Soft justice fears as first-time criminals to avoid court
Police are to be given a list of crimes including drug possession, theft and shoplifting for which first-time offenders should be given cautions rather than going to court.
On Wednesday, the Ministry of Justice (MoJ) will publish a new draft code of practice that sets out how police can allow officers to deal with “low-level” and “first time” offences outside the courts.
However the guidance, which is under consultation, fuelled accusations of soft justice as critics warned that instead of “nipping lower-level criminality in the bud”, offenders who go unpunished would be encouraged to “escalate their criminality”.
Police have been at the centre of rows over effectively decriminalising offences such as theft, shoplifting and burglary through a lack of action.
It comes as the Government faces a record backlog of cases in courts and an overcrowding crisis in prisons after a surge in the jail population.
Damian Hinds, the prisons minister, said: “The current system for these punishments has grown unwieldy, and has led to inconsistencies in their use.
“This simplified system will ensure victims see justice being delivered, better nip lower-level criminality in the bud and guarantee the most serious offenders always face the full glare of the courtroom.”
There are concerns there has been a patchwork approach, with some forces inappropriately allowing offenders to avoid prosecution.
The new code is likely to lead to an expansion of “diversion” schemes already introduced by some police forces, where people caught for “minor” offences for the first time can escape prosecution with a caution if they agree to change their behaviour.
The list of “minor” offences includes possession of drugs including cocaine, as well as cannabis, if they agree to undergo an education programme.
Also included are “summary” offences normally handled by magistrates such as shoplifting, burglaries, minor thefts, criminal damage and assaults.
Persistent offenders will also face tougher sanctions under the new system, ministers have insisted.
‘Overly lenient approach to crime’
It emerged on Tuesday that ministers are also considering mandatory jail sentences for prolific offenders including repeat shoplifters, burglars and thieves.
For the first time, the Government will also spell out the more serious offences for which criminals will not be eligible for cautions, including drug-dealing, knife possession, assaults causing grievous bodily harm, and sex offences.
Cautions were first introduced in the 19th century but expanded in the early 20th century, largely for motoring offences.
They have developed into multiple forms beyond simple cautions to cannabis warnings, penalty notices for disorder and community resolutions.
Out of court disposals, largely made up of community resolutions, rose by nine per cent and accounted for 16 per cent – or 164,000 – of all the one million-plus offences prosecuted through the criminal justice system in the past year.
Offenders will have to admit their offence to be eligible for a caution and agree to conditions aimed at rehabilitation or doing work to benefit their community.
That could include cleaning up graffiti, treatment to wean them off their drug habit or paying compensation to victims.
They will avoid a criminal record once they have completed their work or treatment, but will be fined or prosecuted if they subsequently breach the conditions or reoffend.
Rory Geoghegan, founder of the Public Safety Foundation, who is also a former No 10 adviser and a former police officer, warned the system could undermine attempts by the Government to end the “overly lenient approach to crime and the criminals who commit it”.
“Residents of areas blighted by quality of life crimes like shop theft, bike theft, and the possession of crack, heroin, and cannabis will take little comfort from any proposals that enable criminals, at the start of their criminal careers or after not having been caught for a while, to simply continue or even escalate their criminality,” he said.
The Telegraph has previously revealed how not a single personal, vehicle or bike theft, or burglary has been solved in between half and two-thirds of the 30,100 neighbourhoods in England and Wales.
Under the new two-tier system, there will be community cautions for the lowest-level crimes where a breach of the conditions will only result in a fine, without any criminal record.
Failure to pay the police fine would, however, lead to court action for criminal behaviour.
“Diversionary cautions” will be for the next tier of crimes such as burglary, theft, shoplifting, drug possession and assault causing actual bodily harm where a breach of the conditions could result in prosecution for the original offence.
Anyone given a diversionary caution will have a criminal record, which has to be declared on any job application until it is spent, either after three months or – if they complete their conditional tasks – before then.
A government spokesman said: “It is a simpler two-tier caution system designed to deal with low-level and first-time offences in a proportionate way outside of court, while sending a clear message that serious, persistent offenders will always be pursued rigorously through the courts.”
Cdr Alison Heydari, lead for the National Police Chiefs’ Council (NPCC) on out of court sanctions, said the new system would enable officers to “divert those away from offending behaviours those who otherwise might have entered the criminal justice system”.
“The strategic intention is to support, educate and rehabilitate where it is appropriate to do so, leading to better life outcomes for families, communities and wider society,” she said.
It comes amid a backlog of nearly 320,000 cases in the magistrates’ courts and 61,000 in the crown courts, with many victims having to wait more than a year for justice.
Around 1,500 criminals could also dodge jail this year because of a lack of prison cells, an analysis of government data suggests.
There were only 971 prison spaces left at the end of last week, with a total of 86,602 men and women held in jails in England and Wales.
Government projections suggest the growth of the prison population could outpace the supply of jail cells.
By this November, the MoJ projects the number of offenders or people held on remand in jails will hit 89,100.
However, there will only be 87,573 operational places – leaving a shortfall of 1,527.
Labour, which carried out the analysis, said it would mean prisoners would have to be released early or judges would have to find alternatives to sending some convicted offenders to jail, such as community or suspended sentences.
On Tuesday, shopkeepers warned that police must do more to catch and prosecute shoplifters if the Government’s promised sentencing crackdown is to work.
Ministers have raised the prospect of mandatory prison sentences for prolific offenders in a move aimed at tackling a crime estimated to cost the economy almost £2 billion a year.
More than a million shoplifting offences are estimated to take place each year. However, in 2022, just 21,000 people were prosecuted, with the majority receiving fines after pleading guilty by post.
Tom Ironside, from the British Retail Consortium, said: “While we welcome the Government’s intention to crack down on repeat offenders, increasing sentencing can only work if the police catch and the justice system sentences these criminals.
“We particularly need to see more resourcing by local police forces in addressing retail crime, which has surged over the last year.”
