This article explains how the Ministry of Justice’s new bill will affect diversion and out of court disposals, and the Centre's hopes and concerns for this planned reform.
On the 9th of March, the Government introduced the Police, Crime, Sentencing and Courts (PCSC) Bill to Parliament. When it passes, this mammoth piece of legislation will bring change to many areas of the justice system. Much public and media attention has focused on new measures that fulfil Boris Johnson’s election pledge to ‘get tough on serious crime’. But within the 307 pages, are important commitments to more rehabilitative measures.
What are the implications for diversion?
The Bill will introduce a new framework for the statutory out of court disposals, streamlining the existing six tiers into two tiers. The upper tier, the ‘Diversionary Caution’, simply renames the current conditional caution. The new ‘Community Caution’ is the name for the lower tier, and will be an umbrella disposal for outcomes such as penalty notices for disorder and simple cautions. Crucially for diversion, underneath this statutory framework, Community Resolutions will remain as an informal disposal and we expect, based on conversations with the Ministry and NPCC, that most diversion schemes will sit within this.
The Centre’s hopes and concerns
We are pleased to see this ‘two formal plus one informal’ tier approach, and hope that community resolutions will continue in its current form as a police disposal, with no requirements for conditions or formal admission of guilt and with lesser criminal records consequences. As the evidence shows, out of court disposals are effective only when they scale down people’s contact with the criminal justice system.
That said, we do have some concerns about the proposals:
- The diversionary caution is a dumb name. The diversionary caution is, in effect, a conditional caution and it is not clear why they have renamed it. It is potentially confusing.
- As the lower tier statutory disposal, the community caution still requires a formal admission of guilt, which the Lammy Review identified to disproportionately restrict access to people from groups that tend to have less trust in the criminal justice system.
- The community caution makes no significant changes to the existing criminal record consequences of statutory out of court disposals.
- The requirement in the community caution to impose enforceable conditions could deepen contact between the person and the system, which the evidence shows is a risk factor for increasing offending.
It is unclear yet if these concerns will materialise into practice. If they do, we worry it would lead to inadvertent ‘net-widening’; increasing the amount of people in contact with the criminal justice system, or that it will simply replicate the existing system, where forces continue to provide informal diversion below the statutory framework.
We believe that clear Government guidance, that clarifies who is eligible for what and under which tier, has the potential to address these concerns. We have produced a briefing to support the development of this.
What is next for the Bill?
After successfully passing its second reading in Parliament, the Bill has entered the committee stage, where it will be scrutinised line by line, and changes to the wording can be made and new sections added. This will begin later in the year.