Too many cases are being dealt with by out of court disposals where the police are acting as prosecutor and judge, a Court of Appeal judge said last week.

Giving the Roscoe lecture on criminal justice, Lord Justice Leveson pointed out that 450,000 cases were dealt with through penalty notices for disorder and cautions in 2009.

He said that while there were clear cost benefits in using such a process, ‘it is obviously a matter of proportion, and, in relation to out of court disposals, I make my view clear that we have got the proportion wrong.’

Leveson said: ‘In issuing an out of court disposal, the police are essentially acting as prosecutor and judge, outside the environment of an open court. Although these disposals are not convictions, they are kept on record and, at the least serious end, can risk "criminalising" people who on a one-off occasion do something out of character, and who feel that the quickest thing to do is to accept the penalty or caution that is being proposed by the police, even if further analysis might have revealed no offence.’

The judge noted that the number of out of court disposals almost doubled between 2004 and 2009. Some 282,500 ‘simple cautions’ were issued in 2009, mostly relating to theft and handling stolen goods, followed by common assault. There were 170,000 ‘penalty notices for disorder’, mostly for retail theft, and a further 8,500 ‘conditional cautions’ in which a prosecutor can impose conditions on the caution, such as attending a course or making reparation.

Leveson said: ‘On the basis of efficiency and speed, a strong case can be made for the use of these types of disposals in appropriate cases but, just to take penalty notices for disorder and cautions, were over 450,000 cases truly appropriate?’

Ian Kelcey, chair of the Law Society’s criminal law committee, said he shared the judge’s concerns: ‘People accept FPNs [fixed penalty notices] too readily, without realising the consequences. For example, a young student on the edge of some street violence may be given an FPN. He will probably accept it without realising the consequences it may have when a future employer or regulatory authority does an enhanced criminal records bureau check. If the student is, for example, studying medicine, teaching or wants to work with children, his career will likely be over before it starts.’

He added: ‘Cautions can be abused as well. I have heard of instances in the past of people being cautioned for very serious matters. I have also heard that in one force area, a person who admitted a dwelling house burglary was given two cautions, for criminal damage (because a door was kicked in) and theft. The advantage to the police is that it counted as two offences brought to justice. I wonder how the victim felt.’