The Mayor of London Office for Policing and Crime (‘MOPAC’) has released new guidance on the use of out of court resolutions (‘OOCRs’) for children in London.
Details
The guidance has been developed as part of MOPAC’s action plan on tackling Ethnic Disproportionality in Youth Justice and in particular aims to address disproportionality in accessing OOCRs by increasing the “appropriate and effective use of OOCRs for black children and minoritised children from over-represented ethnicities in the Youth Justice System” (page 2).
The document outlines the formal statutory and non-statutory OOCRs available (namely community resolution, youth caution and youth conditional caution) and encourages decision-makers to consider diversion as a first step in every case, noting that the principal aim of the Youth Justice System is to ‘prevent offending by children’ (CDA 1998) (page 13). The Guidance distinguishes these from the informal diversion options, which include Outcomes 21 and 22, and simple ‘NFA’ (no further action). However, even where these are not deemed appropriate, using a formal OOCR can prevent a child from becoming a first-time entrant by offering targeted support and avoiding premature contact with the criminal justice system. Where a child has previous convictions, cautions or OOCRs, this should not prevent them from being considered for future OOCRs. The context and seriousness of the offending and circumstances of the child are paramount in deciding whether an OOCR is appropriate.
Before issuing a formal OOCR, the police must be satisfied that (a) an offence has been committed; (b) the child perpetrator has been identified and (c) the child has either accepted responsibility for the offence, in the case of a community resolution, or admitted guilt in the case of a youth caution (“YC”) or youth conditional caution (“YCC”). The police must inform the YJS whenever a YC has been given and whenever they are considering a YCC. In addition, the Metropolitan Police are required to make decisions on OOCRs for any child with a pre-existing formal disposal through a joint decision-making panel, including the YJS and other partner agencies (while not obligatory in the rest of the country, joint-decision making is nonetheless best practice).This ensures that the best outcomes for children can be achieved and that the decision-making process is as informed and transparent as possible. To that end, the rationale behind each decision must be recorded on either the custody record or on the YJS file (page 15).
Section 5 of the guidance identifies what makes an effective OOCR and the benefits of receiving one, including the minimising of stigma and labelling, targeted support and a reduction in re-offending. However, at section 6, it identifies that a further barrier in issuing OOCRs is the lack of understanding by children and their families of what is involved and what the implications are. Practitioners and other agencies can therefore assist by ensuring that the child has been properly informed of what happens when an OOCR is given, what their options are in relation to it, the benefits and any implications for the child in terms of breaches, criminal records and so on.
Helpfully, the document provides separate and comprehensive considerations for each of the agencies involved. Guidance each of the following agencies is as follows:
- Guidance for the police is at page 21;
- Guidance for the CPS is at page 22;
- Guidance for solicitors is at page 23;
- Guidance for the YJS is at page 24;
- Guidance for social services at page 29;
- Guidance for magistrates/DJs is at page 30.
Even where an OOCR has not been offered at first instance, solicitors and other legal representatives still have the opportunity to submit written representations to the police, identifying why a particular child should be eligible with reference to (non-exhaustive): the context of the offending, youth and personal characteristics of the child, the Child Gravity Matrix, CPS guidance and any relevant statistics (page 23).
Comment
It is positive to see the data on the over-representation of black and ethnic minority children in the youth justice system taken seriously by MOPAC. It remains the case that these children are likely to receive harsher sentences than their white peers. It is also well known that contact with the criminal justice system generally leads to worse outcomes than diversion, and that children receiving custodial sentences have the highest reconviction rates (Youth Justice Board (2023) Youth Justice Statistics 2021/22 England and Wales). OOCRs provide a significant opportunity to change the course of a child’s life and offer support to them and their family, without stigmatising them through a criminal record and scarring them through the criminal justice process. The long-lasting damaging impact of court proceedings and formal prosecutions cannot be understated, and it is essential that the various parties involved in a child in conflict with the law’s life are aware of and confident about the options available for a child who has committed an offence.
In order for OOCRs to be fairly and effectively given, agencies must be willing and prepared not only to explain to the child and their family the benefits and potential impacts, but also to advocate on behalf of the child, and to continue to fight for OOCRs, where appropriate, to be given irrespective of the colour of the child’s skin. There are multiple opportunities for diversion and parties must be alive to the ongoing need to review to ensure that cases that could have been dealt with outside of court are not unnecessarily prosecuted.
For further guidance on Out of Court Disposals/ Resolutions, the Youth Justice Legal Centre will be publishing a legal guide in the coming weeks.
Written by
Violet Smart, Doughty Street Chambers