Nearly half of all crimes — or 700,000 a year — are handled outside the courts, including shoplifting, burglary and assault. Under a drive in the past decade towards swift, summary justice, police have been given wide powers to impose cautions and fines (fixed penalty notices), and prosecutors can impose conditional cautions.
No one, including magistrates, judges and police, insists that all offences, no matter how trivial, should be brought before the courts.
Out-of-court penalties are efficient and cost-effective, and ministers argue that it is about making the best and proportionate use of responses.
But in the past decade the use of such penalties has soared. The trend took off after police won wider powers in 2001 to impose fixed penalty notices for disorder, which extended the fines to minor nuisance offences.
From the offender’s viewpoint, there are attractions: he or she avoids a trial and gets off with a fine or caution as opposed to a possibly heavier sentence.
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But is it justice? Magistrates have become increasingly alarmed that not just trivial but increasingly serious and violent offences are being diverted from the courts. They have pragmatic concerns that, as more than half of all such fines remain unpaid, the offenders end up in court anyway — so there is no financial saving.
But they also have concerns of principle. Is it right, ask judges and magistrates, that the police or prosecutors should be deciding on sentence in serious violent cases, and away from the public eye?
There is a risk that offenders will feel under pressure to accept a caution, which requires an admission of guilt, unaware that this will remain on his or her record. Courts will be deprived of the opportunity to order appropriate treatment, for a drugs or drink habit, for example.
But, worse, justice is not seen to be done — by the victim or the public at large. And, judges and magistrates say, it is increasingly not done.
With current financial restraints, the pressure on police and prosecutors to use out-of-court penalties will rise.
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The Director of Public Prosecutions and others are right to urge a review. It should not be at the discretion of police or prosecuting authorities, as Lord Justice Leveson says, to be judge and jury and impose sentence.