Out of Court Resolutions
- Introduction
- What are the relevant provisions?
- Who makes the decision?
- How do they make the decision?
- Reconsidering the decision to issue an out of court resolution
- Other forms of diversion
- Restorative Justice
- Other sources of guidance relevant to diversion
- Annex A: Guidance for the Selection of Appropriate Conditions
- Annex B: Diverting Women Offenders and the Women Specific Condition
Introduction
Where there is sufficient evidence, a prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.
In some cases, the prosecutor may be satisfied that the public interest can be properly served by offering the offender the opportunity to have the matter dealt with by an out-of-court resolution rather than bringing a prosecution.
An out-of-court resolution must not be offered to a person who has not admitted to committing the offence and must not be given to an offender who does not agree to accept it.
What are the relevant provisions?
Simple cautions
A simple caution is a formal warning which is issued and recorded as an alternative to prosecution. The following guidance applies: Ministry of Justice - Simple Caution for Adult Offender Guidance. For children, the provision is contained in statute, namely section 66ZA Crime and Disorder Act 1988.
Conditional cautions
Conditional cautions for adults are governed by sections 22 to 27 Criminal Justice Act 2003 and for children by sections 66A to 66G Crime and Disorder Act 1998. Relevant guidance is contained in the Code of Practice for Adult Conditional Cautions 2013 and Code of Practice for Youth Conditional Cautions 2013.
Who makes the decision?
Simple cautions
Only the police have the power to administer a simple caution. As to the decision to administer a simple caution:
“The police may make the decision to offer a simple caution in relation to any summary or either-way offence without reference to the CPS, unless the Director’s Guidance on Charging requires the case to be referred to the CPS for a charging decision.” (paragraph 15 of the MoJ Guidance on Simple Cautions for Adult Offenders)
However, while domestic abuse and hate crime cases must be referred to the CPS for a charging decision, a decision to administer a simple caution in these cases does not have to be.
Under section 17(3) of the Criminal Justice and Courts Act 2015, an adult offender must not be given a simple caution for a specified either-way offence unless a police officer of at least the rank of Inspector determines that there are exceptional circumstances relating to the offender or the offence.
The either-way offences that have been specified by the Secretary of State are:
- Offensive weapon and bladed article offences
- Carrying a firearm in a public place
- Child cruelty
- Sexual offences against children (including those relating to child prostitution and pornography)
- Sex trafficking offences
- Indecent and pornographic images of children
- Importing, exporting, producing, supplying and possessing with intent to supply to another Class A drugs
As per section 17(2) of the Criminal Justice and Courts Act 2015, an offender must not be given a simple caution for an indictable-only offence unless a police officer of at least the rank of Superintendent determines that there are exceptional circumstances relating to the offender or the offence, and the CPS agree that a caution should be given. Where a prosecutor intends to agree that a simple caution should be given for an indictable offence, approval should be sought from a DCCP.
The MoJ guidance sets out a non-exhaustive list of factors to be taken into account when assessing whether there are "exceptional circumstances" and provides an overview of the factors for considering whether a simple caution is appropriate.
Conditional Cautions
Adults
For the purpose of administering an Adult Conditional Caution, an authorised person is a police officer not below the rank of Sergeant, or a person designated as a policing support officer or a policing support volunteer under section 38 of the Police Reform Act 2002 of a rank equivalent to no lower than Sergeant or any person specifically authorised to do so by the Director of Public Prosecutions. An authorised person may offer an Adult Conditional Caution for any summary-only offence and any either-way offence, save for in the circumstances set out below.
The decision that exceptional circumstances exist in any case may only be made by a police officer not below the rank of Inspector.
As Indictable-only offences are the most serious and may attract a custodial sentence on conviction, the maintenance of public confidence in the Criminal Justice System will ordinarily require such cases to be dealt with at court.
Where a police officer of the appropriate rank considers that there are exceptional circumstances which mean an indictable-only offence may be suitable for a Conditional Caution, the case must be referred to the CPS for a prosecutor to make the decision. The decision to authorise a Conditional Caution in any indictable only case must be approved by a Deputy Chief Crown Prosecutor.
Children
The CPS recognises the relative lack of maturity and greater vulnerability of children and young people when deciding whether to prosecute.
It has been agreed between the NPCC and the CPS that a serious response is required for youths aged 16 and 17, and who are accused of knife and other offensive weapons offences. This approach is covered in the joint NPCC/CPS Guidelines on the Cautioning and Charging of Knife Crime Offences.
For the purpose of administering a Youth Conditional Caution, the authorised person is a police officer of at least the rank of sergeant, or a suitably qualified police officer (such as a police officer seconded to the Youth Offending Team), or a person designated as a policing support officer or a policing support volunteer under section 38 of the Police Reform Act 2002 of a rank equivalent to no lower than Sergeant or any person specifically authorised to do so by the Director of Public Prosecutions.
In the case of a Youth Conditional Caution, the prosecutor should consult the Youth Offending Team before making a final determination or directing an authorised person to offer the Youth Conditional Caution.
The decision to authorise a Conditional Caution in any Indictable Only case must be approved by a Deputy Chief Crown Prosecutor.
Domestic Abuse
It is unlikely that domestic abuse in intimate (whether current or previous) partner cases would never be appropriate for a Conditional Caution. This is because of the repetitive pattern of domestic abuse and the risk experienced by victims. An out of court resolution also precludes some protective orders which would be available in the event of a prosecution such as a restraining order.
However, where there are no elements of controlling and coercive behaviour or stalking, and where there is no pattern of abuse or repetitive behaviour there may be rare occasions in domestic abuse cases not involving intimate partners where a Conditional Caution could be considered.
From 1 August 2024, all police forces have been able to authorise Conditional Cautions where the case meets the following criteria:
- the case involves lower-level offending (less serious offences where the circumstances of the offending mean the suspect would not receive a custodial sentence or high-level Community Order), and
- the victim is of standard risk, and
- the case complies with the pre-conditions set out in the draft Code of Practice for Out of Court Resolutions
Forces can continue to refer exceptional cases through to the CPS on a case by cases basis where they fall outside of the existing pre-conditions. The specific prosecution guidance on Domestic Abuse may be helpful when considering whether this is an exceptional case.
If a Conditional Caution or Youth Conditional Caution is being considered by a prosecutor for an offence involving domestic abuse approval must be sought from the Deputy Chief Crown Prosecutor.
Hate Crime
Conditional Cautions are considered to be generally inappropriate in Hate Crime cases and can only be given in exceptional circumstances with the authority of a CPS prosecutor.
For a suspect in a hate crime case to be eligible for a Conditional Caution (or any other type of out-of-court-resolution) they must have admitted the ‘basic’ offence and the additional hate crime element.
If a Conditional Caution or Youth Conditional Caution is being considered by a prosecutor for a hate crime offence, approval should be sought from the Deputy Chief Crown Prosecutor.
How do they make the decision?
Adults
Before an out-of-court resolution can be considered, there must be sufficient evidence available to provide a realistic prospect of conviction in accordance with the Full Code Test set out in the Code for Crown Prosecutors.
Once the evidential test is met, the decision maker must then consider whether a prosecution is required in the public interest, or whether they are satisfied that the public interest can be properly served by an out-of-court resolution.
The decision maker must be satisfied that a prosecution will continue to be necessary, and could go ahead, should the offer of an out-of-court resolution be declined or if the offender does not complete or comply with any conditions.
In determining whether an out-of-court resolution is appropriate to the circumstances of an offence decision makers should consider each of the questions set out in paragraphs 4.14 a) to g) of the Code for Crown Prosecutors, to identify and determine the relevant public interest factors tending for and against prosecution. Those factors, together with any public interest factors set out in relevant guidance or policy issued by the DPP, should enable prosecutors to form an overall assessment of the public interest.
An assessment of seriousness of the offence is the starting point for considering whether a simple caution may be appropriate. The more serious the offence, the less likely it is that a simple caution will be appropriate.
In assessing seriousness police officers should use the National Decision Making Model and the College of Policing Gravity Factor Matrix. Decision-makers should also carefully consider the sentence likely to be imposed in the event of a conviction, taking into account the Magistrates’ Courts Sentencing Guidelines. Offences which are likely to result in a custodial sentence (whether immediate or suspended) or a high-level community order should generally be prosecuted. If the offence is also a sexual offence or involves violence against the person especial care should be exercised before offering an out-of-court resolution.
Children and Young People
The decision to divert children and young people is still one to be made under the Full Code Test with reference to the factors identified above.
The police will take into account the offending history and the seriousness of the offence when deciding whether to issue a youth caution. Offence seriousness is determined by reference to the NPCC Child Gravity Matrix, which is the decision-making tool used by police officers to assist in deciding the most appropriate outcome or resolution for children who offend. It sets out the most prevalent offences, and provides a score of 1, 2, 3, 4 or 5. The score may be raised or lowered by one, according to aggravating and mitigating factors which are set out in the Matrix.
An offence that attracts a gravity score of 3 will usually result in a youth being given a youth caution. If the offending behaviour cannot be satisfactorily addressed by a youth caution, or the offence attracts a gravity score of 4, the police will consider a youth conditional caution.
There is no statutory restriction on the number of cautions a child can receive; it is immaterial whether they have received a conditional caution previously and a simple caution is now proposed. However, where the suspect has been given two Youth Conditional Cautions and continues to offend, a further Youth Conditional Caution is unlikely to be effective in preventing offending and should not be offered as an alternative to prosecution.
Offences committed by Relevant Foreign Offenders
The Code of Practice makes specific provision for offences committed by Foreign Offenders where a Conditional Caution is proposed to facilitate the removal of the offender from the jurisdiction and ensure non-return. In such cases the greater public interest is in removal from the jurisdiction and the Code permits consideration in any case where the decision maker determines that the likely sentence to be imposed by the court for the offence concerned will not exceed 2 year's imprisonment. Further guidance is provided below on how that may be assessed. The authorised person or prosecutor must record the reasons for reaching this conclusion in any case.
The offender may be required to:
- report regularly to an immigration office, reporting centre, police station or other similar place, pending removal
- obtain or assist authorities in obtaining a valid national travel document
- comply with removal directions and any lawful directions given to effect departure
- not to return to the UK within a specified period of time, normally 5 years as set out in the Immigration Rules
Priority should be given to conditions to facilitate the early removal of the offender from the UK. Any other rehabilitative, reparative, or punitive conditions appropriate to the circumstances of the case may also be included provided the circumstances of the offender and any detention under immigration powers permit completion. Other conditions should not be included if they are likely to delay the removal or may not be completed prior to the likely removal date.
The normal period not to return should be 5 years. There may however be indictable only cases involving a foreign offender where a prosecutor considers that exceptional circumstances exist permitting the offer of a Conditional Caution including a condition preventing return for a period of 10 years instead.
Such conditions may only be offered to a foreign offender who does not have leave to enter or remain in the UK and in respect of whom there is power to enforce departure. They cannot be offered where the offender makes or has an outstanding asylum or human rights claim to remain in the UK or where the offender admits to committing a document or identity fraud offence in order to make a claim for asylum or where the offender may be a trafficked victim.
This does not prevent foreign offender conditions from being offered where the asylum or human rights claim has been refused (and any appeal against that refusal has been finally determined), where the relevant foreign offender voluntarily withdraws the claim, or where the relevant foreign offender's grant of asylum has been revoked or not renewed by virtue of paragraph 339A of the Immigration Rules. The police must consult the UK Border Agency who will confirm the offender's status and that of any dependents and whether the individual can be removed from the UK. This information must be available to the decision maker at the time the Conditional Caution is offered.
Reconsidering the decision to issue an out of court resolution
Occasionally there are cases where the CPS will overturn a decision not to prosecute or to deal with the case by way of an out-of-court resolution or when it will restart the prosecution, particularly if the case is serious. These cases include:
- where the offender has subsequently refused or failed to accept the caution
- where a further review of the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision
In circumstances where an offender fails to comply with, or breaches a conditional caution, the decision must be taken whether to prosecute the original offence. This is a decision which is made in accordance with the Code. Prosecutors will additionally wish to bear in mind any relevant statutory time limit(s) and the extent to which conditions were complied with prior to the breach.
Additionally, there may also be circumstances where, after an offender has been charged, circumstances arise or representations are made which cause a prosecutor to reconsider whether it is now appropriate to deal with the case by way of an out-of-court resolution.
In such circumstances, the prosecutor will review the case, applying the Code and reach their decision about disposal. The prosecutor can re-review the case at court and reach a decision. Only where further information is required which is determinative of a decision should an adjournment be necessary.
If the decision is that the public interest is best met by an out-of-court resolution, the prosecutor should request that the police offer a caution or Conditional Caution. An application should be made to the court for the case to be adjourned whilst this action is taken.
If the application for an adjournment is refused, if the police decline to issue the caution or Conditional Caution or if the suspect does not accept the caution or Conditional Caution, the prosecutor must review the case afresh and ask whether the prosecution should continue or the case should be stopped, applying the established principles of public interest test.
There are also circumstances where out of court resolutions become relevant to the decision to take over a private prosecution, especially where a prosecution has been brought where a resolution has been authorised. There is more information about such circumstances in the Private Prosecutions prosecution guidance.
Other forms of diversion
Simple and Conditional Cautions are the only formal resolutions which fall short of prosecution; but they are not the only way to divert an individual from the criminal justice system.
Other options include taking no action, formal words of advice and giving an informal (non-citable) warning, such as a Community Resolution. Prosecutors may also suggest to the police, for example, the issuing of a Penalty Notice for Disorder.
A Penalty Notice for Disorder (PND) is a statutory resolution introduced by the Criminal Justice and Police Act 2001 (sections 1-11). A PND is a type of fixed penalty notice for a specified range of low-level offences, for example Drunk and Disorderly. It is only available to those over 18 years of age.
The Ministry of Justice has guidance on Penalty Notices for Disorder (PNDs).
A caution is a serious matter. It is recorded by the police and may be cited in subsequent court proceedings. It represents one form of entry into the criminal justice system. Prosecutors should be aware that the existence of a formal method of disposal falling short of prosecution gives rise to a danger that an offender may be cautioned when a more informal action might have been more appropriate.
Restorative Justice
Restorative justice (RJ) has been defined as a process through which parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future.
Sections 3.4 and 3.5 of the Victim's Code (January 2025) contains a detailed explanation of RJ with the intention of raising awareness of RJ amongst victims of crime.
RJ can take place at any stage of the criminal justice process including after conviction, but it is more common for the RJ process to be used before a case comes to court, i.e. as part of an out-of-court resolution.
In relation to adult offenders, prosecutors are most likely (although not exclusively) to encounter RJ when considering the use of reparative conditions as part of a conditional caution.
RJ processes are more widely used with youth offenders. The Youth Justice Board includes RJ within its national standards for children in the youth justice system, a standard regulating RJ and work with victims of crime. RJ can be used in youth cases as part of an order on conviction and as part of a rehabilitation programme delivered by the Youth Offending Team following a youth caution or youth conditional caution.
Restorative processes can also be effective and proportionate responses to low level offending where the public interest does not require a formal criminal justice disposal and can form part of an Acceptable Behaviour Contract and to resolve offending behaviour in schools and children's homes. For more information see guidance elsewhere on Children Looked After and Behaviour Management Policies.
As the police have the power to administer a conditional caution without referring the matter to the CPS (except for in the circumstances outlined above) it will be relatively rare for prosecutors to become involved in RJ considerations under the conditional caution scheme.
Involvement in an RJ process can either be made a part of a conditional caution where both victim and offender agree to take part; or the RJ process can itself be the way in which the conditions of the cautions are arrived at. RJ processes must always be voluntary for both the victim and the offender and the police should (unless there are exceptional reasons not to) seek and record the views of the victim with regards reparation.
Whilst the Victim’s Code allows victims of domestic violence to take part in restorative justice techniques, the National Police Chief’s Council (NPCC) policy does not support the use of restorative justice in these cases. Where a victim of domestic abuse demands restorative justice, it should only take place after careful consideration and advice from supervisors or experts. Prosecutors should give careful consideration to ensuring that:
- the victim’s safety is paramount
- there has been a thorough risk assessment
- the victim is a willing participant and that there are no coercive influences
- the facilitator is properly trained and experienced in dealing with these sensitive cases
Either type of link between RJ approaches and conditional cautioning will require the prosecutor to have an understanding of RJ, the type of case in which it might be appropriate and the offender’s background. RJ works best where the offender is committed to participating in a meaningful way, rather than simply trying to avoid being prosecuted. Therefore, prosecutors should look for some evidence in the referring officer’s report that the particular offender is considered suitable for an RJ based disposal and an indication of the anticipated outcome of that participation.
The prosecutor will also need an understanding of how onerous RJ processes are for all taking part. This should be taken into consideration when deciding what other conditions might be appropriate to ensure that, overall, the conditions are proportionate to the gravity of the offence.
More information can be found on the Restorative Justice Council website and the College of Policing guidance.
Other sources of guidance relevant to diversion
Code for Crown Prosecutors - all editions and translations
Children as suspects and defendants
Racist and Religious Hate Crime
Disability Hate Crime and other Crimes against Disabled People
Homophobic, Biphobic and Transphobic Hate Crime
Referrals, approvals, and notification
Guideline on the Cautioning and Charging of Knife Crime Offences
Annex A: Guidance for the Selection of Appropriate Conditions
Reparative
To make good the loss sustained by the victim or community and to repair relationships, e.g.:
- to pay compensation, or to make payment to an appropriate local charitable or community fund
- to personally repair or make good the damage
- to undertake unpaid work not exceeding 20 hours (or 10 in the case of a Youth Conditional Caution)
- to write a letter of apology
- to participate in restorative justice mediation
A restrictive condition may be included with any of the above where to do so would assist in the achievement of one of the above objectives provided it is appropriate and proportionate to the offending behaviour and subsists for a reasonable period of time, e.g. not to approach a named victim, or specified property, or geographical location or specified event or a curfew.
Rehabilitative
To stop or modify offending behaviour, or help reintegrate the offender into society, e.g.:
- not to commit further offences for a defined period of time
- to attend a referral programme specifically related to the nature of the offending behaviour
Punitive
To punish where there are no other appropriate conditions or those conditions do not provide an appropriate and proportionate response to offending behaviour, specifically:
- to pay a financial penalty
Foreign Offender Conditions
To effect departure from the UK and ensure non-return for a specified period:
- to depart from the UK as soon as reasonably practical and no later than (specified date)
- to comply with any lawful instruction to effect removal from the UK
- to produce and surrender to UKVI a valid national travel or identity document
- to not return to the UK for five years as set out in the Immigration Rules and thereafter only in accordance with the Immigration Rules
Compensation for Personal Injuries
A list of suggested starting points for physical and mental injuries can be found on the Sentencing Council’s website.
Annex B: Diverting Women Offenders and the Women Specific Condition
In 2006 Baroness Corston published 'A Report by Baroness Jean Corston of a Review of Women with Particular Vulnerabilities in the Criminal Justice System' (‘the Corston Report’). The Corston Report together with the Government's Response to the Report published in December 2007, highlights how:
- women with histories of violence and abuse are over represented in the criminal justice system and can often be described as victims as well as offenders
- proportionately more women than men are remanded in custody
- women commit a different range of offences from men. They commit more acquisitive crime and have a lower involvement in serious violence, criminal damage and professional crime
- drug addiction plays a substantial part in all offending and this is disproportionately the case with women, and
- mental health problems are far more prevalent among women in prison than in the male prison population or in the general population
The government reviewed the progress made against the recommendations and published an updated Female Offender Strategy in June 2018.
The strategy confirms that for all offenders, custody should be a last resort, reserved for the most serious offences. The impact of custody on women, many of whom are sentenced for non-violent, low level but persistent offences, often for short periods of time, is particularly significant.
The prevalence of anxiety and self-harm incidents is greater than for male prisoners. As more female offenders are primary carers than their male counterparts, custodial sentences lead to a disproportionate impact on children and families and a failure to halt the intergenerational cycle of offending.
The evidence review suggests that interventions should be tailored appropriately to the particular needs of women and that this can be more effective than applying a generic approach to men and women alike.
Where Women’s Centres or Women Only Conditional Cautioning Projects exist, a Conditional Caution can be issued to women offenders requiring them to attend a full needs assessment at an appropriate Centre. The aim of the intervention is to address and reduce the offending behaviour and break the pattern of offending (in particular, of those who have experienced domestic abuse).
Where women have committed minor offences or sometimes even offended on a persistent basis (for example, shoplifting) and there is good reason to believe that the imposition of a condition involving a referral to a Women's Community Project or similar may properly address the individual's criminal behaviour, a conditional caution with a WSC may be an appropriate resolution.
The referral of the offender to a Women's Community Project or similar is a rehabilitative condition. Such a condition may be useful where various factors relevant to the woman concerned are identified at the time of decision making. These could include:
- evidence of domestic or sexual abuse
- mental health issues
- drug use
- alcohol dependency, and
- parenting issues
More information about projects is available.