Oral evidence: Out of Court Disposals, HC 799Tuesday 6 January 2015

Oral evidence, 6 January 2015.

Witness

Chief Constable Lynne Owens, QPM, Surrey Police, National Policing Lead on Out of Court Disposals, gave evidence.

Chair

Chief Constable, thank you very much for coming. You have heard the previous discussion and questioning of the Chairman of the Magistrates’ Association. Are you concerned about the number of out of court disposals or do you think we have got it about right?

Chief Constable Owens

I think it is important to put this debate in context. You have already touched on the fact that there were a higher number of out of court disposals some time ago than there are now, so perhaps to start with some statistics. At their height, which was in 2007, about 10% of all solved cases were dealt with by out of court disposals, so about 10% of the totality. Last year it was 4.8% and that has been a steady decline over a number of years[1]. Out of court disposals are a really important tool for the victim, the offender and in the interests of bureaucracy and therefore cost. I think what we have seen over a number of years is some real confusion, as I think Ms Blackwood said, because the system has grown up organically over time and there has been a lack of understanding, both publicly and indeed in my own organisation and other criminal justice agencies, about what disposal is most suitable in what case.

Chair

Do you think that police officers themselves are aware of this? You said that there has been a lack of knowledge. Should there have been much more understanding within the police service as to exactly when they can use these disposals?

Chief Constable Owens

I think the challenge is because it grew organically over time, different police forces took different approaches at different times. Sometimes forces use community resolutions, sometimes they use cautions, sometimes they use penalty notices for disorder, sometimes they use cannabis warnings, and now we have the addition of the conditional caution. That is a very complicated framework and one of the reasons that I am very interested in these pilots is because what they try to do is simplify that model that I hope will, but we are yet to find out, bring more consistency over time.

Chair

I am afraid we to have to vote now but we will return and continue with your evidence, so if you would excuse us. We will suspend the Committee until we are quorate. Sitting suspended for a Division in the House. On resuming-

Chair

We were hearing the evidence of Lynne Owens about out of court disposals. I think you had just finished your sentence. There seems to me to be something of a postcode lottery; different forces in England and Wales are doing different things as a percentage of the number of cases that they have. Do you feel that that is happening? If you look, for example, at Surrey and your out of court disposals for last year, are they up or down over the year before?

Chief Constable Owens

The out of court disposals of every force in the country are down. The whole country has had a downward trajectory for the last seven years, but I think you are right in your assessment that not every force operates in exactly the same way. It is why the pilots that we are running in three very different forces—Leicestershire, West Yorkshire and Staffordshire—are important, a small, medium and large size force, some with very diverse communities, some with less diverse communities, with all sorts of different crime problems. That will enable us to very closely look at and understand the different behaviours that might occur within a force. I am pleased that the Ministry of Justice has supported the pilots with some independent research so at the end of it we will have an independent company—I believe the contract has been awarded to Ipsos MORI—who will be able to give us some assessment of what the differences are, why they occur, and what works and what does not work.

Chair

But do you understand the public’s concern?

Chief Constable Owens

Absolutely. Public confidence is so key to us in policing. We have to police with the consent of the public and I do think that some of the very misleading headlines that are not based on fact but are based on some very high profile cases do impact on public confidence. That is why a system that is simpler, less bureaucratic and easier to explain has to be in the public interest.

Tim Loughton

On the mechanics of how these things are issued to the offenders, what information do the police provide to the person, because for some of them you have to volunteer to take those forms of caution? There have been cases in the past where people have taken on these cautions without realising the implications of them and in some cases, although they will not appear on their criminal record, they will appear in things like CRB checks, for example.

Chief Constable Owens

This is one of the complexities of the current system. Some of the disposals are statutory disposals where they do appear on a criminal record, so a caution would appear on a criminal record and would be disclosable. When that is given to an offender, they would sign to say that they understand that is the case. A community resolution, as is currently constructed, is a much lower form of disposal and that is not recorded and disclosed as a matter of course but it is disclosed if, for example, somebody wants to undertake a profession where they work with children or require some other type of enhanced disclosure. That is one of the things that we need to resolve through this process because I think that has led to cases where some people have accepted an out of court disposal whereas if they had understood the consequences they may not have done. There is already a process in place—it sits with the chief constables—where individuals can appeal disposals that they were given, either at the time or subsequently. I see cases over my desk where I have upheld the appeal because if an offender was being dealt with against today’s rules they certainly would have not been given a caution. In some instances it is for very young people and it is really affecting their life chances.

Tim Loughton

Can the offender appeal against it subsequently?

Chief Constable Owens

Again it depends which disposal you are talking about under the current structure. They can decline to accept a caution and if they do the case will be put to the Crown Prosecution Service and it is likely that the case will go to court. If they are given a fixed penalty notice they effectively appeal by not paying the fixed penalty and again that goes to court. If they do not accept a community resolution then we should not be awarding them. But the process for each disposal is different, which is why we think a different and simpler approach is necessary.

Tim Loughton

As an example, how do you accept a PND physically? Does it have to be signed for?

Chief Constable Owens

It is signed for, albeit that an offender can decline to sign it. In some instances they are given on the street and in some instances they are given in custody. If they are given in custody, fingerprints, DNA and so on are taken.

Tim Loughton

But some of the others can be accepted without being signed for?

Chief Constable Owens

Any offender can sometimes decline to sign if they wish to.

Tim Loughton

The point I am getting at is that there has been confusion in the past in that people have not realised that they have been served with these forms of notices and they only find out about it when it comes off on an CRB check for a job application, for example. I have had more than one constituent’s case of exactly that. There is a problem, is there not, hence my question, about the offender knowing exactly what he or she is letting him or herself in for and the process by which they should be notified of exactly the implications of them saying, “Yes, I accept that”, sign on the dotted line or not sign on the dotted line if there is not a dotted line to say on, or saying, “No, I don’t accept that. I want to have my day in court to be able to challenge it and prove my innocence”? That is all over the place, isn’t it, in terms of how different police forces choose to do it?

Chief Constable Owens

We are expecting that issue to be resolved through these pilot sites that we are running, because the guidance makes that clear.

Tim Loughton

What role does the College of Policing have in all of this? Is it advising on guidance or what?

Chief Constable Owens

The College of Policing works very closely alongside me and my team on the business area. They have been involved in writing the guidance and if the pilots move forward in their current construct or indeed, based on the evidence, something else then the College of Policing will help us rewrite the guidance and we will issue it to all police forces.

Tim Loughton

Do you think that ultimately we should and will move to a system whereby there will be very clear instructions as to how each of the six different variations of these out of court disposals are issued, whether you be in Cumbria or in Gloucestershire? It will be very clear to the offender as to what procedures they should be subject to in order legitimately to have been issued with one of these notices or be able to challenge it and that will be the same in any part of the country. Do you think we can achieve that?

Chief Constable Owens

In the new system there will not be six disposals; there will be only two. There will be a community resolution and a conditional caution that may be called a suspended prosecution. That in itself will make it simpler. The current intention is that if you get a community resolution it does not count on your criminal record but there will be a national way of managing and auditing that. I should stress that is not in place at the moment and it does come at expense. That is one of the questions that we will have to ask the Ministry of Justice and the Home Office at the time that the pilots conclude. Conditional cautions will be a criminal record and will be held on record, always disclosable. That is one of the areas that we will seek to clarify through the pilots. I do think that is achievable, yes.

Lorraine Fullbrook

What early feedback have you had from the pilots that are taking place?

Chief Constable Owens

Let’s just be clear, they only started on 1 November, so it is very early findings. They were live across the whole of Staffordshire and the whole of Leicestershire as of 1 November and West Yorkshire are going for a slightly smaller rollout on the basis that they are a big force and therefore they need to test the implications as they go. The early feedback from officers, the CPS and victims is good but I would claim no more than that at these very early stages. What is going to be really important is the independent analysis that will take victim views, offender views and have a look at reoffending and cost, albeit that we will not get those after just one year because, of course, reoffending sometimes takes a longer period of time than that.

Lorraine Fullbrook

How do you think the scrutiny panels have helped to improve the system?

Chief Constable Owens

I think the scrutiny panels are key to community confidence. I heard questions asked earlier about how they are constituted. This Government’s intention was for more localism so it is almost inevitable that different police and crime commissioners have suggested different structures for their local panels. My view is that it is good to have a victim’s voice on that panel in some way, whether they be victims themselves or through Victim Support or other voluntary organisations. All of them involve the magistracy and some police representatives. Some of them include laypeople, some of them include the police and crime commissioners or the police and crime commissioner’s office. But what they will enable us to do over time is deal with consistency issues and identify if there have been instances when out of court disposals should not have been issued and to provide that learning or feedback to the officers involved.

Lorraine Fullbrook

Presumably as these scrutiny panels are rolled out, that will come to light in each region?

Chief Constable Owens

Absolutely right, yes.

Dr Huppert

Chief Constable Owens, it is good to have you back here. Can I ask you about some of the evidence? Has there been anything more detailed or more recent than the June 2011 joint inspection, or is that the most recent?

Chief Constable Owens

That is the most recent inspection, albeit the HMIC did look at out of court disposals in their most recent crime data integrity inspection. The consultation that was referred to earlier was a consultation that was done on the back of a review that chief police officers did alongside the Home Office and the Ministry of Justice on cautions. That broadly found that cautions in most instances were given appropriately but that the whole out of court disposal framework was complicated and bureaucratic, and that is why we have got to a place now where we have the pilots.

Dr Huppert

The inspection does have some very interesting comments. It talks about many police officers exhibited patchy knowledge of the range of disposals. Is that still the case?

Chief Constable Owens

We completely accept that that is an issue. There are six disposals that have evolved over time, which is why we are keen to see these pilots and see whether they can make something a little simpler for the frontline officers so that we do apply it in a more consistent way across the country.

Dr Huppert

There are process issues in the number of options to choose between. I would also be interested to understand how much police officers understand what the consequences are of each. That inspection looked at a bizarrely small number of 198 cases—I don’t know why it was quite so small—but they found for reoffending rates, for example, substantially the lowest for restorative justice disposals. I would be interested to know how many police officers realise that the evidence, at least there, is that is the best way of reducing reoffending. Similarly, they found the vast majority of victims being satisfied or extremely satisfied with the out of court disposals more so for conditional cautions and simple cautions and so forth. Do you think police officers realise the consequences of the decisions they are making in terms of victim satisfaction and reoffending rates?

Chief Constable Owens

The victim satisfaction point is a very interesting one. When we look at restorative justice—and we have done some very detailed work in Surrey looking at youth restorative justice—what we find there is that the victim satisfaction tends to be higher than if the case has got a caution or indeed gone to court. That is because the victim is very much involved in the process by which the offender is dealt with. Could I categorically tell you that every frontline officer understands those consequences? No, I would be naive to do that, but I do think that if the pilots prove to be successful we will be able to use frontline officers and staff to roll that out to the rest of the country. I should stress that many of the ideas that we have included in the pilots, as well as coming from victims groups and those that deal with offenders, have come from frontline officers and staff, and broadly the feedback from them has been very positive.

Dr Huppert

Your comment about restorative justice being popular with the victims fits with the research by Larry Sherman at the University of Cambridge, for example, which I am sure is not a surprise. What are you going to do to try to increase the number of police officers who realise that restorative justice is the most successful at reducing reoffending and is the one most liked by the victims?

Chief Constable Owens

One of the things that we are going to have to test through these pilots is the mishmash of solutions that are currently out there by which we can deal with offenders. Some local areas have a very good level of investment in restorative justice and other diversion programmes for offenders, and other areas have less. The police and crime commissioners have a statutory duty to consult on the community remedy. Many of them have published the list of things that are available. What we are concerned about in policing is actually just what exists in communities to be able to service that demand. Through the pilots we will understand what works and what does not work, with a view hopefully to be able to influence the debate about what is procured very locally to deal with offenders.

Ian Austin

We heard earlier that out of court disposals are being used on some occasions for serious offences like rape, burglary or violent assault and on some occasions for repeated burglaries or repeated robberies. I think the public would be staggered to discover that that is happening. Do you think that is an appropriate use of these measures?

Chief Constable Owens

Can I break down the question into two halves? There is a question about seriousness and a question about repeats. On the question about seriousness, just to take you back to the figures I quoted earlier, at the moment only 4.8% of the totality of cases are dealt with through out of court disposals. If you look specifically at cautions, only 0.2% of robberies are dealt with out of court and only 2% of sexual offences. Like you, when I hear the phrase “sexual offence” I imagine a stranger rape and, like you, I would agree that those sort of cases should never be dealt with out of the court, but when you look at the detail—and I have one that I have brought with me from my own force that went to our scrutiny panel and was approved by our scrutiny panel. A 17 year-old boy was walking home with a friend he had met and had known for a period of time, who happened to be an older au pair. On the way home he touched her breast and she rejected his advances. She was really upset by the incident so she reported it to police. She absolutely did not want to go to court. She felt he had misread her signals and he had indecently assaulted her but she did not want to support a prosecution. However, we were concerned that he did not properly understand boundaries and therefore we dealt with him through a restorative process. That would count as an indictable offence that has been dealt with out of court but in those circumstances, where there has been no previous history and no offence since, it would seem to be entirely right.

Ian Austin

I don’t think anybody is going to argue with you about that, but how could you have a case of rape?

Chief Constable Owens

Rape is another very good example. If you have a 15 year-old girl who has a sexual relationship with a 16 year-old boy and that offence is reported to the police by a school friend or by social services and neither the victim nor the offender nor their parents are willing to support a prosecution to court, it is sometimes in the best interests of the victim and the offender to get them to work with social services to try to prevent that young lad ever offending that way again. That is recorded as a rape because no consent can be given when the victim is under the age of consent, but in those circumstances I think we would find it hard to argue that that case should be prosecuted to court.

Ian Austin

Do all the cases of rape that have been disposed of in this way fall into that sort of category?

Chief Constable Owens

They do not all fall into that category but we are now, through my office, looking at every single case that the numbers are—

Ian Austin

But you are confident that they can all be explained in that sort of—

Chief Constable Owens

I am not confident they can all be explained in that way, but the numbers that can’t are very small and we highlight those individual cases for chief constables and they deal with them appropriately.

Ian Austin

The other thing I have been struck by is this issue of domestic abuse. Here the figures on domestic abuse are not in line with the general figures that you have given us, because community resolutions for domestic abuse have gone from under 1,400 in 2009 to almost 3,500 in 2013. How can that be appropriate?

Chief Constable Owens

Let’s be clear, domestic abuse is a most abhorrent crime. We know that it takes great bravery for survivors of domestic abuse to come forward, but there are two points to make. The first is that that title “domestic abuse” does not always only cover parental relationships. For example, it does cover a mother who might call us because she has a son with a mental health difficulty who in the heat of an argument assaults her. What she does is ring us because she wants some help to deal with his mental health capacity issues. We have to record it as a crime because a crime has been committed, but in many instances that mother may not want to see her son put through the criminal justice process. She will want support from another sector and as long as we can be confident that we have got that, that is an appropriate disposal. Equally there are some instances where victims, despite every effort that we can put into persuading them, the support they might get from the voluntary sector, simply do not want to attend court and sometimes—very rarely—it is better to give an out of court disposal than to do nothing, particularly if we can build restorative justice within it. We are very closely looking at the issue of domestic abuse through the pilots because we expect those cases to be very rare, if at all, and we hope, in the assessment that we do, to be able to work with victims groups to understand the very rare circumstances in which that might be the right course of action. But I stress that we would see that being rare.

Ian Austin

Based on your knowledge of this so far, what proportion of the getting on for 3,500 would fall into this category of a child with a mental health problem assaulting a mother? Is that the general?

Chief Constable Owens

I would not want to guess. It is why the pilots are so important because at the moment there has not been that level of scrutiny in every individual case for out of court disposals. We are now looking at every single case that is disposed of out of court in those three force areas, so that allows us to understand the question you are asking in much more detail than we currently do. The scrutiny panels play a key role in domestic abuse. If you look across the country, most scrutiny panels are receiving all indictable offences and any case of domestic abuse so that they can look at the circumstances locally and provide advice to their chief constables, their police and crime commissioners and their local criminal justice boards about whether the disposals in those cases are right. All I joined policing for is to protect victims. That applies more in domestic cases than anywhere else and that is what drives most frontline officers and staff.

Ian Austin

There was just one final question. I think I interrupted you before.

Chair

Mr Austin, you have many final questions. Could this be the final one, please?

Ian Austin

I know, but I am afraid I interrupted.

Chief Constable Owens

Repeats?

Ian Austin

Yes, exactly on repeats. Sorry.

Chief Constable Owens

You raised seriousness and the second part was repeats. We are very clear in our current guidance for the pilots that it is an escalatory process. You should have one community resolution, one suspended prosecution/conditional caution and then you should go to court. We are not sure whether that will be workable because we know at the moment effectively we are putting six disposals into two disposals. So we are not sure whether that will work, but that is one of the things that we are testing.

Chair

Moving off the subject—and I will come back to Mr Ellis in a moment—to the diversity issues in the police force. You are a role model in the police as being one of the most successful women chief constables. Have you managed in Surrey to promote a good number of women in ethnic minorities while you have been chief constable?

Chief Constable Owens

I would not claim that to be my biggest success, if I am honest, Mr Vaz. There are lots of reasons for that, the first being that we are downsizing as organisations at the moment so the numbers of opportunities that we have available to us are diminished from what they have been previously. We currently have a recruiting campaign for officers and I am quite keen that in policing we take a different approach to entry to that which we might previously have taken. In Surrey historically we have relied on the Certificate in Knowledge of Policing and required people to take that before they join us, and I am slightly concerned that that is—

Chair

Do you think that is a barrier? We have taken evidence from the College of Policing and we are publishing a report on this. Do you think the £1,000 or so that people have to pay is a barrier?

Chief Constable Owens

I think it could be a barrier and therefore it needs to be one route but there need to be other routes too. We know that there are direct entry schemes and fast track schemes, but I think we need to do more work with those who we currently have in service so we have—

Chair

But you insist on the certificate before they join Surrey, do you?

Chief Constable Owens

We do at the moment. I do not think that will be sustainable on its own in the long run. I would like to see a way of converting special constables and those who are currently in police staff or volunteer roles. If you look at people in those roles, they represent a far broader cross-section of the community than those who naturally join and maybe come from white middle-class parents who can afford for them to do the CKP.

Chair

When you joined the police force—and you have had a very distinguished career—there were not that many women chief constables about and the issue of diversity was not at the forefront of people’s minds but it is now, I think. Are you confident that things are moving in the right direction?

Chief Constable Owens

There is an absolute determination, I think, from within policing to move us in the right direction and it is taking us longer than it should do.

Chair

Mr Winnick has a supplementary on this and then Mr Ellis will close.

Mr Winnick

Excuse my absence. I was involved in the debate downstairs that led to a vote. Chief Constable, I have a brief about your position, as one would expect, but it does not mention when you actually joined the police force.

Chief Constable Owens

I joined the police force in 1989.

Mr Winnick

Has there been a change of attitude that you could—

Chair

Mr Winnick, I am going to have to stop you because the bell has gone. We will have to write to you on this, if we may, rather than keep you another 10 minutes while we go and vote. Thank you very much for coming in. If you don’t mind, we will write to you on a number of issues. That concludes the session. Oral evidence: Out of Court Disposals, HC 799 16 [1] Note by witness: I wanted to clarify a point that I made during the hearing which related to the proportion of Out of Court Disposals. During the hearing I gave the correct figures of 10.8% in 2007 and 4.8% in 2014. However, I inadvertently referred to these as percentages of all solved cases when in fact it should have been a percentage of recorded crime cases. The figures themselves remain correct and the downward trajectory is entirely accurate.