Outcome 22: are the police utilising
this important diversionary tool
or leaving it on the shelf?

David Lammy’s landmark review of racial bias in the Criminal Justice System (‘CJS’), made many key recommendations to help improve trust and fairness in the CJS when it was published in 2017. One of which was to expand the use of the deferred prosecution for adults and young offenders.

In response to this, Police Outcome Code 22 ("Outcome 22") was introduced and came into force on 1 April 2019. This was a police outcome code which can be used when the police decide to defer prosecution until the accused has been given the opportunity to engage with an intervention activity which is aimed at keeping them out of the CJS.

The introduction of Outcome 22 has generally been seen as a positive development as it recognises that intervention, as opposed to taking formal action, can have a positive impact on reducing reoffending, particularly for young people. However, since the implementation of Outcome 22 it is not yet clear how many police forces are actively considering and effectively using this outcome code.

Outcome 22 – what is it and when should it be used?

For all crimes recorded the police must assign an outcome code. Outcome 22 is the most recently introduced outcome code, after Outcome 21 which was introduced to deal with cases involving youth produced sexual imagery (also known as ‘sexting’) in January 2016 (see our blog on this topic).

For a crime where Outcome 22 is recorded, the Police National Computer will read as follows:

‘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’.

In practical terms, it means that the police can decide to defer prosecution until the accused has been given the opportunity to engage with an intervention activity. The actual intervention activity which is engaged in will vary depending on the nature of the offence and the options available to that force. The activity should serve the purpose of addressing the individual’s offending behaviour and diverting them away from further offending.

Notably, unlike some out of court disposals such as community resolutions, the suspect is not required to admit guilt and accept responsibility for the offence. This is not a way for the offender to avoid being held accountable for their actions. Rather, the offer of diversion as opposed to immediately criminalising an individual recognises their capacity to change and do better in the future. It is certainly not a ‘get out of jail free card’ but is a tool which should be utilised by the police to encourage individuals to stay out of the CJS in the long term.

Guidance issued by the National Police Chief’s Council (the ‘Guidance’) published in March 2019 sets out various circumstances in which Outcome 22 would be appropriate, such as in the early stages of an investigation where the evidential threshold is not met but the offender agrees to diversionary activity or where the diversion can be used as an alternative to prosecution/further investigation with the consent of the complainant.

Interestingly, the Guidance also sets out examples of cases where Outcome 22 would be the most appropriate outcome which includes some drugs possession cases and low level sexual offences. In these cases the Guidance suggests that offenders can be diverted to an educational course, which is extremely positive, particularly for young people, as it recognises that lack of awareness on these matters is a prominent reason why many people commit these types of offences in the first place.   

FOI requests: what did we learn about police use of Outcome 22?

In March 2020, Kingsley Napley submitted Freedom of Information (‘FOI’) requests to the Metropolitan Police, Greater Manchester Police (‘GMP’) and West Yorkshire Police regarding the frequency of use of Outcome 22 and the types of alleged offences where it has been recorded.

Unfortunately, neither the Metropolitan Police nor the West Yorkshire Police had implemented Outcome 22 until April 2020 so they were unable to provide any data on how often the outcome had been used.

On 16 October 2020, GMP responded to provide information on the number of times Outcome 22 had been attached to crimes with a created date between 1 April 2019 and 7 September 2020, excluding ‘cancelled crimes’.

The data does provide some interesting insight into the extent to which Outcome 22 has been used by the force and the types of offences the police consider it appropriate. The response sets out that:

• There have been 347 crimes where Outcome 22 was recorded. To give an idea of how this compares to overall crime level, the most recent set of crime data published by the Office for National Statistics (ONS) shows that in the year ending June 2019, there were 328,268 crimes recorded by GMP (excluding fraud).
   
• There have been 397 suspects given an Outcome 22 (some of the 347 crimes had multiple suspects – e.g. in one shoplifting matter, both suspects were given an Outcome 22).
   
• A number of serious offences have been resolved by giving the suspect(s) an Outcome 22:
• Sexual assault of a female child under 13 – two suspects in separate crimes
• Possession of a controlled drug – 29 suspects
• Possession of a controlled drug with intent to supply – 6 suspects (all cannabis)
• Rape of a female under 16 – one suspect
• Attempted rape of a female aged 16 or over – one suspect

Conclusions from the data

The snapshot provided by the GMP shows that there is at least some willingness by certain police officers to use Outcome 22 to defer suspected offenders away from the CJS whilst a plan to divert them away from further offending is implemented. This notably even applies in some cases involving serious allegations. However, as a proportion of total offences committed the frequency of the use of the outcome is miniscule.

This dataset also does not include data on successful completion or the impact on offending or reoffending, it is perhaps too soon for this. As the prosecution is deferred dependant on successful completion, those who do not successfully complete the prescribed work can expect to be prosecuted. It is not yet clear whether this is considered an aggravating factor when it comes to later sentencing or whether it acts to limit the community based options for future sentencing.

Whether Outcome 22 is being actively considered in all appropriate cases, particularly where a young person is involved, is not clear. We would suggest that making the outcome available to police forces is not enough to ensure that they actually use it properly in practice. Further data must be collected from all forces, not only on the frequency of the use of the outcome but also its effectiveness in preventing reoffending together with the age, ethnicity and other relevant demographics of suspected offenders. However, on the basis of the data we have already obtained we believe that it is clear that a more radical approach is needed if Outcome 22 is to effectively reduce youth crime and reduce racial bias in the CJS.

Further information

For further information on issues raised within this blog, please contact a member of our criminal team.

About the authors

Maeve Keenan is an Associate in the Criminal Litigation team. She has represented clients on a wide range of general crime matters including road traffic, public order, allegations of serious violence and both historical and current sexual offences. She is instructed on cases ranging from the initial stages of criminal investigations through to trials, including working on a number of Crown Court matters since qualification.

Tom Surr is the Head Paralegal in the Criminal Litigation team. He is a former police officer, having served in the Met Police for just over two years as the Dedicated Ward Officer for the ward of Kilburn in North-West London. He left the police to pursue a career in law, working briefly in the Crown Prosecution Service’s Extradition Unit as a paralegal before joining Kingsley Napley.