3: Population of England and Wales by sex, Census 2021^{[footnote 3]}

Sex	Census 2021 (percent)
Female	51%
Male	49%

Arrests

There were around 610,000 arrests of adults in the year to end March 2022.^{[footnote 4]} The tables below show adult arrests by ethnicity, age, and sex. Ethnicity data is based on self-identified classification.

Table 4: Adult arrests by ethnic group, year to end March 2022^{[footnote 5]}

Ethnic Group	Arrests (percent)
Asian	8%
Black	9%
Mixed	3%
Other	2%
White	79%

Table 5: Adult arrests by age group, year to end March 2022^{[footnote 6]}

Age Group	Arrests (percent)
18 to 20	9%
21+	91%

Table 6: Adult arrests by gender, year to end March 2022^{[footnote 7]}

Gender	Arrests (percent)
Female	15%
Male	85%
Other	<1%

Penalty Notices for Disorder (PND)

Approximately 9,300 PNDs were administered to adults in the year ending December 2022.^{[footnote 8]} The tables below break down adult offenders who received PNDs by ethnicity, age, and sex. PND figures for ethnicity are categorised using self-identified classification.

Table 4: PNDs given to adults by ethnic group, 2022^{[footnote 9]}

Ethnic Group	PNDs (percent)
Asian	10%
Black	9%
Mixed	2%
Other	2%
White	77%

Table 5: PNDs given to adults by age group, 2022^{[footnote 10]}

Age Group	PNDs (percent)
18 to 24	33%
25 to 29	19%
30 to 39	27%
40 to 49	13%
50+	8%

Table 6: PNDs given to adults by sex, 2022^{[footnote 11]}

Sex	PNDs (percent)
Female	17%
Male	83%

Cautions

Approximately 43,300 adult cautions were administered in the year ending December 2022. Of the 43,300 adult cautions given, 55% were Adult Simple Cautions and 45% were Conditional Cautions. The table below breaks down adult offenders who received cautions by ethnicity, age, and sex. Figures for ethnicity are categorised using officer-identified classification and as such are not directly comparable to self-identified figures as in the PND or population data. Caution should be exercised when interpreting this data due to the proportion of cases where ethnicity or sex is unknown.

Table 7: Adult cautions by ethnic group, 2022^{[footnote 12]}

Ethnic Group	Adult Simple Cautions	Adult Conditional Cautions	TOTAL Adult Cautions
Asian	6%	5%	5%
Black	8%	6%	7%
Other	2%	1%	2%
White	84%	88%	86%

Table 8: Adult cautions by age group, 2022^{[footnote 13]}

Age Group	Adult Simple Cautions	Adult Conditional Cautions	TOTAL Adult Cautions
18 to 24	23%	26%	25%
25 to 29	15%	15%	15%
30 to 39	29%	28%	29%
40 to 49	176%	176%	17%
50+	15%	14%	14%

Table 9: Adult cautions by sex, 2022^{[footnote 14]}

Sex	Adult Simple Cautions	Adult Conditional Cautions	TOTAL Adult Cautions
Female	22%	23%	22%
Male	78%	77%	78%

Comparison

The data above suggests that females account for just over half (51%) of the general population but are under-represented in PND and caution figures - accounting for 22% of adult cautions and 17% of PNDs in 2022 – although this is slightly higher than the proportion of arrests they account for (15% in year to end March 2022).

Ethnicity

It is difficult to make a robust comparison of the data given the issues raised around the proportion of cases where ethnicity is unknown and the different classification systems. Taking the data at face value would suggest that black individuals are more likely to be arrested and receive a PND or a caution when compared to their representation in the wider population. White individuals are slightly less likely to be arrested or receive a PND compared to their representation in the wider population, but are slightly over-represented in cautions, accounting for 86% of cautions in 2022 and 82% of the general population in 2021.

Age

Those aged 18 to 39 are over-represented in those given PNDs and cautions in 2022 compared to the proportion they account for in the general population, whilst those aged 50 or over are under-represented. The 40 to 49 age group accounts for a slightly lower proportion of PNDs (13%) than seen in the general population (16%), but a similar proportion of cautions (17%).

Other Protected Characteristics

We do not have enough information to consider the other protected characteristics.

Victims, Witnesses, and the General Public

The change should have a positive impact on victims.

Both of the new OOCD options will allow for swift reparation to victims. The new Code of Practice for the statutory two-tier framework stresses the importance of victims’ views in reaching resolutions and in achieving, where possible, restorative justice.

Possible conditions attached to Diversionary and Community Cautions, with direct impact and benefit for victims, will include reparative actions such as apologising, repairing or otherwise making good any damage caused to an individual victim, and compensatory payments to an individual victim, business, or community.

We are not able to identify by protected characteristics the victims or witnesses involved in the cases of these offenders. However, the Crime Survey for England and Wales for the year ending March 2020 showed that men and people from a non-white ethnic group were over-represented among victims of crime.

Pilot Analysis of Offenders and Victims

Data on the protected characteristics of the victims and offenders was collected during the pilot carried out in 2014/15. This data was limited to age, gender, and ethnicity.

The analysis only considers the likelihood of receiving a Conditional Caution rather than a Community Resolution. It does not address the likelihood of receiving a Conditional Caution rather than no disposal. Ideally, the model would have addressed the causal factors associated with an offender receiving a Conditional Caution, a Community Resolution, or no disposal. Unfortunately, no data was available relating to offenders who received no disposal, so this analysis was not possible.

Analysis of offender characteristics

A multivariate analysis was conducted to investigate which OOCD disposal an offender received in the pilot areas, modelling the likelihood of receiving a Conditional Caution rather than a Community Resolution, against a range of factors including offender age, gender, and ethnicity.

The key results worth noting are:

• Male offenders are more likely to receive a Conditional Caution than female offenders.

• Offender ethnic group is not associated with the type of OOCD received. While the analysis suggested other ethnic groups were less likely to receive a Conditional Caution than white individuals, this was not statistically significant.

• Age is associated with the type of OOCD received. Offenders aged 51-60 and aged 60+ are statistically less likely to receive a Conditional Caution than offenders aged under 20. However, the following age categories are more likely to receive a Conditional Caution than offenders aged under 20:

• 21 to 25 year olds

• 26 to 30 year olds; and

• 31 to 40 year olds.

• Offences flagged for domestic violence are more likely to receive a Conditional Caution than those which are not DV-flagged. This could be a reflection of the guidance to pilot forces, which stipulated that a Community Resolution was inappropriate for offences involving intimate partner domestic violence. There is no relationship for those flagged for hate crime in relation to which OOCD they were likely to receive.

Analysis of victim characteristics

As with offender characteristics, a multivariate analysis was conducted to investigate which OOCD disposal an offender received in the pilot areas – modelling the likelihood of receiving a Conditional Caution rather than a Community Resolution – against a range of factors including victim age, gender, and ethnicity and controlling for any previous receipt of an OOCD and current committed offence.

The key results worth noting are:

• Victim age is marginally associated with the offender receiving a Conditional Caution rather than a Community Resolution. Only victim ages of 31-40 and 51-60 are associated with lower odds of receipt of a Conditional Caution for the offence committed against them.

• The gender of the victim is not associated with the offender receiving a Conditional Caution rather than a Community Resolution, though receipt of Conditional Cautions is less likely where victim gender is unknown.

• With victim ethnicity, the ‘no data recorded’ category showed a statistically significantly higher likelihood of receiving a Conditional Caution than the reference category of ‘White’.

• Victim type was associated with type of OOCD. Offences involving individual victims were less likely to receive a Conditional Caution whereas offences committed where there was no identified victim were statistically significantly more likely to receive a Conditional Caution than the reference category of organisational victim.

• As with the offender model, DV-flagged cases were statistically significantly more likely to receive a Conditional Caution than non-flagged cases.

Further detail and the full results of this analysis on both offenders and victims is set out in Annex A.

Equality Considerations – Eliminating Unlawful Discrimination

Direct Discrimination

Direct discrimination occurs when a policy would result in someone being treated less favourably because of a protected characteristic. We believe that reforming the OOCDs framework is not directly discriminatory within the meaning of the 2010 Act, as it applies in the same way to all individuals regardless of their protected characteristics. It is the nature of the offence and the offender’s criminal record which determines whether it is appropriate to deal with the matter without recourse to the courts.

Therefore, no offender would be treated less favourably in relation to any protected characteristic as a direct result of this policy.

Indirect Discrimination

Indirect discrimination occurs when a policy applies equally to all individuals but would put those sharing a protected characteristic at a particular disadvantage compared to those who do not. We believe that reforming the two-tier OOCD framework may pose a risk of indirect discrimination within the meaning of the Equality Act, as explained below.

For both tiers of the statutory framework, the offender needs to admit guilt and agree to the particular OOCD in order for the offence to be dealt with outside the court process. This reflects the current status of most OOCDs, with the exception of Penalty Notices for Disorder and Fixed Penalty Notices, which do not require the offender to admit the offence but have a mechanism by which the offender can elect to have their case heard in court.

We know from the Lammy Review that some ethnic minority defendants have little trust in the criminal justice system or in the Police Officers at the Police station, which can lead them to offer a ‘no comment’ response interview or not admitting to the offence. This can result in an escalation of the matter by the Police, resulting in a prosecution.

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.

It is therefore important that in approaching this policy, we work to mitigate risk that this could be perceived to disadvantage anyone. We are, therefore, taking two important steps:

i. To undertake a full review of the forthcoming evaluation of, and collaborate with, Chance to Change pilot sites.

ii. Operate this policy in the context of criminal justice system scrutiny panels, with independent chairs, who should carefully consider any disproportionality in respect of race and OOCDs.

The Chance to Change model places less emphasis on admission of guilt and can divert offenders to intervention services. A full admission is not required in order for an offender to be diverted in this way, although outright denials are not allowed. Evaluation of the pilots will be undertaken.

All Police Officers already undergo mandatory training, which includes substantial coverage of ethics, equalities, self-understanding, hate crimes and policing without bias. The College of Policing, who set and maintain training standards for policing, published a Code of Ethics in 2014, which includes a set of principles for policing, including that all Police Officers and staff should take active steps to oppose discrimination and make their decisions free from prejudice. Despite the risk identified above, we consider that this change is a proportionate means of achieving the legitimate aim of creating an OOCD framework that provides consistency, simplification, and opportunity for engagement with intervention services. Overall, therefore, we do not consider that the policy change is likely to result in any unlawful indirect discrimination.

Discrimination arising from disability and duty to make reasonable adjustments

Related to the point made above on the requirements for an OOCD, it is important to ensure that individuals with disabilities (including those with learning difficulties or mental health issues) understand the implications of admitting guilt or accepting responsibility for the offence committed, and how they can comply with the conditions imposed on them. The current Code of Practice for Adult Conditional Cautions states that officers must have regard to the provisions of PACE Code C concerning mentally disordered or mentally vulnerable offenders and the use of an appropriate adult. This provision would be reinforced in the new Code of Practice.

In so far as this change extends to disabled people, we believe that the policy is proportionate, having regard to its aim. It would not be reasonable to make an adjustment so that those with disabilities are out of scope of the proposals, but it remains important to make reasonable adjustments to ensure appropriate support is given. We do not consider that any adjustments are required for disabled people over and above the ones already in place for those receiving OOCDs.

Harassment and Victimisation

We do not consider there to be a risk of harassment or victimisation within the meaning of the Equality Act as a result of this change.

Advancing Equality of Opportunity

OOCDs offer an opportunity to refer low-level offenders to relevant interventions services, such as health and substance misuse services, to address underlying factors that are contributing to offending behaviour. There may also be opportunities for referrals to mentoring and employment support opportunities.

OOCDs can help to divert first time and low-level offenders away from further contact with the criminal justice system and into meaningful and rewarding life choices.

These opportunities will apply, where available, to all recipients of an OOCDs. We therefore consider that these changes will help advance equality of opportunity.

Fostering Good Relations

In addition, we recognise that in order to build the trust of all communities, the Police workforce must better reflect today’s modern, diverse society. The Police Officer workforce is more diverse in terms of ethnicity and gender than ever before, but there is still much more to be done. The Home Office sought to recruit 20,000 additional Police Officers (over three years) by March 2023 and this recruitment drive has been fulfilled. As of March 2023, 20,951 additional Police Officers have been recruited from funding for the Police Uplift Programme^{[footnote 15]}. This recruitment drive provided us with a significant opportunity to attract a wide range of people into a career in policing and support the Police to achieve this aim.

We believe the policy aim of the reform the OOCD framework is a proportionate means of achieving our legitimate aim and that there will be positive impacts for victims and recipients of the disposals.

Continuing Analysis

The equality duty is an ongoing duty, and we will draw on any data that could provide evidence on the impact of this change.

1. Ethnic group, England and Wales - Office for National Statistics (ons.gov.uk) ↩

2. Age by single year - Office for National Statistics (ons.gov.uk) ↩

3. Population and household estimates, England and Wales - Office for National Statistics (ons.gov.uk) ↩

4. Excludes those aged under 18 and c. 500 cases of unknown age. Arrests open data tables, Police powers and procedures: Stop and search and arrests, England and Wales, year ending 31 March 2022 - GOV.UK (www.gov.uk) ↩

5. Ibid. Excludes c. 93,100 cases of unknown ethnicity. ↩

6. Ibid. Limited to adult age groups provided in the data tables. ↩

7. Ibid. Excludes c. 2,800 cases of unknown gender. ↩

8. Excludes those aged under 18, as well as 21 cases of unknown age. OOCD Data Tool, Criminal Justice System statistics quarterly: December 2022 - GOV.UK (www.gov.uk) ↩

9. Ibid. Excludes c.2,400 cases of unknown ethnic group. ↩

10. Ibid. ↩

11. Ibid. Excludes one case of unknown sex. ↩

12. Ibid. Excludes c.3,200 cases of unknown ethnic group. ↩

13. Ibid. ↩

14. Ibid. Excludes c.400 cases of unknown sex. ↩

15. Police officer uplift, England and Wales, quarterly update to 31 March 2023 - GOV.UK (www.gov.uk) ↩