Can the “Offender Pays” Model Help to Increase the Efficient Use of OoCRs?

By: Paul Kennedy, Strategic Advisor, Police and Technology

For: Policing Insight 26th November 2024

The use of out-of-court resolutions (OoCRs) by police forces in England and Wales is inconsistent, but some forces have recorded significant reductions in investigation times and improvements in outcomes; with costs sometimes viewed as a problem, police and technology advisor Paul Kennedy, and Josh Hartlage, founder of tech company AdventFS, explore the ‘offender pays’ OoCR model which could offer a viable solution.

The news is currently full of pressures within our criminal justice system, and a common claim is that the system is ‘broken’. Our prisons are so full that the Government recently announced an early release scheme, leading and tabloid newspapers reporting pictures of convicts saying: “Thank you Mr Starmer.”

Police officers across the UK will know how long it takes from the time of arrest to the time when a person faces trial, and the negative impact that such a lengthy time can have on victims and witnesses. It is also fair to ask, did the victim actually benefit from that experience of the criminal justice system?

The culture of policing has for generations been largely focused on arrest, followed by charge and then court. Legislation, police procedures, training, and culture are arguably geared towards that trajectory for offenders.

At a recent Cityforum Roundtable on transforming criminal justice, involving senior practitioners from a range of criminal justice agencies, leaders explored areas in which the criminal justice system in the UK could adapt and improve.

One such prominent topic involved out-of-court resolutions (OoCRs), formerly referred to as out-of-court disposals. These are used to varying extents by police forces across England and Wales.

An OoCR becomes feasible after an offender is arrested for an offence. If the officer in the case, acting in conjunction with the victim, is satisfied that an alternative exists to a charge and court appearance, then he or she can consider dealing with the case out of court.

That might include the offender undergoing some form of rehabilitation to address their offending behaviour, such as a face-to-face meeting with the victim or an online intervention programme to tackle, for example, anger management. It might also include an apology letter to the victim or some other form of reparation.

There are numerous strengths and weaknesses to the OoCR route which we will discuss, and one aspect that we would like to explore in particular; should the offender pay – or more precisely, should the offender meet the cost of the activity which is designed to deal with their offending behaviour?

It is a concept which to many may seem alien; but in reality, it is operating quite extensively already in the UK and in other countries too. Just consider for a moment, who pays for a driver awareness course after a speeding offence?

Merits of OoCRs

But first, let’s explore the merits of OoCRs. Can they be a golden ticket to transform and take pressure out of the criminal justice system? Is it the right approach for society and in particular for victims? Consider too, that 80% of jailed shoplifters reoffend within a year of their first offence, highlighting the limited deterrent of short sentencing.

As mentioned, OoCRs offer an early resolution and rapid closure for victims; the victim can also be involved in tailoring the resolution incorporating restorative justice elements. Rather than waiting months and years, victims may feel that their case has been taken more seriously and resolved more quickly, thereby elevating their trust and confidence in the criminal justice system.

There is also a shift in emphasis from punishment towards tackling offending behaviour, through for example a digital or face-to-face intervention programme. The programmes can address the underlying causes of offending behaviour such as substance abuse or anger management issues, as well as a lack of awareness of the impact of their crime. This educational component not only punishes but also rehabilitates offending behaviour. OoCRs also alleviate pressure on the wider criminal justice system, reducing the backlog of cases and benefiting not just policing but also other criminal justice agencies. This, however, is capable of being a blocker which we will come back to shortly.

Police officers frequently cite the volume of work they were being asked to undertake as a contributor to stress. Complexity does not necessarily mean that the investigations themselves have become more difficult to manage, but rather that the expectations and interactions they have with victims, and the procedural constraints imposed by local and government policy, are having a significant impact.

This has inevitably led to quantitative and qualitative overload and burnout within the office of constable (Kuschel, 2015); officers frequently cite the desire of the victim is over-ridden by local policy or procedure, thus leading to strain. OoCRs can potentially alleviate that strain.

Research indicates that 60% of crime in the UK could be described as ‘low-level’ crime, although we accept that this title must be used sensitively and with caution. However, that is a significant proportion of crime for which OoCRs offer an effective solution, resolving minor offences outside of the criminal justice system.

By diverting cases to alternative solutions, the police will be able to dedicate finite resources to the more serious and complex cases. This makes better use of public funds as well as police time and resources.

OoCRs are also more cost effective and cheaper than the traditional court process. Average court cases in the UK each cost in excess of £2,000; an intervention programme will cost in the region of £60. It is not only the police that will be freed up through greater use of OoCRs, but other judicial resources will be freed up too.

Opportunities exist for greater standardisation through the introduction of the Police, Crime, Sentencing and Courts Act 2022, which sets out a new two-tier framework for OoCRs, replacing the previously complex mixture of disposals, cautions and penalty notices. The framework is intended to bring transparency and consistency to their use across England and Wales.

OoCRs – negative effects

Some may argue that OoCRs are too lenient, that when a person commits a crime, punishment should follow; and as we suggested above, there is an argument that there is no such thing as a low-level crime – all victims are affected.

So OoCRs may not simply take pressure out of the criminal justice system, but rather extract public trust and confidence. Would an online course really act as a deterrent to an offender compared to the threat of a prison sentence or hefty fine?

Inconsistency could also be a barrier, and perhaps a postcode lottery might exist whereby an offender in one part of the country is charged and appears in court, while for a similar offence an offender in another part of the country receives an OoCR. We know that police forces are using OcCRs differently, and monthly volumes vary considerably between the police forces of England and Wales.

There are also significant challenges in implementing greater use of OoCRs and police forces report having to use more staff to help administer the end-to-end management of OoCRs. Finally, do OoCRs actually work? Where is the evidence that they actually reduce recidivism?

Evidence from policing

In 2019 a county constabulary analysed the number of investigations received per day over a four-week period. On average they received 237 crimes a day with a named suspect; more than 83% of the cases were triable either way.

The majority of those named as suspects either had no convictions or no more than three interactions with the police, and in most cases the gravity score for these investigations was three or below.

Using this data the force built a volume crime management model based on two tiers. This model invited officers to consider an alternative approach which would allow restitution to the victim while holding the offender to account.

This model embraced the use of OoCRs. The presumption of an OoCR for a significant portion of investigations was not out of kilter with victim expectations.

Over the following years the constabulary noted a number of benefits:

Investigation times decreased significantly.

Numbers for outcome 16 (suspect identified, victim does not support police action) decreased; victim satisfaction remained stable, but increased where compensation was an ingredient of the outcome.

The constabulary went from 42nd to 6th in the family of forces in its outcome rates in less than nine months.

The number of live investigations dropped.

94% of frontline officers reported a positive experience with the new regime and reported that it had reduced their levels of work.

OoCRs equated to 48% of the constabulary’s outcome rate.

So, there are a host of issues for and against the greater use of OoCRs and whether they should form a more prominent part of our criminal justice system. We argue that the benefits of OoCRs overwhelmingly support greater use by police forces.

Of course, cost is a major factor. Can police forces and other criminal justice agencies afford to pay for the rehabilitation of offenders? Also, bearing in mind the complexity of end-to-end management of OcCRs, can police forces invest in the technological infrastructure that will be required?

One possible solution is that the offender should pay for their own rehabilitation. As mentioned, driver awareness courses demonstrate that this idea is not completely new; in reality, many police forces are currently applying the ‘offender pays’ rule, albeit to varying extents.

Pay and politics

What about those who are unable to pay? Are we going to penalise those people who are the most marginalised in our society? It is an understandable argument but one which in our experience, is not really a live issue.

‘Offender pays’ is a model which is commonly used across the US, where the inability to pay $60 for an online course is a very rare occurrence; on such occasions, the cost can easily be met by the prosecuting agency or indeed the technology supplier.

Some UK police forces have dedicated hardship funds which are set aside for those people who can prove an inability to pay, but again, those occasions appear to be in the minority. So perhaps the debate is really a political one, rather than expecting police forces to grapple with the dilemma. The police must be allowed in our view to exercise the law impartially, to keep communities safe and secure the trust and confidence of victims in the criminal justice system.

The legislation mentioned above gives the police the vehicle to implement the new two-tier framework and to expand the use of OoCRs, where it is in the interests of victims. In our discussions with chief police officers, we hear a common plea that while there is an ever-increasing appetite for diversionary services, policing needs much more support from government, from police and crime commissioners and mayors, and also from wider criminal justice partners in terms of financing.

Why should police alone face the costs associated with OoCRs when the benefit will be felt by other agencies too? As we suggested, that worry could be a blocker; perhaps the cross-agency dilemma is one for local criminal justice boards to deal with.

Technology

For our part, what we can say is that the technology can be available at zero cost and to the extent that the offender pays for the OoCR, then the OoCR solution can practically be at zero cost to policing.

Of course, it is possible for police forces to utilise both an ‘offender pays’ and ‘agency pays’ model, side by side; clearly the latter will have a cost implication. The main argument we make here is that cost should not be a barrier to the greater implementation of OoCRs in order to tackle repeat offending.

Technology platforms also allow for the automation of the end-to-end management of OoCRs, including the automated ability to keep victims updated on progress, which is priceless in our view.

The technology is essential in order to track the compliance with conditions attached to OoCRs and to counter the need for people to be heavily involved in administration, which incidentally we are seeing in many police forces.

Each police force will need to measure the extent to which their OoCRs tackle recidivism, but the general evidence is that they are effective – certainly when compared to repeat offending after a custodial sentence.

Hopefully we have helped to elevate the debate on OoCRs and the benefits of diversionary activities in order to tackle recidivism, and perhaps also shine a light on the cost and technological opportunities which are currently available.

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