Exercising Discretion: The Gateway to Justice

The substantial growth in the use of out-of-court disposals has created some disquiet among criminal justice professionals over inconsistencies in their use, in particular for persistent and more serious offending. We found wide variations in practice across police force areas in the proportion and types of offences handled out of court. 

In view of the growth and wide variations in practice, and the consequences for offenders and victims as well as for public confidence in the criminal justice system, we believe the time has come to formulate a national strategy to improve consistency in the use of out-of-court disposals across England and Wales, and we have made this our primary recommendation. We hope that such a strategy will draw on the good practice identified in this report, promote understanding and reduce excessive variations and inconsistencies. The strategy should be based on what works to improve victim satisfaction, reduce re-offending and provide value for money. It should take into account not only the nature of offending and offenders, but how best to achieve transparency and reassurance for the public.

In making this recommendation, we are acutely aware of the challenge that a national strategy may increase the bureaucratic burdens of prosecutors and police officers. We do not believe that such increases are an automatic consequence of this recommendation. In contrast, there are more definite consequences to decisions about whether someone enters the formal criminal justice system or receives an out-of-court disposal: an individual’s chance of getting a job or travelling abroad can be affected, for instance, and there may be wider implications for public confidence. It is therefore imperative that the principles of openness and fairness are applied to the use of out-of-court disposals. This will necessarily rely on record-keeping, since confidence in a system of justice that is delivered outside the courtroom is dependent on the ability of police and prosecutors to publish information about their use, enabling the public to see how out-of-court disposals are managed locally. This record-keeping must be proportionate and can be based on existing systems.

Read the whole report.