The Magistrates’ Association’s new position statement on Out-of-Court Resolutions lands with a now-familiar framing: a “shadow justice system” operating without oversight, eroding open justice, expanding into territory where the bench should sit.
It’s a powerful phrase. It’s also the wrong starting point.
If we’re serious about reducing reoffending, supporting victims, and making the criminal justice system work, the question isn’t whether OOCRs bypass the courts. The real question is whether the courts produce better outcomes than the alternatives, and in a meaningful number of cases, they don’t.
Where the MA is right
Let me be clear on where I agree. The inconsistency across force areas is real, and it’s the single most problematic issue of the current landscape. A person committing a low-level offence in one force area might receive a structured behaviour change intervention delivered by a commissioned provider with outcome data, supervision, and a pathway into wider support. The same offence in the neighbouring force might get a verbal warning, a community resolution logged on a spreadsheet, or nothing at all.
That in many ways is a postcode lottery. And it gives critics, including the MA, legitimate ammunition.
If the sector wants OOCRs to survive and scale, it has to own this. A national framework, minimum intervention standards, consistent data reporting, and genuine accountability aren’t threats to the model. They’re what secure it.
Where the argument breaks down
But the MA’s wider critique rests on an unexamined assumption: that a magistrates’ court appearance is inherently the more robust, more proportionate, more transparent outcome. For a lot of the offending that ends up in OOCR, it simply isn’t.
Consider what a magistrates’ court actually delivers for a first-time, low-level offender. A listing delay measured in months. A fine they often can’t pay. A conviction that damages employment prospects, housing, and, crucially, the chances of desistance. In many cases, no structured intervention at all. The process is visible; the outcome is thin.
Compare that with what a well-commissioned OOCR pathway looks like. Rapid contact with the offender while the offending behaviour is still live in their mind. A structured programme of behaviour change, CCBT, or psychoeducation, delivered by trained facilitators. Victim input where appropriate. Measurable completion and reoffending data. Often, a referral into wider health, housing, or employment support that a court couldn’t have mandated anyway.
Open justice matters. But open justice without a rehabilitative outcome is just public process. And process isn’t the point of the system. Outcomes are.
The commissioning process the MA overlooks
There’s a second, more important reframe. The MA’s reports repeatedly treat OOCR delivery as if it operates in a regulatory vacuum, a parallel system with no checks, no standards, and no accountability. That’s not what’s happening in the areas where commissioning is working.
When a PCC, OPCC, or police force commissions an OOCR intervention, that service doesn’t just appear. It goes through a formal procurement process, often an open tender, with a published specification, technical evaluation criteria, quality thresholds, social value weighting, and financial scrutiny. Providers bid against defined outcomes. They have to evidence their delivery model, their facilitator competencies, their safeguarding arrangements, their data capture, and their track record on comparable contracts. Most procurements won’t even shortlist a provider who can’t demonstrate a body of prior delivery with measurable outcomes.
In other words: by the time an offender sits down for a CCBT session or a behaviour change programme, the intervention they’re receiving has already been through a level of scrutiny that most court disposals never face. It’s been specified by commissioners, evaluated against evidence base, benchmarked against best practice, and awarded to a provider with a demonstrable record. Contract management then continues that scrutiny throughout delivery, through KPIs, quarterly reviews, outcome reporting, and contract variation mechanisms where performance slips.
On top of that, credible providers run their own internal quality assurance. Facilitator observations, case file audits, supervision frameworks, clinical oversight where appropriate, participant feedback loops, and reoffending tracking aren’t optional extras. They’re how a provider retains the contract and wins the next one. The commercial incentive aligns neatly with the public-interest one: a provider whose outcomes drop loses work. That’s a sharper accountability mechanism than exists in most parts of the statutory system.
And there’s a further point that rarely gets made. The procurement model actively encourages innovation, flexibility, and creativity in a way the current statutory system structurally can’t. A magistrates’ court disposal is bounded by legislation, sentencing guidelines, and the available toolkit. With the best will in the world, the bench can’t commission a bespoke intervention tailored to the offender in front of them. Probation, operating under national contracts and central frameworks, has seen its scope for local innovation narrow year on year under cost pressure and bureaucratic drag. Commissioned OOCR providers, by contrast, are asked during procurement to demonstrate how they will innovate: how they’ll use digital delivery, how they’ll integrate with local health and housing pathways, how they’ll adapt for neurodiversity, how they’ll iterate the model based on outcome data. That’s written into the specification. It’s scored. It’s contractually required.
This is the bit the Magistrates’ Association reports consistently fail to acknowledge. The critique assumes that because magistrates aren’t in the room, no one is. But commissioners are. Contract managers are. Police scrutiny panels are. Provider QA functions are. And, increasingly, academic evaluators are.
The transparency gap the sector can close
None of that is to say everything is visible. It isn’t. The data generated through procurement, delivery, and contract management largely doesn’t flow back to the courts, or, frankly, into the public conversation. Magistrates don’t see the specification documents. They don’t see the outcome dashboards. They don’t see the reoffending data six or twelve months on.
That’s a failure on the provider and commissioner side as much as anywhere else. The sector has been poor at telling magistrates, policy leads, and the wider public what actually happens when someone enters an OOCR pathway. Too often the bench’s image of an OOCR is a caution handed out at a custody desk, not a twelve-week evidence-based intervention with structured outcome measurement and contractual accountability.
If magistrates don’t understand the work being done, providers haven’t done their job of showing them. That’s something local delivery partners and commissioners can fix, and should.
What a grown-up OOCR framework looks like
The Magistrates’ Association is right that the current picture isn’t good enough. They’re wrong about what the fix is.
The fix isn’t pulling cases back into courts that are already buckling under a backlog the Leveson Review has spent two reports trying to address. The fix is:
A clear national framework setting out which offences are and aren’t eligible, with proper statutory footing, bringing the weakest force areas up to the standard of the strongest.
Consistent commissioning expectations, so a community resolution isn’t a one-line note on a log in one force and a twelve-week evidence-based programme in the next. Where commissioning is working, it should be the floor, not the ceiling.
Mandatory outcome data reporting back to the courts and to PCCs, drawn from the contract management data that already exists, so magistrates can see what the alternative to their courtroom actually delivered.
Genuine local coherence between police, providers, courts, and probation, which is the MA’s own third pillar from their community sentencing statement, applied here.
And yes: judicial visibility. Not judicial gatekeeping, but visibility. Magistrates should be able to see the outcomes of the cases that never reached them, and the evidence base of the interventions those cases received.
The real argument
The debate about OOCRs has been framed as courts versus police, oversight versus expansion, justice versus efficiency. That framing serves nobody, least of all victims, and least of all the people whose behaviour we’re actually trying to change.
The real argument is about what works. The evidence on structured OOCR interventions, when properly commissioned, delivered, and measured, is considerably stronger than the evidence on low-level fines and short-order outcomes from a magistrates’ court.
If the Magistrates’ Association wants to lead this conversation, it should be pushing for better OOCRs, not fewer of them. The sector should meet them halfway. And providers should be a lot less shy about showing their working.
Open justice is a principle worth defending. But so is an evidence-based justice system. They don’t have to be in conflict, and they usually aren’t.
If you would like to read more about my work in the criminal justice system, you can find my book IMPERFECT: The Life of a Probation Officer here:
https://hawksmoorpublishing.com/book/imperfect-the-life-of-a-probation-officer
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