Rethinking the Gateway: Using Evidence to Reform the Criminal Justice System for Victims and People who Offend

Abstract: The operation of the ‘Gateway’ to the criminal justice system is a critical aspect of its effectiveness. The Gateway or entry to the formal criminal justice system in England and Wales centres on decisions taken in the police custody suite. Dependent on the decision of the custody officer, a suspect will be released without charge, diverted or prosecuted. In making their decision, the custody officer needs to filter out cases where there is insufficient evidence or no public interest in prosecution, while focusing increasingly scarce resources on harmful and persistent cases, on prevention and on protection for victims. Making these decisions in the Gateway requires the best evidence available, from either research, witness testimony or forensics, rather than reliance on precedent, experience, prejudice and assertion. The research evidence is clear that we should, if possible, avoid putting suspects, particularly young people, into the formal criminal justice system (Petrosino et al., 2010). However, in considering alternatives, we need to listen to victims, who need to be convinced that the criminal justice system has taken their crime seriously and made a credible effort to prevent it recurring. In this context, Out of Court Disposals (OOCDs) have become a key area for policy and political focus. Every decade for the last 40 years there has been a see-sawing between expansion of the use of OOCDs and a policy panic about their use and potentially their abuse. This decade has been no exception. On the one hand, in 2014, the Justice Secretary announced efforts to restrict their use for indictable offences and the National College of Policing and the Ministry of Justice commenced a process of consultation with a view to producing legislative and procedural changes. On the other hand, in April 2013, the same government had changed the previous requirement that the Crown Prosecution Service must decide on the suitability of cases for conditional cautions, devolving the decision to the custody officer in the police station. Furthermore, the Anti-Social Behaviour Act 2014 created a new ‘community remedy’ – a conditional warning process. Both the attempts to restrict OOCDs and the proposals to expand them rely on assumptions about the effectiveness and cost-effectiveness of prosecution and alternatives to prosecution, on the ability of the police to set and manage conditions for people who offend and on the acceptability of OOCDs to victims. This paper will explore whether the time has come, after decades of incremental and largely untested tinkering, for a radical redesign of the Gateway based on the best evidence available. Starting with a review of what is already known, it will draw on recent research on risk prediction, deterrence and desistance to look afresh at the processes that determine the route that individuals take once they enter the criminal justice system. It will draw heavily on a recently completed experiment, Operation Turning Point, which has tested some of the options for redesign in an operational context.