Use out-of-court disposals: section 1 case management guidance

Published 15 October 2014

1. Introduction

This guidance explains how and when to use out-of-court disposals to prevent offending by children and young people. It is for youth offending teams (YOT) and managers.

Read Youth out-of-court disposals: guide for police and youth offending services for more information. It is produced by the Youth Justice Board for England and Wales (YJB) and the Ministry of Justice, and is endorsed by the Association of Chief Police Officers (ACPO) and the Crown Prosecution Service (CPS).

2. Guidance for workers in YOTs

The police have a range of options to deal with any offence committed by a child or young person:

  • no further action
  • Community Resolution
  • Youth Caution
  • Youth Conditional Caution
  • charge

2.1 Assessment

To help decide the most appropriate out-of-court disposal for a child or young person, you should first undertake an assessment. This covers:

  • the likelihood of the child or young person complying with the disposal
  • whether that would be the best way to reduce their risk of reoffending

You must complete your assessment of the child or young person within 10 working days of referral. All assessments must be concluded, and the police informed, within 15 working days from the date of bail in order to minimise delay in decision-making.

Following a first Youth Caution, the police must inform you that the Caution has been given. For any Youth Conditional Caution, and second or subsequent Youth Caution, you have a statutory duty to assess the child or young person’s needs and arrange an intervention programme aimed at preventing re-offending.

You should use the AssetPlus framework to assess the needs and risks of children and young people. You can make the framework specific to out of court cases by selecting the ‘referral in Prevention’ or ‘referral in out-of-court disposal’ options at the Assessment stage of AssetPlus. The data can then be retained for use if the child or young person goes on to offend.

The AssetPlus process will:

  • assess the risk and protective factors effecting the likelihood of reoffending
  • assess the potential risk of harm the child or young person poses to the public
  • determine whether an intervention programme is necessary, and if so, the nature and content of that programme
  • explore the child or young person’s attitude to intervention and assess and encourage the likelihood of him or her engaging with an intervention programme
  • explore with the child or young person the possibility of their participating in a restorative justice process

2.2 Bridging guidance

Before the introduction of AssetPlus, and during its phased implementation, you may be using the old Onset or Asset tools for work with children and young people given out-of-court disposals. You should continue to use these until you have AssetPlus in place.

If you are assessing a child or young person who is being considered for an out-of-court disposal for an offence listed in Schedule 3 of the Sexual Offences Act 2003, you should explain to the child or young person and his or her parents the implications of the notification requirements in that Act.

2.3 Triage

The term ‘triage’ describes the process by which children and young people can be diverted away from formal court or out-of-court processes, and dealt with through informal measures. Offences with a gravity score of 3 or below, or with a higher gravity score and mitigating factors, should always be considered for diversion.

The triage process can apply to first offences, and also to low gravity offending amongst children and young people who have already received a formal disposal, if the assessment indicates that diversion is the most suitable outcome. If a child or young person has been through the triage process before and re-offends, an out-of-court disposal or charge will usually apply.

There circumstances when a diversion may be offered as a repeat option are:

  • if two low gravity offences have been committed in a short timeframe, and you have not yet offered diversionary support to the child or young person
  • if the second offence is a considerable time (over six months) after the initial offence
  • if the second offence, though also low gravity, is of a different type than the first

Inappropriate repeat use of triage may reduce its effectiveness as an intervention so a manager should sign off the decision to repeat it. In all triage assessments, individual circumstances should be assessed, and factors such as immediate admission of guilt, remorse and willingness to engage in preventative support should influence a decision to divert. Triage decisions to divert the child or young person away from formal disposals are recorded by police as ‘no further action’.

2.4 Bureau (Wales only)

Some YOTs in Wales operate an alternative system known as Bureau, which includes a community member appointed by the YOT, with the police officer and case manager, to take the decision on the most appropriate outcome for out of court disposals.

2.5 Community Resolution

For offences with a lower gravity score, it may be appropriate to deal with them by way of Community Resolution – i.e. no formal Caution is imposed. Community Resolution is the term for the resolution of a minor offence or anti-social behaviour incident through informal agreement between the parties involved, as opposed to progression through the traditional criminal justice process.

It enables the police to make decisions about how to deal more proportionately with low-level crime and is primarily aimed at first-time offenders where there has been an admission of guilt, and where the victim’s views have been taken into account. Community Resolution should be delivered using restorative processes.

In these cases, it is not mandatory for the police to inform you that a Community Resolution has been given as an outcome. However you may wish to set up a local protocol to be informed of all such outcomes, in order to offer voluntary preventative intervention. You are more likely to get consistent communication from the police if you can reduce the bureaucracy for the process of informing you.

When asked to assess any child or young person for suitability for an out-of-court disposal, you should always ask for a check to be made on whether any prior Community Resolution has been given. This will help to inform the outcome of the assessment.

2.6 Youth Caution

A Youth Caution may be given by the police for any offence where the child or young person makes a full admission, there is sufficient evidence for a realistic prospect of conviction but it is not in the public interest to prosecute. Youth Cautions aim to provide a proportionate and effective resolution to offending and support the principle statutory aim of the youth justice system of preventing offending by children and young people.

For a first Youth Caution the police can decide to give a Youth Caution before referring the child or young person to you, although they must notify you that a Youth Caution has been given. Voluntary conditions may then be added, to engage the young person with support to reduce the likelihood of re-offending.

For any second or subsequent Youth Caution the police must refer the child or young person to you for an assessment, which will inform a joint decision between the Police and yourselves that decides on the most appropriate course of action.

The interventions attached to a Youth Caution are not conditional and there is no separate penalty for failing to comply with them, however failing to comply with this intervention can be cited in any future criminal proceedings.

Children and young people must be accompanied by an Appropriate Adult, whenever possible a parent or carer, when the Youth Caution or Youth Conditional Caution is administered. If the child or young person is in the care of the local authority, a representative of the organisation providing the care should attend as Appropriate Adult, and a social worker from the local authority is a suitable alternative.

Children, young people and their parents/carers or other Appropriate Adults should have access to information about the options available, including Youth Cautions, so that they can make an informed decision before the question as to whether they admit the offence is put to them. For instance they should be aware that the explicit consent of the recipient is not required to give a Youth Caution.

Under no circumstances should anyone suggest that a child or young person should admit to an offence to guarantee receiving a Youth Caution.

You should also explain the status of Youth Cautions, including:

  • that a record of the Youth Caution will be kept by the police
  • that the under the Rehabilitation of Offenders Act 1974 the Youth Caution will be considered “spent” immediately but that it may be disclosed to employers in certain circumstances
  • that it can be cited in criminal proceedings
  • that a Youth Caution given in relation to an offence in Schedule 3 to the Sexual Offences Act 2003 will require the child or young person to comply with the notification requirements in that Act

2.7 Youth Conditional Caution

The eligibility criteria for a Youth Conditional Caution is the same as for a Youth Caution, with a full admission of guilt being required. In the case of Youth Conditional Cautions however, you and the police should agree on a compulsory assessment and package of interventions necessary to prevent risk of re-offending. The child or young person must agree to accept both the Youth Conditional Caution and the conditions attached. The police will not agree conditions which are to be delivered by you without prior agreement.

The police will inform you within one working day of arrest, of any child or young person being considered for a Youth Conditional Caution.

Read the code of practice for conditional youth cautions for more information.

The intervention package may include:

  • community reparation activity to make good the damage caused by the offence
  • direct reparation to any victim or victims, including writing a letter of apology
  • brief cognitive behavioural work to address the thinking and attitudes behind the decision to offend
  • interventions to address specific offences, such as substance misuse

You must have full and informed victim consent in any case where direct reparation or restorative justice processes are being considered or where the victim is directly involved in some way. Interventions must be:

  • appropriate
  • achievable
  • proportionate
  • less than would be required for a court Order

The child or young person must understand that failure to comply with any of the interventions may result in prosecution for the offence. They must then sign a document admitting the offence and giving consent to the Youth Conditional Caution and to the conditions attached.

All children and young people given a Youth Conditional Caution must comply with the conditions of their out-of-court disposal, and the YOT is responsible for monitoring compliance. All conditions imposed must be achievable within 16 weeks of the date of the original offence. Failure to comply fully with these conditions within 20 weeks of the Caution being issued can lead to prosecution for the original offence if the YOT report wilful non-compliance. In this case, the police may re-arrest the child or young person and prosecute under the original offence if seen as in the interests of justice.

2.8 Repeat Cautions and Youth Conditional Cautions

The child or young person’s previous offending history will be determined by a Police National Computer check. The police may also check the offending history with the child or young person’s home area YOT to ensure that previous offences, particularly non-recordable offences, are not missed.

Previous convictions, reprimands, warnings, cautions, youth conditional cautions or other out-of-court disposals do not preclude the use of a further Youth Caution or Youth Conditional Caution. However, the police officers and YOT staff involved in taking the decision should consider whether the new offence is part of a pattern of offending which requires a more serious response such as a prosecution.

Factors which would influence a decision to impose a further out-of-court disposal include:

  • there has been a sufficient lapse of time to suggest that a previous caution or conviction has had a significant deterrent effect
  • the current offence is not similar or is unrelated to any previous offence
  • it is the best outcome for the child or young person and for any victim, depending on the circumstances of the individual case
  • the child or young person is willing to comply with any possible interventions and has previously complied with interventions including voluntary interventions as part of prior out-of-court disposals
  • it is likely to be effective in preventing offending

You must take care to guard against inappropriate repeat cautioning, and the protection and confidence of the public must be maintained as the focus throughout decision making.

3. Guidance for managers in YOTs

Your team should work closely together with the police for out-of-court disposals to be fully effective and they should always use restorative principles.

In contrast to the pre-court disposal system, there are no limits to the number of times a particular disposal may be used, and there is no automatic escalation. Therefore, any of the range of options can be given at any stage when it is determined to be the most appropriate action. However you must take care to avoid inappropriate over-use of out-of-court disposals if offending continues, as this may undermine public confidence in the out-of-court framework.

Your team is responsible for ensuring that effective assessments and any necessary interventions are delivered in support of the disposal being administered. Your youth justice partnership board should monitor the effectiveness of out-of-court disposals locally and agree the local protocol between yourselves and the police on out-of-court disposal arrangements.

3.1 National standards

The National Standards for Youth Justice Services state that your timely and accurate assessment of risks and needs, and intervention tailored to meet those needs, is a core role to reduce the risk of further offending.

3.2 Decision making process

Where an offence is eligible for consideration for triage, the decision must be taken jointly between your team and the police. The police can take an immediate decision to issue a Youth Caution but may delay for your team to undertake an assessment of the child or young person’s needs and suitability. For any second or subsequent offence, and for all Youth Conditional Cautions, your team must make a joint decision with the police, following a full assessment.

The decision on whether to give an out-of-court disposal or to charge will depend largely on the seriousness of the offence. To help the police assess the seriousness, or gravity of offences the Association of Chief Police Officers has devised a youth gravity factor matrix under which offences are given a gravity ‘score’ based on the offence and any mitigating or aggravating features. The Gravity Factors will help in assessing whether a child or young person should be charged for an offence or given an out-of-court disposal.

Offences with a gravity score of 4 or more (‘indictable only’ offences) will be referred to the Crown Prosecution Service, who have the responsibility for decisions regarding court outcomes. It should be noted that the court has the authority to send cases back for further consideration of out-of-court options, should it consider charging to have been a disproportionate response.

Serious offences which would ordinarily attract a high end community order or immediate custody are generally not suitable for disposal out of court.

3.3 Specific circumstances

Multiple Offences: more than one offence can be included in a Youth Caution if this is deemed to be an appropriate and proportionate response. Where multiple offences arise from the same incident, the most serious offence should be considered when determining the gravity of the offence. The circumstances of the other offence/s should be considered and may aggravate or mitigate the seriousness.

Where multiple offences arise from a number of separate incidents that have come to light at the same time (e.g. reported separately prior to arrest or further offences admitted during interview) the cumulative effect of the offences should be considered when making an overall decision.

18 year olds: young people who were 17 when the offence was committed, but are 18 at the time of delivery, and who are eligible for a caution, can be given an adult simple caution, but only if they consent to this. Consent is not required for youth out-of-court disposals.

3.4 Liaison between the police and YOT

You should draw up a partnership protocol with your police service, setting out locally agreed practice for the administration of out-of-court disposals. The process agreed should be signed off by your youth justice partnership board, and this body has responsibility for monitoring and oversight of this work. The protocol should include:

  • how and within which timescales the police will inform your team that any out-of-court disposal has been made
  • how and within which timescales an assessment for suitability for a Youth Caution or Youth Conditional Caution is required
  • the timescales for bail and information required to take decisions regarding bail cancellation
  • use of restorative processes, including:
  • contact with victims by the police
  • involvement of victims in direct or indirect restoration
  • arrangements for the police to inform victims of progress and outcomes
  • joint training arrangements for your team and police staff
  • how information on the impact of out-of-court disposals will be monitored, including quality assurance, completion and re-offending rates

3.5 Victims

Arrangements will be made by the police to contact victims within 24 hours of the arrest, and the police will give the victim/s appropriate information regarding your team’s role. The investigating police officer should notify your team in writing of the victim’s details, unless the victim asks for this not to happen.

The police will then ensure that victims are informed of developments in the case. Victims should have the opportunity to give fully informed consent to any involvement in any out-of-court process, particularly in any restorative processes.

Staff should be aware of national and local standards around policy and training relating to victim and witness care. Access to information on the victim should be restricted to those who need it and in any event such information should be kept separate from information on the young person.

3.6 Reviewing decisions

Decisions should be subjected to regular review and monitoring to ensure that they are:

  • fair
  • proportionate
  • do not impact disproportionately on any group

The police should set up a scrutiny panel to review the consistency and appropriateness of decision making across the force area. It is recommended as good practice that you, as a statutory decision maker, is part of that panel.

The youth justice partnership board has overall responsibility for oversight of out-of-court disposals, and should ensure processes are in place to feel confident that decision making is robust.

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