Case management guidance

How to use out-of-court disposals

How and when to use out-of-court disposals. The informal and formal options as well as the decision-making process. It also covers how to respond to issues such as non-engagement. It explains the Child Gravity Matrix and who to involve, including children, families and victims.

Why you need to focus on diversion

It is important that we divert children away from the formal youth justice system where appropriate. This will reduce crime, keep communities safer, cut costs, and create better outcomes for children and victims.

It is recognised that diversion is not appropriate in all cases and the serious nature of an offence, or actual or potential harm, means that formal criminal justice processes are necessary.

The evidence suggests that contact with the criminal justice system can lead to negative labelling and stigma. This makes it more likely that children will reoffend (see Petrosini, Turpin-Petrosini, Guckenburg 2010 and Wiley and Esbensen 2013). There is particularly strong evidence that diverting children before they reach court can protect them against further involvement in crime (Wilson et al 2018). Most children will naturally mature out of offending behaviour (see Bottoms 2006).

It is important to ensure that children are not unnecessarily criminalised and individual circumstances are fully considered. This is a central tenant of an evidence-based Child First approach (see Case and Browning, 2021). A focus on diversion will:

• help children avoid getting involved in the formal youth justice system and the damaging consequences
• avoid the cost of formal processing through the justice system
• save on future costs by addressing children’s unmet needs at an early stage before they escalate and become more difficult and costly to manage
• focus on children’s needs, identify and build on their strengths and create opportunities to realise their potential through education, employment and other activities

Access to and use of diversion must be fair and equal for all. Diversion should be designed, implemented and operated in a way that is sensitive to the impact on people with protected characteristics and reduces disparity.

The options for out-of-court disposals

The term out-of-court disposal refers to the different ways of resolving a situation without going to court. They can be either informal (non-statutory) or formal (statutory) and don’t involve a decision made through a court process.

Formal options

Formal out-of-court disposal options are:

• Youth Caution
• Youth Conditional Caution

These disposals will be recorded on police systems under the following outcome codes:

• Youth Caution (Outcome 2)
• Youth Conditional Caution (Outcome 2)

Formal options result in entry into the youth justice system and in relevant cases the child becoming a first time entrant (FTE).

The legislation for these disposals is set out in Chapter 7 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Formal out-of-court disposals should not be routinely used with children committing first time and less serious offences. Their use should be reserved for children who would otherwise receive a court sentence. This is to ensure that all responses to children that offend are aimed towards achieving the lowest possible level of criminal justice intervention, appropriate in the circumstances.

Informal options

Informal out-of-court disposal options include:

• Community Resolution
• no further action
• Deferred Prosecution/Deferred Caution

These disposals will be recorded on police systems under the following outcome codes:

• Community Resolution (Outcome 8)
• no further action
  • (Outcome 22) - used when diversionary, educational or intervention activity has been undertaken and it is not in the public interest to take any further action.
  • (Outcome 21) - used when further investigation, that could provide sufficient evidence for charge, is not in the public interest (includes dealing with non-abusive sexting offences without criminalising children)
  • (Outcome 20) – used where action resulting from a crime has been undertaken by another agency or body other than the police, subject to the victim being made aware of the action being taken.
• Deferred Prosecution/Deferred Caution (Outcome 22)- used when a prosecution or caution is put on hold until a diversionary activity is undertaken within a specified period of time.

Informal options do not result in formal entry to the youth justice system and the child will not get a criminal record. However, information about the offence will still be kept on local police databases and therefore could be disclosed on enhanced DBS (Disclosure and Barring Service) checks.

Read more about how to help children and families understand the implications of convictions and disclosure requirements.

The police use other ‘no further action’ outcome codes, but those listed above are considered specific to diversion work.

Further information please see Definitions for Prevention and Diversion - Youth Justice Board (2021).

Youth justice services (YJSs) may use different terms locally to describe their diversion work. It is important to ensure there is clarity on the type of informal out-of-court disposal issued to a child and the corresponding police outcome code used to record this on police systems. This is to support accurate data-recording in YJS case management systems.

The recording of all YJS diversion work is now mandatory under the YJB’s Data Recording Requirements

The standards for children in the youth justice system (2019) state that point-of-arrest diversion should be evident as a ‘distinct and substantially different response to formal out-of-court disposals’. Point-of-arrest youth diversion refers to informal out-of-court disposals. This offers a constructive alternative to the formal processing of children through the youth justice system.

All out-of-court disposals should be:

• collaborative and involve children/parents carers
• constructive and future-focused
• built on supportive relationships that empower children to fulfil their potential and make positive contributions to society
• child-focused, developmentally-informed and should acknowledge structural barriers
• used to minimise stigma from contact with the system

The options available to decision-makers

The term ‘out-of-court disposal’ now incorporates both formal and informal out-of-court disposals. The Child Gravity Matrix sets out the breadth of disposal options available to decision makers.

The disposal table within the Child Gravity Matrix sets out the details of each available disposal, including:

• disposal
• police outcome code
• disclosure requirements
• whether acceptance of responsibility or admission of guilt required
• whether it can be used as Deferred Prosecution/Deferred Caution (decision delegated to individual forces)
• whether interventions are voluntary
• whether a joint decision with the youth justice service (YJS) is required/recommended
• whether restorative approaches are available

Use the scoll bar at the bottom of this table to view all the different options.

		Disposal table
Disposals	No further action	No further action	No further action	No further action	Community Resolution	Youth Caution	Youth Conditional Caution	Charge
Home Office outcome codes	All other relevant no further action codes	Outcome 20	Outcome 21	Outcome 22	Outcome 8	Outcome 2	Outcome 2	Outcome 1
Formal conviction (child becomes a first time entrant*)	No	No	No	No	No	Yes	Yes	Yes
Disclosed on Disclosure and Barring Service (standard or enhanced)	Not automatically disclosed	Not automatically disclosed	Not automatically disclosed	Not automatically disclosed	Not automatically disclosed	Not automatically disclosed	Disclosed for maximum of 3 months Thereafter not automatically disclosed	Yes
Requires acceptance of responsibility or admission of guilt	No	No	No	No	Acceptance of responsibility	Admission of guilt	Admission of guilt	No
Can be used for deferred prosecution	No	No	No	Force decision	No	Force decision	Force decision	Force decision
Diversionary / education activities to be completed	No	Yes‐but voluntary and by another agency/body	Yes‐ but voluntary	Yes[footnote 1]	No‐ but can be voluntary	No‐ but can be voluntary	Yes	Yes
Stage of Gravity Matrix	1	1/2	1/2	2/3/4	2/3	3	4/5	5
Joint decision required with YJS	No	No, but recommended	No, but recommended	Yes	No, but recommended for second Community Resolution or above	No, but recommended Yes for second Youth Caution	Yes	No
Restorative justice	N/A	Yes	Yes	Yes	Yes	Yes	Yes	Yes

No further action

There are several instances where the police may decide to take no further action. These include where there may be evidential difficulties, prosecution is prevented, or no suspect has been identified. These are recorded by the police under a range of Home Office outcome codes.

There are also instances where it is not considered to be in the public interest to take formal action. However, there may be further action taken either by the police, the youth justice service (YJS) or another agency to support the child. These are recorded by the police under the following Home Office outcome codes:

Outcome 20

“Further action resulting from the crime report will be undertaken by another body or agency other than the police. This is subject to the victim (or person acting on their behalf) being made aware of the action being taken”. 

If diversionary activity is offered, this will be on an entirely voluntary basis and may or may not be delivered by the YJS depending on local arrangements. The outcome code may be used where it is deemed that no police intervention is required and support can be provided from other agencies, such as schools.

Outcome 21

“Further investigation resulting from the crime report that could provide evidence sufficient to support formal action being taken against the suspect is not in the public interest – this is a police decision. “

If diversionary activity is offered, this will be on an entirely voluntary basis and may or may not be delivered by the YJS depending on local arrangements. The intention of using this outcome code in cases of child produced and non-abusive sexual imagery is to present a proportionate response to this behaviour. It is to avoid criminalising children for sharing images consensually or where no aggravating factors are present within the sharing of these images.

Outcome 22

“Diversionary, educational or intervention activity, resulting from the crime report, has been undertaken and it is not in the public interest to take any further action.”

An admission of guilt or acceptance of responsibility is not required for this outcome code to be used. Although available to all children, this disposal was developed to reflect and respond to the lack of trust in the police and criminal justice system by some ethnic minority groups. Its use therefore is crucial to reducing disproportionality within the criminal justice system and to ensure equal access to diversion for all children.

Outcome 22 must not be used where no rehabilitative diversionary, educational or intervention activity has been completed. A child’s engagement in the agreed activities should be monitored and appropriate alternative disposals considered - where these are not undertaken. Should the child fail to complete the diversionary activity, the police have the power to enforce a formal disposal outcome.

Crimes will also be closed using Outcome 22 when using a Deferred Prosecution Scheme by way of a disposal. Further information on Deferred Prosecution Scheme is contained within National Police Chiefs’ Council’s (NPCC) guidance

Outcome 22 is currently not consistently applied by all police forces and its use is a local force decision. It is also currently not measured as a positive outcome for forces which can act as a barrier to its use. National Police Chiefs’ Council’s guidance states that given the positive benefits derived from diversionary work; the lack of positive detection should not deter forces from using it.

For further information please see the NPCC Guidance on Outcome 22.

The YJB’s Data Recording Requirements (2023/24) require mandatory reporting from YJS’s on diversionary outcomes where there has been YJS involvement. These include the above outcome codes (Outcome 20/21/22) and these are also reflected within the Ministry of Justice’s key performance indicator for out-of-court disposals. The Data Recording Requirements ask that the YJS makes a distinction between the use of Outcome 22 and its use as a Deferred Prosecution Scheme disposal.

The Youth Justice Legal Centre’s guide on criminal records includes useful information on the criminal record implications of no further action.

Community Resolutions

Community Resolutions are the lowest disposal available to police and can be a way of dealing quickly with low level offending where a child accepts responsibility for their actions.

Interventions may be offered to the child; however, these are entirely voluntary and cannot be enforced if not completed.

Joint decision-making between the police and youth justice service (YJS) is recommended for any second or subsequent Community Resolution. This is to safeguard against their repeated use where the underlying causes of a child’s behaviour may not be known and to ensure support can be provided to address unmet needs.

Police should notify the YJS of all Community Resolutions issued to a child within 24 hours. Depending on local arrangements, where the YJS has not been involved in the decision making, it is best practice for the YJS’sto screen the children involved and offer voluntary support where appropriate.

For further information please see National Police Chiefs Council’s Guidance on  Community Resolutions.

Deferred Prosecution Scheme

Deferred Prosecution Schemes are a non-statutory disposal, whereby the police have the option to put on hold a prosecution or caution until a diversionary activity is undertaken within a specified period of time.

It is an umbrella term to encompass both deferred prosecutions and deferred cautions and is used interchangeably. It is available for use with children; however, it is a local decision for forces as to whether they offer this disposal.

It is important to understand that Outcome 22 and Deferred Prosecution are not the same thing.

Deferred Prosecution is a disposal option available, whilst Outcome 22 is how the case will be recorded by police in accordance with National Crime Recording Standards. Where Outcome 22 is used to record a crime outcome it does not automatically imply that a Deferred Prosecution Scheme has been used as a disposal option. However, all Deferred Prosecution cases, should be recorded by the police as Outcome 22.

It is important that local partnerships understand how Outcome 22 is being used in their area and whether their local police are operating a Deferred Prosecution Scheme that is available as a disposal option for children. The YJB’s Data Recording Requirements 2023/24 require mandatory reporting of Diversionary Outcomes and a distinction between Outcome 22 and Outcome 22 as Deferred Prosecution Scheme. The is also reflected in the key performance indicators requirement for out-of-court disposals, introduced in April 2023.

Youth Caution

A Youth Caution is a formal out-of-court disposal and may be given by the police for any offence where:

• the child makes a full admission
• there is sufficient evidence for a realistic prospect of conviction, but it is not in the public interest to prosecute

There is no statutory requirement for assessment and intervention by the youth justice service (YJS) for the first youth caution, although it would be best practice for the YJS to offer this as a voluntary intervention.

While Youth Cautions aim to provide a proportionate and effective resolution to offending, the use of Youth Cautions without any interventions offered to the child should be minimised.

Consideration should also be given to other available options which offer support and intervention without the stigmatising impact of a criminal record. This includes the use of deferred caution where a deferred prosecution scheme is an available disposal option by the local police force.

You should observe the following:

• a Youth Caution must be formally issued by the police
• children must be accompanied by an appropriate adult, and/or whenever possible a parent or carer, when the Youth Caution is administered and explained.
• if the child is care experienced then a representative of the organisation providing the care should attend as an appropriate adult, and a social worker from the local authority is a suitable alternative
• children and their parents/carers or other appropriate adults should have access to up-to-date and accurate information about Youth Cautions, so that they can make an informed decision
• the parent, guardian or other appropriate adult must also be given copies of any written information given to the child
• children and their parents/carers 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 should admit to an offence solely to receive a Youth Caution and avoid attending court
• information, support, advice and assistance from the YJS or an appropriate adult is in addition to and not a substitute for legal advice

The status of Youth Cautions should be made clear to children and appropriate adults , including that:

• a record of the Youth Caution will be kept by the police
• 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
• a Youth Caution given in relation to an offence in Schedule 3 to the Sexual Offences Act 2003 will require the child to engage with the notification requirements in that Act
• interventions attached to a Youth Caution are voluntary and there is no separate penalty for failing to engage with them, however failing to engage with this intervention can be cited in any future criminal proceedings

There is no restriction on the number of cautions a child can receive and previous Youth Conditional Cautions are immaterial.

Youth Cautions could impact on a child’s future, including their ability to travel to other countries, apply for certain jobs and on immigration applications. The Youth Justice Legal Centre have produced information sheets for children and families to help them to understand the implications of convictions and cautions and what it means for them.

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, you should observe the following:

1. The youth justice service (YJS) should undertake an assessment and make recommendations to the police regarding suitable conditions necessary to support desistance.
2. The child must agree to accept both the Youth Conditional Caution and the attached conditions, with which they must engage.
3. An appropriate adult must be present when the police explain the effect of the Youth Conditional Caution to the child and warn them that they may be prosecuted for the offence if they don’t engage with the conditions.
4. The YJS is responsible for monitoring engagement and should make every effort to support the child to engage with the support set out in the conditions.
5. All conditions imposed should be achievable within 16 weeks of the date of the disposal being issued.
6. It is the role of the police to write these conditions into the Youth Conditional Caution contract and arrange for the child and their parents/carers or other appropriate adult to sign this.
7. If the appropriate adult is also asked to sign the contract, they should do so only if they are content that the Youth Conditional Caution is for the listed offence and that the child’s agreement was fully informed and free of pressure or inducement.

It should be made clear to children and appropriate adults the status of Youth Conditional Cautions, including that:

• a record of the Youth Conditional Caution will be kept by the police
• under the Rehabilitation of Offenders Act 1974 the Youth Conditional Caution will be considered “spent” once completed but that it may be disclosed to employers in certain circumstances
• a Youth Conditional Caution given in relation to an offence in Schedule 3 to the Sexual Offences Act 2003 will require the child to engage with the notification requirements in that Act
• failure to complete the conditions could still result in prosecution at court for the original offence

The use of alternative diversionary disposals should be considered prior to the use of a Youth Conditional Caution.

The same interventions can be delivered using a diversion outcome and the use of a deferred caution should be considered where a deferred prosecution scheme is an available disposal option by the local police force.

However, the Youth Conditional Caution can provide a robust disposal where the child does not need to go to court for more serious offences or if there is evidence of a child being unwilling to take part in diversionary work. You should also have regard to the National Police Chiefs’ Council’s Child Gravity Matrix  and the Crown Prosecution Service’s legal guidance for children as suspects and defendants.

Further information on Youth Conditional Cautions  can be found in the Ministry of Justice’s Code of Practice for Youth Conditional Cautions.  

Youth Conditional Cautions could impact on a child’s future, including their ability to travel to other countries, apply for certain jobs and on immigration applications. The Youth Justice Legal Centre have produced information sheets  for children and families to help them to understand the implications of cautions and what it means for them.

The difference between Community Resolution and no further action (Outcome 22)

Both Community Resolution and no further action are informal out-of-court disposals and do not result in the criminalisation of a child. This means that the child will not formally enter into the criminal justice system as a first-time entrant.

However, when considering their use as diversion disposals there are some distinct differences to be aware of and these are outlined within the National Police Chiefs’ Council’s (NPCC) Outcome 22 Guidance (2022)

Community Resolution

A Community Resolution is a non-statutory disposal intended to provide a timely and effective response to low level crime. A child must accept responsibility for their actions and whilst there is no requirement for diversionary activity to take place, this can be offered on a voluntary basis and should be encouraged. The police have no powers to enforce it.

Outcome 22

Outcome 22 does not require an admission of guilt or acceptance of responsibility. This was developed to reflect and respond to the lack of trust of the police and criminal justice system, including by some children from ethnic minorities. This distrust, along with potential biases within the system has been shown to lead to a greater number of ethnic minority children receiving formal criminal justice outcomes, where an informal outcome may have been more appropriate and done more to change their behaviour.

If the child doesn’t complete the diversionary activity and the evidential threshold is met, the police have the power to enforce a formal disposal outcome. If an admission of guilt has not been made, this could mean a charge. This is because an admission of guilt is required for a Youth Caution or a Youth Conditional Caution.

More information on each of these disposals is in the revised NPCC guidance on both Community Resolutions and Outcome 22

The Child Gravity Matrix indicates that the use of Outcome 22 is a local force decision. It is not currently being consistently applied across all forces or measured as a positive action taken by forces. The NPCC guidance on Outcome 22 states that given the positive benefits of effective diversionary work, the lack of positive detection should not deter forces from using it. 

The use of Outcome 22 as an informal disposal option is crucial to ensuring that opportunities for diversion are maximised and that there is equality of access to diversion for all children.

The difference between admission of guilt and acceptance of responsibility

Admission of guilt

Admission of guilt is required for a Youth Caution or Youth Conditional Caution and requires a clear, reliable and unambiguous admission to the offence. Best practice would be for this to be undertaken in a police interview where it is recorded.

There are many reasons a child may not admit guilt, either by way of a no comment interview or denial of an offence. The Lammy Review highlighted how some ethnic minority groups can be less trusting of the criminal justice system and hence more likely to give ‘no comment’ interviews.  In addition, children may not admit an offence due to insufficient support or legal assistance. Children may also not fully understand the legal process or consequences of their decisions exacerbated by vulnerabilities and additional needs such as special educational needs and disabilities or neurodevelopmental conditions (ADHD, Autism) and speech and language and communication difficulties.

Acceptance of responsibility

Acceptance of responsibility has no legal definition, but it holds less weight than an admission. It is not the same as a PACE compliant formal admission.

A child could accept that their actions may in some way have contributed to what happened.

An acceptance of responsibility can therefore only be used for a Community Resolution. This is because Community Resolution is intended for use with minor offences and those which no one would seek to prosecute should the child not engage with any requirements placed on them under the voluntary agreement.

How to make out-of-court disposal decisions

The National Police Chiefs’ Council’s (NPCC) Child Gravity Matrix (2023) is a tool used to help make decisions about what should happen to children who have committed offences.

The Gravity Matrix takes into account the different options available to the person making the decision, including statutory and non‐statutory disposals. It has been revised to reflect current working practices and the changing views on how children should be treated within the youth justice system. It also introduces a new framework specifically for making decisions in recognition of the differences in children’s offending behaviour.

When using the Child Gravity Matrix to support decision making you should remember that it is only a guide. Each case should be looked at on an individual basis to decide the most appropriate outcome or disposal. Discretion ‘does’ exist to deviate from the Child Gravity Matrix score by way of an out-of-court disposal if the circumstances justify this. The reasons for such action would need to be fully recorded by the decision maker.

You should also be mindful that:

• decisions should be made based on the offence, considering any aggravating or mitigating factors and victim’s views where available
• it is important to remember it is for a child and therefore adult standards should not be applied
• it is important to establish whether a child’s needs can be met through diversionary activity and whether safety can be achieved for the child and others - there should be a clear rationale for all decisions, which should be recorded on police and youth justice service systems

The Child Gravity Matrix refers to other important documents which you should also consider when making the decision. These include the NPCC’s child centred policing: best practice framework, and the YJB’s Introduction to Child First  - specifically its Child First principles, all of which highlight the importance of avoiding the unnecessary criminalisation of children.

The people responsible for making an out-of-court disposal decision

Offences are either indictable, ‘either-way’ or summary offences, largely determined by the seriousness of the offence.

Indictable offences are the most serious offences and must always be referred to the Crown Prosecution Service (CPS) for a decision as to whether to charge. All terrorism offences must also be referred to the CPS. This includes summary and either-way offences.

Offences referred to the CPS may still result in an out-of-court disposal, but this is not a decision that can be taken by the police/youth justice service (YJS) alone. All other offences are within scope for police/YJS decision-making and therefore the range of options available are set out in the Child Gravity Matrix.

Out-of-court disposal decisions are therefore primarily made by the local police force where the child commits the offence. However, the YJS has an important role in understanding the circumstances of the child, any vulnerability factors and potential harm that should be considered when deciding the most appropriate outcome or disposal.

The Child Gravity Matrix provides further guidance as to when decisions should be made jointly between the police and YJS. Specifically, that:

• decisions relating to the use of no further action (Outcome 22), Youth Conditional Caution or a second Youth Caution should be made jointly between the police and YJS
• decisions relating to use of no further action (Outcome 20 and 21), Youth Cautions and any second or subsequent Community Resolution are recommended to be made jointly between the police and YJS
• the police decision maker considers if the case being reviewed is borderline between a charge and an out-of-court disposal - best practice would be to liaise with the YJS to assist in making the most appropriate decision

Joint decision making between the police and YJS is recommended wherever possible and where resources permit. Where single agency decisions are to be made by the police there should be safeguards in place to ensure relevant information about the potential underlying causes of the child’s behaviour are known. These should inform the decision and ensure opportunities to offer support to meet the child’s needs are not missed.

Children who have reached 18 years of age prior to the out-of-court disposal decision being made, can only be made subject to adult disposals.

How to embed joint decision-making arrangements.

The youth justice service (YJS) or youth justice services (YJS’s) and the police should draw up a joint protocol setting out locally agreed practice with regards to out-of-court disposals in their force area.

This protocol should establish and embed joint working arrangements and clearly set out the multi-agency diversion process, including:

• the referral processes
• the eligibility criteria
• arrangements for joint decision making
• arrangements for assessment
• information sharing processes
• arrangements for repeated use of diversion
• escalation process where agreement between the YJS and the police cannot be reached as to the most appropriate outcome for the child
• arrangements for children sent back from court for consideration of an out-of-court disposal
• arrangements for monitoring engagement and responding to non-engagement
• the roles and responsibilities of all professionals involved
• the scrutiny and monitoring arrangements.
• how children’s diverse needs are incorporated into decision-making and the delivery of services
• arrangements for obtaining the views of the victim and restorative processes available
• arrangements for the delivery of out-of-court disposals, including interventions
• arrangements for the administering of Youth Cautions and Youth Conditional Cautions

The joint protocol should:

• be signed by all relevant partners
• be regularly reviewed by the local partnership and monitored against the extent of its use, the characteristics of the children involved and its impact on reoffending
• take account of the Child Gravity Matrix and the evidence base

How to convene a joint decision-making panel

Joint decision-making panels (England) or a Bureau (Wales) provide a multi-agency forum for decision-making.

They bring together key partners to consider information about the offence, the child’s circumstances and needs, and the victims’ views, if available, to determine the most appropriate outcome. These may be done in person, virtually or in bespoke ways according to the context of the local area and local partnership arrangements.

As a minimum, the panel should comprise of a:

• police decision-maker
• youth justice service (YJS) team manager
• representative from children’s social care and education

It is also good practice to include a range of partners such as health services, early help services and a victim representative. Services may judge that other professionals can add value to the discussion, either on a one-off basis or as a standing member of the panel. Where key agencies are not represented at the panel, or where a formal panel does not exist due to local arrangements there should be a process in place to share relevant information to inform multi-agency decision making.

It is not appropriate for the child to be present at the panel. These meetings are for professionals and should not mirror formal criminal justice processes such as Referral Order Panels.  

The YJS should ensure they have spoken with the child and their carers before the panel to ensure their needs are fully understood and they are engaged in the process.

Representatives from the YJS at the panel should have a full understanding of the child’s circumstances and be familiar with any assessment undertaken in the event they are not the case manager. They must be able to fully represent the voice of the child in the discussion and ensure any critical information does not get lost.

Things to consider include:

• whilst all panel members will have a view on the most appropriate disposal, the decision sits with the YJS and the police
• there should be a clear escalation process where agreement between the YJS and the police cannot be reached as to the most appropriate outcome for the child
• some decisions may require more senior oversight from both YJS and police, particularly when considering more serious offences and the use of a Deferred Prosecution Scheme

Where joint decision panels exist, they should not contribute to net widening and draw children into the system unnecessarily or become overly bureaucratic. They should remain mindful of the need for swift administration, ensuring referrals are discussed at panel within 4 weeks of being received.

The YJS should discuss the panel decision with the child and their parent/carer to ensure they understand the outcome and what is expected of them.

Read How to involve children and parents/carers for more information.

Joint decision-making panels should also monitor engagement with out-of-court disposals and agree action to be taken in the event of non-engagement.

The information needed to inform decision-making

Statutory partners have an important role to play in ensuring that information about the child is shared and understood by decision makers. This will help ensure the most appropriate outcome or disposal for the child.

This includes:

• information regarding the child’s education, including attendance, suitability of provision, and any special educational needs and disabilities, or additional learning needs
• information regarding the child’s family and living circumstances
• information about any known vulnerabilities, adverse childhood experiences, exploitation or safeguarding concerns
• information about the child’s health needs, including any speech and language and communication needs, emotional wellbeing and substance misuse
• police intelligence and information about previous offending, including any concerns for the safety of others

There should be local arrangements in place to facilitate the timely sharing and gathering of this information as required to ensure referrals are discussed at panel within 4 weeks of being received. Where decisions are to be made jointly by the police and YJS, the YJS may decide to gather this information via screening or assessment prior to a decision being made.

However, assessment is always required to determine the most appropriate interventions and the YJS should draw on recent existing assessments where these exist.

How to apply discretion in decision-making

The Child Gravity Matrix is an important tool designed to assist the police when deciding on the most appropriate outcome for children who commit offences. However, it is to be used as a guide only and professional discretion should be applied in determining the most appropriate outcome for the child.

Each offence has a starting score of 1-5, to which you would then apply aggravating and mitigating factors, along with vulnerability factors and adjust the score accordingly. This results in a final score. However, starting scores can only be upgraded or downgraded by one point irrespective of how many general factors may be present or identified. These factors must be fully recorded and evidenced by the decision maker in their rationale.

There will therefore be circumstances where there are significant, mitigating and/or vulnerability factors, or aggravating factors which the decision makers judges should have a bearing on the outcome, which cannot be sufficiently reflected in the final score.

The Child Gravity Matrix makes it clear that discretion does exist to deviate from it by way of an out-of-court disposal, but that the circumstances and rationale for doing so must be fully recorded.

It is important to establish whether the child’s needs and their safety and that of others could be met through an out-of-court disposal.

Where Deferred Prosecution Schemes are not used by forces, this may limit the diversion offer locally.

The eligibility criteria for diversion schemes

The eligibility criteria for diversion schemes should be agreed at a local level and set out clearly within the local out-of-court disposal protocol. Decision makers should follow relevant NPCC guidance and the evidence base and allow for decision making on a case-by-case basis using professional discretion. Eligibility criteria should not operate on a blanket policy based on gravity score, offence type (excluding indictable only offences and terrorism offences) or offending history.  

This approach also has positive implications for facilitating equal access to diversion for all children. There is significant evidence that choosing inappropriate eligibility criteria can make it less likely for children from some ethnic groups to access diversion and thus contribute to racial disparities (Farinu, M., Robin-D’Cruz, C., Waters, R. and Whitehead, S. (2020).

Diversion schemes which require a formal admission of guilt may contribute to these disparities. Lowering the threshold to allow some acceptance of responsibility for the linked offence is more appropriate and inclusive.

There is a crucial role for ensuring disposals are used appropriately. They should minimise contact with the formal criminal justice system for children who don’t really need it and whose needs can be met through other services and minimise net-widening (bringing more children into contact with youth justice services than would have happened otherwise). This can often be well intentioned as result of seeing unmet needs for children and wanting to offer them help and support. However, research suggests that this can be a counter productive. As such, local areas should have prevention options available to support these children.

The most serious offences, where there is a significant potential for harm are appropriately subject to formal criminal justice outcomes.

Out-of-court disposals should not be used where a child denies any involvement in an offence as due legal process should be applied. Children should have the right to a fair trial where it is in the public interest to prosecute.

The importance of timely decisions

For diversion to be effective it should happen as soon as possible after the offence occurs, usually within 4 weeks of referral to decision makers. This enables children’s needs to be identified and support to be offered to avoid any further escalation in their offending.

You should consider the following:

1. Delays in police investigations involving children as suspects should be minimised by ensuring investigations are prioritised and proportionate.
2. The length of time since the offence was committed should be taken into consideration when determining the most appropriate outcome for the child, to ensure the relevance of any response.
3. Youth justice services should be provided with the details of children released under investigation and on bail and you should offer or signpost these children to support wherever possible.
4. Referrals into diversion schemes should be as simple and straightforward as possible and formalised into a shared protocol with the police.
5. You should ensure that there is a locally agreed timely process for sending cases back from court for consideration of an out-of-court disposal.
6. You should ensure that disposals are administered and any agreed interventions put in place in a timely manner following the disposal decision. This should not exceed 4 weeks.

Repeated use of diversion for the same child

There is no limit on the number of times a child can receive a diversion disposal. Decisions should be made on a case-by-case basis and should be based on the factors outlined in the  Child Gravity Matrix including the offence and any assessed vulnerabilities or needs of the child.

However, consideration should also be given to whether any previous diversion activities have been effective in meeting the child’s needs and have been meaningful to them. It is also important that there is scrutiny and oversight of out-of-court disposals including their repeated use.  

There is no requirement for children to have a more intensive outcome for subsequent offences. It is known that children who have experienced significant adversity in their lives are unlikely to change quickly and may require more than one opportunity to change their behaviour. Interventions can take time to have an impact and/or reduce concerns, such as identifying suitable education provision or addressing safeguarding concerns. In instances of repeat but low-level offending, children should have more than one opportunity to take advantage of diversion.

Local areas should agree a process where children can have more than one opportunity for diversion, but there should also be oversight to avoid excessive repeated use. It is accepted that children do not always change at the first opportunity, however, overuse will be less effective.

It is important to ensure that the system remains effective by developing a locally agreed process around repeated use. This should take into account considerations such as:

• age
• maturity
• need
• victims’ wishes
• context of offending
• time since last diversion

The escalation to court, or more formal out-of-court disposals should be justifiable either due to the seriousness of the offence or because additional controls available through the court or conditions need to be used.

Previous offending and diversions should not be an automatic bar to diversion, but rather should be considered on a case-by-case basis. This is particularly important to address disproportionality due to social and justice inequalities.  It is important to understand why previous diversion may not have been effective and what could be done differently in the event of further diversion.

What to do when a child commits an offence in an area where they do not live

If a child commits an offence in an area where they do not live then the disposal decision must remain with the police in the area where the offence took place. This means that local decision-making arrangements will apply. However, communication between the home youth justice service (YJS) and host YJS are vital in ensuring that the child is not unnecessarily criminalised, and they get the support they need.

It is also good practice for areas to publish details of their diversion offer and contact details for the lead in this area on their websites. This will facilitate better communication between YJSs but also allow legal advisors to be aware of the offer in different areas of the country.

Further details of what to do when a child commits an offence in an area where they do not live is detailed in the YJB case management guidance on case responsibility.

How to respond if cases are sent back from court for consideration of an out-of-court disposal

It is important that diversion schemes have clear mechanisms to ensure that children do not reach court unnecessarily.

There are many reasons why cases potentially appropriate for diversion still reach the point of formal prosecution. However, this usually applies to children who give ‘no comment’ interviews or where charging decisions have not considered all relevant information about the child.

Reasons for ‘no comment’ interviews often include:

• insufficient or inappropriate support and/or legal representation at the police station
• a lack of understanding of legal processes and the diversion offer
• a lack of trust in the police and criminal justice system
• health vulnerabilities such as speech and language and communication difficulties and neurological conditions such as ADHD/ASD.
• possible coercion/fear (e.g. If the co-accused is an adult)

This can affect already disadvantaged groups, particularly children from ethnic minorities or children who have experienced care. Often such cases will result in a Referral Order being issued at court due to child later making admissions at court, or in being sent back from court for consideration of an out-of-court disposal.

The YJS should engage with children before their court appearance to ensure they fully understand the options available to them.

The Crown Prosecution Service guidance Children as suspects and defendants states that it is always preferable for cases suitable for diversion to be identified before they enter the court system. Prosecutors will advise the police at the point of charge or post-charge if suitable cases have been potentially missed, or if the child subsequently wishes to make an admission. If that happens then an adjournment may need to be requested. If, after review, it is determined that a caution can be given, a clear and unambiguous admission is a statutory requirement prior to the administration of either the Youth Caution or Youth Conditional Caution. 

There is currently no nationally agreed process on sending cases back from court for consideration of an out-of-court disposal

In the absence of a national approach, there should be a locally agreed process, agreed via the local criminal justice board, to ensure children suitable for diversion are not formally prosecuted. There should be a clear and agreed process for ensuring such cases that do reach court can be de-escalated to diversion in a timely manner where appropriate, against which engagement should be monitored.

How to decide the most appropriate disposal for a child vulnerable to exploitation

Concerns about possible exploitation should be identified at the earliest opportunity. When children come into contact with the police as a suspect of an offence, this presents an opportunity to identify such concerns. The police and the youth justice service (YJS) and any appropriate adult provided by the YJS should be alert to circumstances of the offence which may indicate that the child may be vulnerable to exploitation. They should then follow local procedures relating to child exploitation.

A strategy meeting should be arranged so relevant information is be shared and a decision made as to whether a National Referral Mechanism (NRM) referral should be submitted and if so by whom. If a child is subject to an NRM referral or they are vulnerable to exploitation, this should be taken into account when deciding the most appropriate outcome.

Police officers are advised to refer to national guidance on the Crown Prosecution Service’s Section 45 defence information for clarification on whether it applies to the offence being dealt with. Due to the importance of timely decisions relating to the use of out-of-court disposals, the police and YJS should not wait for the outcome of the NRM referral to make a decision as to the most appropriate disposal. Instead, they should factor this into their decision making as a mitigating factor.

Practitioners should also refer to the Ministry of Justice’s County Lines Exploitation: Practice guidance for YOTs and frontline practitioners (2019) which urges professionals to be conscious that children engaged in county lines activity are often exploited.

How to assess for out-of-court disposals

YJS’s should gather relevant information about the child to support decision-making via screening or assessment prior to an out-of-court disposal decision being made. However, an assessment is always required to determine the most appropriate interventions. This is particularly important as the child might not be previously known to services

Out-of-court disposal assessments should:

• be proportionate
• focus on the strengths and needs of the child, desistance, and the safety and well-being of the child and the safety of others
• fully consider diversity factors, including all protected characteristics to ensure children’s needs can be met
• be undertaken by case managers who are:
  • sufficiently skilled
  • able to take a Child First approach
  • able to accurately assess the child’s particular needs, capacities, rights and potential.
  • aware of potential biases and avoid ‘adultifying’ children from minority groups, particularly Black children
• be regularly reviewed and updated when new information is known

YJS’s should also refer to Case management guidance - How to assess children in the youth justice system

The YJB has developed prevention and diversion assessment tool, which will be mandated for use by YJSs for both informal and formal out-of-court disposals from April 2024. In the interim, YJSs should continue to use existing tools. The YJB is also developing guidance and training to support the implementation of the prevention and diversion assessment tool.

The use of a nationally agreed standardised assessment tool for out-of-court disposals is designed to:

• ensure a more consistent approach to assessment
• reduce the need for replication should the child go on to reoffend due to integration with case management systems
• enable extraction of information on diversion cases to support local and national analysis of this cohort of children
• ensure a more proportionate assessment tool than Asset Plus can be used formal out-of-court disposals

How to ensure that interventions are Child First

Interventions should be delivered in line with the YJB’s Child First principles:

• seeing children as children
• enabling the child to develop a pro-social identity
• delivered in collaboration with the child
• minimising stigma from contact with the system

Interventions can vary depending on the needs of the child and should always be supported by assessment and planning.  Interventions can be delivered by the YJS or community partners.

Interventions should:

Be proportionate to the child’s needs

Even if the offence is low level and therefore light touch, it is still important to identify the child’s unmet needs and try and address them through any intervention offered.

Be proportionate to the offence

Careful consideration should be given to what is required as part of the disposal and what should be offered to the child on an entirely voluntary basis. This is particularly important for the use of Outcome 22 where consideration can be given to a more formal alternative disposal where these interventions are not completed.

Focus on the causes of offending behaviour

The intervention should focus on the underlying causes of behaviour rather than the offence itself.

Consider the safety of the child and others, including the victim or any potential victim

Consideration must be given to what can realistically be achieved during an out-of-court disposal, which is often short term and ensure there are longer term arrangements in place to ensure the ongoing safety of the child and others. 

Consider the views of the victim

Consideration should be given to restorative approaches where appropriate and  in the best interests of the child and victim.

Be evidence-based

YJSs should understand what is effective for this cohort of children and design their services accordingly using available evidence and research.

Be offered as soon after the offence as possible

Every effort should be made to minimise delays in support being offered to the child where this is required.

Be regularly reviewed

Consideration should be given to closure and exit planning to ensure that children do not remain open to services unnecessarily and that where unmet needs remain, the child can continue to receive the support required.

Interventions could be delivered through:

• a referral on to another agency, with the agreement of the child, for their needs to be met
• advocating on the child’s behalf to access the services they need
• direct work with an identified practitioner, to build the child’s strengths and pro social identity
• family or community support

Conditions on Youth Conditional Cautions which provide controls

In addition to interventions, it is also possible to have conditions on a Youth Conditional Caution that act as external controls.

Conditions must be:

• appropriate
• realistically achievable
• proportionate

This can include, but is not restricted to:

• doorstep curfew - requires a child to present himself to a police officer at the door of the prescribed address at any time during the curfew period
• restricted activity - restricts the child from undertaking activity on the day or days specified and during a specified period of time
• exclusions - prohibit the child from going into a specified area for a specified time period

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.

How to respond to non-engagement

It is incumbent on you to make every effort to engage children in completing their out-of-court disposal. In most instances engagement in out-of-court disposal interventions will be voluntary, but every effort should still be made to ensure the child’s full engagement, including adapting your approach where required. The first aim of any youth justice service (YJS) worker is to engage the child. The planning and delivery of interventions should be a co-production between the child and professionals, but professionals have a particular responsibility for addressing barriers.

For advice and information on how to work with children in contact with the youth justice system please see refer to the case management guidance - how to work with children

It is the responsibility of the YJS to monitor engagement with out-of-court disposals. Local joint decision-making arrangements should include provision to determine action to be taken in the event of non-engagement by the child.

Community Resolution

The child’s participation in an intervention programme for a Community Resolutions is voluntary

Youth Caution

The child’s participation in an intervention programme for a Youth Caution is voluntary. However, unreasonable non-engagement with a Youth Caution intervention can be cited in any future criminal proceedings.

Youth Conditional Caution

The child’s participation with conditions imposed as part of a Youth Conditional Caution is compulsory and the YJS’s must explain to the child and their parents/carers that non-engagement may lead to prosecution for the original offence if considered in the interests of justice.  

It is the responsibility of the YJS to inform the police if a child fails to complete their conditions and non engagement should be discussed at the first available joint decision panel so that action can be taken in a timely manner where appropriate. In any instance of non-compliance, the YJS should explain to the child that failure to comply with conditions will be investigated.  

Where the decision has been made that prosecution for the original offence will go ahead, the YJS must ensure that the child is aware and will need to provide relevant information to the police. The citable components of any intervention plan must not be longer than 3 months in duration. The YJS may offer the child voluntary interventions in addition to, or after, the formal part of the Youth Conditional Caution if the child agrees to this. However, where the child fails to complete this voluntary involvement, this is not citable if the child reoffends. 

Outcome 22

The child’s participation in diversionary activity for outcome 22 is voluntary, however if these are not completed an alternative outcome must be given.

Deferred Prosecution Scheme

The child’s participation in diversionary activity for a Deferred Prosecution Scheme is voluntary, however where evidential threshold has been met, the police have the power to enforce an alternative formal disposal if these are not completed.

The YJS should monitor engagement and ensure the child and their parents/carers fully understand the potential outcome of non-engagement. The YJS may offer additional voluntary interventions as part of the intervention, however failure to complete these should not result in an alternative disposal being considered.

It is important to be clear with the child which elements of any intervention offered are voluntary and which they will be required to complete.

Who to engage with about your diversion offer

To make diversion successful, you need to cultivate a strong partnership approach. You should take every opportunity to use diversion where appropriate and make sure that all children have equal access to it.

In addition to the role of the youth justice service (YJS) management board’s oversight and monitoring arrangements, the following partners have a key role to play in diversion:

Police

Officers across the force who may come into contact with a child for an offence, must understand the local diversion offer, including processes for referral and decision making.

Officers in a case should receive feedback on the outcomes of diversion interventions to support their understanding of the local offer and improve their confidence in it. They must also ensure effective exchange of information with the YJS, in line with the National Police Chief ‘Council’s Child Gravity Matrix, Community Resolution and Outcome 22 guidance. This is crucial to the success of any diversion offer, alongside effective joint decision making.

Forces should provide information on their force websites about their out-of-court disposals, including the results of out-of-court disposal scrutiny panels. They should also ensure there is information available in custody suites about the local diversion offer, for children, appropriate adults and solicitors.

Appropriate adults

The YJS has a statutory duty to provide appropriate adults and their role is to safeguard the interests of children detained or questioned by the police. They have an important role in ensuring out-of-court disposals are applied in accordance with legal requirements and local agreements. This includes ensuring that children understand the nature and implications of any out-of-court disposal and have access to legal advice. There is also a requirement for appropriate adults to be present for the administering of Youth Cautions and Youth Conditional Cautions.

Appropriate adults should understand the local diversion offer and be provided briefings and information by the YJS, including on the eligibility criteria, referral processes and any criminal record implications.

Solicitors

Solicitors should fully understand the local diversion offer to enable them to offer the best advice to their clients and guide children through the criminal justice process. They should be given the opportunity to make representations regarding diversion as they may be made aware of important information regarding the child’s circumstances which will assist decision makers.

Solicitors should be provided with briefings and information by the YJS to explain the local diversion process, including details of the eligibility criteria, referral processes, the requirements that may be made and any potential criminal record outcomes. It is important that solicitors and/or police station representatives undertake specialist youth justice training to ensure the child is receiving the best legal advice.

Police and Crime Commissioners

Police and Crime Commissioners have several key functions which include:

• holding the local Chief Constable to account
• setting the objectives for police and crime in their area through a police and crime plan
• bringing together criminal justice agencies to make sure local priorities are joined up

They have a central role in local criminal justice boards and in bringing together criminal justice partners to deliver better outcomes for communities served by criminal justice agencies. Supporting diversion is an important part of this activity. They also invest in prevention and diversion activity and have a role in evaluating the effectiveness of diversionary support and interventions.

Courts

Courts should have a full understanding of the local diversion offer and receive regular feedback on its effectiveness to ensure confidence in the scheme.  

They also have a role to play in ensuring children appearing at court who may benefit from diversion are sent back from court for consideration of an out-of-court disposal where appropriate.

Crown Prosecution Service

The Crown Prosecution Service have a role in ensuring out of court disposals are considered in appropriate cases and in accordance with the law. They also have a role in understanding and monitoring the effectiveness of the use of out-of-court disposals locally via the Local Criminal Justice Boards and Out-of-Court Scrutiny panels.

Health

You should ensure that there are arrangements in place to identify a child’s health needs early and offer support where required in alignment with the local diversion offer.

Local liaison and diversion services should provide a prompt response to concerns raised by the police and YJS and provide critical information to inform decision making. Children’s speech language and communication needs and neurodiversity must be understood to ensure that the attitude and demeaner of a child with such difficulties does not negatively influence decision making or the delivery of interventions.

Mental health services should meet the needs of children at risk of entering the youth justice system given the link between mental health and children’s behaviour and contact with the justice system. You should also consider if there are any physical health and substance misuse needs. This contributes to a holistic assessment of children’s needs.

Education

Engagement in suitable education is identified as a significant issue for children who come into contact with the criminal justice system. Diversion schemes should consider any issues associated with a child’s education which may be impacting on their behaviour such as:

• attendance
• educational offer
• special educational needs and disabilities, including any education health care plan
• exclusions and managed moves
• elective home education and children missing education

There should be clear processes established for obtaining the relevant information to inform assessment, decision making and planning. Interventions should also address any needs identified in these areas.

Children’s services

Children’s services have a responsibility to support and protect vulnerable children, such as those in contact with the youth justice system. As such, children’s services should be represented on decision making panels to inform decisions and ensure children’s needs and any safeguarding concerns are taken into consideration. 

Community

It is beneficial for the local community to understand the diversion offer and information should be available on the front facing websites of the YJS and the police to help their understanding.

How to involve children and parents/carers

Children and parents/carers are central to the diversion process, which should be inclusive and ensure that they feel listened to.

This should be evident in the involvement of children and parents/carers at all stages of the process. This includes the assessment and the planning and delivery of interventions, which should be co-produced and tailored to meet their needs.

The following actions will help to ensure the effective involvement of children and parents/carers:

1. Youth justice services (YJSs) should seek the views of children and their parents/carers before an out-of-court disposal decision is made and ensure their voices are heard in the decision-making process.
2. There is a balance to be struck between thorough assessment and ensuring the timeliness of decisions, however where assessment is done more fully this results in better engagement in any intervention.
3. It is important that diversion processes are clearly and accurately explained to children and parents/carers so they understand exactly what is expected of them, to support their engagement and increase their trust in the process. This includes ensuring information is accessible where English is not the first language.
4. YJSs should produce a range of materials to support this and ensure workers are confident in their communication with children and parents/carers regarding out-of-court disposals.
5. It is also important that children understand the disposal they have received and any potential consequences of failing to complete the required interventions.
6. Children and parents/carers should also be supported by the YJS to fully understand the implications of accepting various out-of-court disposals and any possible implications for their future.
7. Feedback should be gathered about the experiences of children and parents/carers and then analysed to understand what they are saying about out-of-court disposal work.

The Centre for Justice Innovation’s research on Children and young people’s voices on youth diversion and disparity concluded with the following recommendations to improve engagement with children in diversion processes:

• provide relevant and accessible information about legal processes and diversion
• implement effective communication practices
• co-produce tailored intervention plans with children

How to involve victims in out-of-court disposals

The Victims’ Code of Practice sets out the minimum standard for services that must be provided to victims of crime by organisations in England and Wales.

Youth justice services (YJS), police forces and Police and Crime Commissioners are also responsible for meeting victims’ rights under this and have a statutory duty to provide support for victims and to ensure compliance with the code.

Ask for their views

Victims have a right to be asked for their views and for these to be taken into account when a disposal decision is made and where it is not possible for it to be explained why.

YJS management boards must therefore ensure there are arrangements in place to ensure that where possible victims are spoken to and their views obtained and understood before any out-of-court disposal decision is made. Where decisions are made jointly with the YJS, the victims views and what they want to happen should be understood, recorded and shared with decision makers.

It will not always be possible to dispose of a case the way a victim would like, this may be due to practical reasons such as the nature of the offence or the child’s history. However, in these cases, victims should still feel listened to, and the reasons why it is not possible explained, along with what decision makers intend to do.  

Out-of-court-disposal decision-making should not be delayed for the child if it is not possible to get a victim’s views in a timely manner.

Restorative approaches

Victims have a right to receive information about restorative justice processes from the YJS where the offence has been committed by a child.

Restorative justice is available across all out-of-court disposal options both formal and informal where:

• there is some form of intervention
• the child has accepted responsibility for the harm caused
• it is assessed as appropriate for both the child and the victim

YJS management boards should therefore ensure they have arrangements in place to offer a range of restorative justice processes, alongside out-of-court disposals.

The key performance indicator for victims introduced by the Ministry of Justice in April 2023 requires YJS’s to record:

• the number of victims resulting from offences committed by children on the YJS caseload
• the number contacted
• the number of victims who were asked for their view prior to out-of-court-disposal decision making
• the number engaged with on restorative justice opportunities as well as those who requested, and were given, further information and support - including out-of-court disposals
• the number of victims who asked for additional support and how many were provided with information on appropriate victim support services should be counted

It is also important that victims are signposted to support if needed and are regularly updated.

The National Police Chiefs’ Council’s Out of Court Disposal National Strategy 2022-2027 sets out its vision to:

…to drive down reoffending rates through the use of out-of-court disposals and diversionary interventions which change the offending behaviour. We will have a system that’s fair to all keeping the offender and victim at the heart of everything we do and ensures their specific needs are considered.

How to consider diversity and disproportionality in the use of out-of-court disposals  

Children from some groups are overrepresented within children receiving statutory out-of-court disposals, when compared to non-statutory out-of-court disposals. This includes children from some ethnicities and care experienced children.

Find out more about how to adapt for a child’s race and ethnicity.

You should regularly review and analyse data on the children given out-of-court disposals in your area by:

• ethnicity
• care experience
• other protected characteristics

This is to understand the nature and extent of any disparity in accessing diversion. You should then report this to local management boards. If there is an under representation of any group in your area in non-statutory out-of-court disposals, or over representation in statutory out-of-court disposals you should discuss it at your management board and set in place measures to explain or address it. 

You should give careful attention to diversity and disproportionality factors at an early stage in the decision-making process and within monitoring and scrutiny arrangements of out-of-court disposals.

Particular attention should be paid to ensuring that eligibility criteria for non-statutory out-of-court disposals is flexible. Where appropriate children should be given more than one opportunity for diversion and the eligibility criteria should not require a full admission. This is because some children from communities with lower levels of trust in the criminal justice system might be less likely to make a formal admission of guilt.

Youth justice services should work with partners to embed anti-racist and anti-discriminatory practice in their approach to diversion. They should also ensure that there are robust scrutiny arrangements in place.

You should ensure that arrangements are in place to ensure that children from ethnic minorities and children who are care experienced can be diverted into appropriate services which meet their needs and that any barriers to their engagement are understood and overcome.

How to help children and families understand the implications of convictions and disclosure requirements

The Child Gravity Matrix provides details of disclosure requirements against each disposal in its disposal table. Whilst out-of-court disposals are not automatically disclosed as part of a standard or enhanced Disclosure and Barring Service check, they could be disclosed as part of an enhanced Disclosure and Barring Service check if the police consider it relevant.

Formal out-of-court disposals (Youth Cautions and Youth Conditional Cautions) are not removed from the Police National Computer and could be taken into account in future criminal proceedings and disclosed to prospective employers.

Whilst it is rare for the police to include information on an enhanced Disclosure and Barring Service check that doesn’t relate to a conviction, youth justice services should ensure that children and families are made aware of this possibility, particularly for Youth Cautions and Youth Conditional Cautions. The Youth Justice Legal Centre have produced information sheets  for children and families to help then to understand the implications of convictions and cautions and what it means for them.

The scrutiny arrangements for out-of-court disposals

It is the responsibility of youth justice service (YJS) management boards to ensure the quality of out-of-court disposals being delivered in their area and to develop and deliver improvements where required. Further details are set in Standard 1 (out-of-court disposals) of the standards for children in the youth justice system (2019) .

YJS management boards should be provided with regular, comprehensive data and information regarding the use and effectiveness of all out-of-court disposals, both informal and formal, including those issued by the police without the involvement of the YJS.

We would encourage police forces to record data on diversionary outcomes and non-statutory out-of-court disposals. There must be a focus on the views and experiences of children, including understanding their needs, the nature and extent of any disparities and on monitoring outcomes. This will support the drive and focus of appropriate resources and interventions and address disproportionality where it is evident.

National key performance indicators

The key performance indicators (KPI’s) for youth justice services, require YJS’s to record performance for all children on the YJS caseload, rather than just statutory casework. This supports the YJS management board in understanding of the needs of the entire complex cohort of children YJS’s are working with, including children given out-of-court disposals.

There are specific requirements within the KPI’s which will support the board in their assurance and oversight of out-of-court disposals, these include:

First time entrants

The first time entrants performance indicator provides a helpful overview of how many children are entering the criminal justice system at a local level, against various comparator groups.

Out-of-court disposals

The out-of-court disposals performance indicator requires YJS’s to record the number of children completing and not completing out-of-court disposal interventions. This will provide the YJS management board with assurance that interventions attached to out-of- court disposals are being completed and that children are achieving positive outcomes.

Victims

The key performance indicator for victims requires YJSs to record the number of victims resulting from offences committed by children, the number contacted, and the number engaged with on restorative justice opportunities as well as those who requested, and were given, further information and support. YJSs are also required to record the number of victims asked their view prior to out-of-court disposal decision making. This will provide the YJS management board with assurance that the victims code is being complied with and that victims’ rights are being protected.

YJS management boards should review progress against these indicators to improve their understanding of the effectiveness of out-of-court disposals and inform service development and planning.

Local performance indicators

Comprehensive local reporting on out-of-court disposals to the YJS management board, should provide additional assurances as to the quality of out-of-court disposals being delivered in a timely manner and the needs of this cohort of children.

This could include but is not limited to the:

• number and type of out-of-court disposals issued, broken down by disposal type
• numbers of children reoffending following an out-of-court disposal, broken down by disposal type and seriousness of reoffending - it is recommended that local tracking covers the period of 12+6 months to align with published reoffending data
• number of first-time entrants subject to previous formal or informal out-of-court disposals and release under investigation
• demographics of children subject to out-of-court disposals by disposal type including age, ethnicity, gender, education and social care status, offence type
• number of children receiving repeated informal out-of-court disposals
• timeliness of interventions- offence to disposal/intervention

In addition, the YJS management board should be provided with qualitative information on out-of-court disposals.

This could include but is not limited to:

• feedback from children and parents/carers- it is important to actively collaborate and engage children to gather feedback, evaluate practice and support the delivery of services.
• feedback from victims, including victim satisfaction
• case studies
• results of out-of-court scrutiny panels

Referrals

With regards to referrals, monitoring of the diversion scheme should also include oversight and assurance that all appropriate cases are being referred to the scheme by the police and that there have not been missed opportunities for diversion.

YJS management boards should seek assurance that the YJS is notified of all relevant outcomes in a timely manner and that these decisions have been effective in meetings children’s needs and reducing reoffending.

Out-of-court disposal scrutiny panels

Scrutiny panels should be in place within each force area and consist of:

• police
• Crown Prosecution Service
• Office of the Police and Crime Commissioner
• YJS
• Probation
• magistrates
• Independent Advisory Group
• a representative for the victim’s voice
• any other person deemed relevant for the panel, including a representative from the Youth Justice Board’s regional oversight team

The panel will review the use of out-of-court disposals on a series of cases quarterly to consider whether they are appropriate or not. These must include a selection of cases involving children. Best practice would be separate and distinct scrutiny panels for consideration of the use of out-of-court disposals for children and the removal of characteristics unless relevant to the case. Panels should review cases in relation to disproportionality in the use of out-of-court disposals and identify ways to address this. The reviews should look at out-of-court disposals as a whole, as well as in relation to each individual out-of-court disposal option.

The panel cannot overturn decisions; however, learning or good practice may be shared with decision makers and more widely as required. Results should be shared with YJS management boards to support their understanding of the effectiveness of out-of-court disposals in their area.

Out-of-court disposal scrutiny panels consider the appropriateness of decisions, rather than the effectiveness of the interventions themselves. Additional scrutiny is therefore required by YJS management boards as to the effectiveness of interventions being delivered for out-of-court disposals.

Management oversight

The youth justice service (YJS) should also ensure effective arrangements in place for out-of-court disposals which include:

• effective management oversight of out-of-court disposal practice including assessments, planning and interventions and any practice areas requiring further development notified to the YJS management board
• regular audits of out-of-court work should be undertaken and findings reported to the YJS management board

This is a complex area of work that requires specialist skills, including enhanced screening and assessment practice and informed and up to date knowledge on out-of-court disposals. Reduced caseloads are encouraged due to the benefits of effective diversionary activity in improving outcomes for children, victims and the community. Statutory casework should not take priority when determining resourcing as out-of-court work needs to be done properly, with workers being given the time and space they need to plan and deliver interventions and build relationships with children.

Youth justice plans

Youth justice services (YJS’s) are required set out the strategy and processes in place for diversion across the local partnership in their annual Youth Justice Plan. Youth justice plans: guidance for youth justice services This should include how children are identified, how services are delivered and by whom and how success is evaluated. Local policies and procedures should also be regularly reviewed and updated as required.  

Evidence of effective use of out-of-court disposals

The following outcomes are a good gauge of the effective use of out-of-court disposals:

1. There is evidence of out-of-court disposals impact on reducing reoffending rates.
2. There is evidence of an increase in victim satisfaction.
3. There is consistent collecting and recording of data and this is used to improve service delivery and outcomes for children and victims.
4. There is evidence of a reduction in disproportionality in the use of out-of-court disposals which is evidenced through data and there is equality of access to diversion for all children regardless of age, race or background.
5. National guidance is being followed, including the Child Gravity Matrix, Outcome 22 and Community Resolution guidance.
6. The Youth Justice Board’s youth justice plan guidance is followed, and its Data Recording Requirements are being adhered to.
7. There is evidence of a reduction of children becoming first time entrants.
8. There is evidence of improved experiences of children subject to out-of-court disposals.

Which out-of-court disposal cases are in scope for HMI Probation Inspection

Any out-of-court disposal with involvement from a youth justice service (YJS) will be in scope for inspection.

This includes where there is a linked offence and where the YJS is involved in screening, assessment, joint decision or delivering interventions. Wherever this work is to be delivered by another partner, there is a need to ensure consideration is given to appropriate training and experience and recording on YJS case management systems.

There should be effective links and oversight between services as overlaps in provision will be inevitable and out-of-court disposal work remains responsibility the of YJS’s and local YJS management boards.

The resources available to support out-of-court disposal work

There are a wide range of additional resources available to support out-of-court disposal practice.

These include but are not limited to:

The Youth Justice Board Resource Hub

The Youth Justice Resource Hub includes a wide range of practice examples and practice resources.

The Youth Endowment Fund website

The website of the Youth Endowment Fund and its Toolkit are useful. The Toolkit summarises research evidence about different approaches to keeping children safe from involvement in violence. It is based on evidence about what has happened when these approaches have been used before. It summarises the evidence on the impact of approaches, the quality of that evidence, as well as indicative costs and links to related resources and programmes.

The Centre for Justice Innovation

The Centre for Justice Innovation, website includes a ‘valuing youth diversion toolkit’. It includes details of how to access its free Youth Diversion Effective Practice Award. It also has a ‘what is Diversion video’ and a wide range of research papers and briefing notes to support practitioners in the justice system develop and share innovative and effective practice.

The National Police Chiefs’ Council

The National Police Chiefs’ Council provides guidance documents to support the delivery of out-of-court disposals including the Child Gravity Matrix, Outcome 22 guidance and Community Resolution guidance. There is also the out-of-court disposals national strategy and the child centred policing strategy and best practice framework.

HMI Probation

HMI Probation has a range of resources which include research and analysis of the implementation and delivery of Community Resolutions and the role of youth justice services and their inspection standards.

The Crown Prosecution Service (CPS)

The CPS has published revised guidance on  Children as suspects and defendants. The guidance has been updated to reflect the changing landscape of the youth justice system towards a Child First approach, incorporating all recent policy, legislative and terminology updates. The guidance includes the CPS policy on diversion from the court process and updated Youth Cautions and Youth Conditional Cautions guidance.

Further information on Youth Cautions and Youth Conditional Cautions  can be found in the Ministry of Justice (MOJ) Code of Practice for Youth Conditional Cautions. This guidance replaces the YJB’s and MOJ’s ‘Youth Cautions guidance for Police and Youth Offending Teams’ (April 2013 ).

1. Diversionary activity needs to be completed for an Outcome 22 to be applied. Please see the NPCC Outcome 22 Guidance for more information. ↩