Overview of Diversion and Discretion

“those involved in decision-making processes experience a considerable degree of mandated flexibility in the decisions … it is the day-to-day discretionary actions of police officers, prosecutors, defence lawyers, judges, psychiatrists, prison, probation and immigration officers, among others, which are the ‘stuff of justice’ and which make for justice or injustice”

1. No mandatory arrest in the UK so first discretion is in decision to arrest

   • Advantages: better use of resources to prosecute people worth prosecuting

   • Disadvantages: Inconsistencies

   • Padfield: Discrimination and Discretion are first cousins, not that far away

   • Discrimination at the first stage will continue all the way through the system

2. Next Step: Whether to charge or not

   • Same test as for deciding whether to prosecute or not (Full Code Test)

3. Final opportunity to exercise Discretion in sentencing (see Sentencing notes)

Types of out-of-court sanctions

• Rationale proposed by Lord Falconer (2006): “where the weight of evidence is against him or her, they should be given every opportunity to admit their guilt and allow the matter to be resolved quickly”

Simple Cautions

• No statutory basis, no formal role for CPS (except indictable offences)

• Officially recorded, can be cited in future decisions to prosecute

  • Part of criminal record and can be viewed by employers

• Guidance issued by Ministry of Justice (2013)

  • Aims are to “offer a proportionate response to low level offending where the offender has admitted the offence” and “deliver swift, simple and effective justice that carries a deterrent effect”

  • Simple cautions for indictable offences must be authorized by CPS

  • Requires evidential test (sufficient for prosecution) and public interest test (in the public interest not to prosecute)

  • “The views of the victim are important but are not conclusive. The decision to offer a simple caution lies with the police and/or the CPS who will take account of the views of the victim alongside wider public interest factors”

• Fixed Penalty Notices

  • Introduced for parking offences in 1950s

    • Later extended to more motoring offences and littering

• Penalty Notices for Disorder

  • Administratively issued, but might be used for serious offences

  • Introduced by Criminal Justice and Police Act 2001

    • Used primarily to combat anti-social behavior

  • Fine of 50 or 80 can be issued immediately, to be paid within 21 days or it would be increased one and a half times and eventually lodged with the Court

    • Can be issued on the spot or after arrest, only goes to court if denied

    • For disorderly behavior or other less serious offences

      • Retail theft of up to 200

      • Criminal damage of up to 500

  • ISSUE: doesn’t require a formal admission of guilt nor acquisition of a criminal record, police also not required to advice recipients that they may seek legal advice

    • Even though PNDs can be cited on future occasions (before the Courts or if the police are deciding whether to impose another PND

    • Since most do not truly understand the ramifications of PNDs, only 1% challenge them

• Formal Warnings for cannabis

  • Can be issued on the street, but cannot be used for juveniles

  • Frequently used for first-time offenders

Conditional Cautions

• Introduced by Criminal Justice Act 2003

  • Required Probation Service to help determine appropriateness (s26)

    • Does not help to free up resources in the Criminal Justice System, undermines the purpose of diversionary measures suggested in the Auld Report (2001) and Carter Report (2004)

    • Role of probation service was reduced by Offender Management Act 2007

• Requirements

  • Sufficient evidence for a “realistic prospect of conviction”

    • Unlike with simple cautions, evidential sufficiency is determined by CPS in this case

  • Effect must be fully explained to the offender

    • Legal advice usually available, but offenders may be distracted by the prospect of escaping Court and accept without truly understanding the nature of the caution

  • Offender must sign a document acknowledging guilt and consenting to the use of the conditional caution

• Originally required to include a rehabilitative or reparative condition

  • With the Police and Justice Act 2006, purely punitive conditions can be used

  • ISSUE (Baroness Anelay): deprives accused of the “fair trial safeguards and the involvement of the independent court in the delivery of punishment”

• If conditions are not met, CPS would usually prosecute for the original offence

• CPS Code of Practice

  • Conditional cautions are not meant to be part of a progression between simple cautions and prosecutions

  • Conditions should be issued with proportionality in mind

Gore and Maher [2009] EWCA Crim 1424

• 2 offenders beat up a young man and were given conditional caution on that night, which was later deemed inappropriate after reviewing CCTV

• They claimed abuse of process when police changed their mind and decided to bring a prosecution after all

• CA: “There was here no improper escalation of charge, nor any departure from any reasonable expectation that either appellant would not be prosecuted, if any more serious consequences of their conduct, and evidence justifying prosecution for an offence of violence came to light after the issue of the notice. The reality is that on the night in question the defendants must have been thanking their lucky stars that they got away with the serious violence they had perpetrated. It was not an abuse of process for justice to catch up with them”

• ISSUE: how can 2 sanctions be given for the same offence?

  • Can CPS/police be a player (in bringing prosecution) AND referee (when deciding on out-of-court sanctions) at the same time?

Youth Offender Panels (introduced 2002)

• Replaced magistrate courts for young people who plead guilty on a first time conviction

• Leads to the creation of a contract

  • Includes restorative (apologies to victims) and rehabilitative (community work or seeking alcohol/drug help)

  • If breached, case sent back...

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