Concern is increasing among judges and magistrates that thousands of cautions are being handed out by police or prosecutors for violent assaults that should come before courts.

Keir Starmer, QC, the Director of Public Prosecutions, has told The Times that no offence above the level of common assault should be dealt with “out of court”. He has called for data from all prosecuting areas in England and Wales to find out if this was happening.

There was now a case, he added, for a new scheme covering all “out-of-court” penalties that would specify what offences can be dealt with at what level.

Lord Justice Leveson, who as Senior Presiding Judge is one of the most senior criminal judges in England and Wales, has expressed concern that “some diversions [from court] are inappropriate”. Magistrates, he told The Times, should be urged to “challenge chief officers of police” over the extent of such penalties and “hold them to account”, perhaps through local criminal justice boards.

Lord Justice Leveson insisted that not every single trivial incident needed to go to court — that would not be a proper use of resources.

Powers to give cautions or on-the-spot fines or fixed-penalty notices could be useful for dealing with lowlevel offending proportionately, but they should be exercised “very sparingly”, the judge said. “I don’t believe police officers should be judge, jury and sentencer.”

At the same time the Council of Circuit Judges, which represents 600-plus judges, is also calling for an independent review.

Judge Keith Cutler, a senior circuit judge on the council, said that judges already were discovering that cases of alleged rape or “glassing” had been dealt with by cautions.

“It is only a matter of time where we will have a domestic murder and we will find on the offender’s antecedent sheet that they were cautioned for an earlier assault on the murder victim. It is getting that serious.”

He added: “There is a proper role for out-of-court disposals and many cases end up in court that could have been dealt with by other means.

“But what is causing disquiet is the number of comparatively serious cases being dealt with in this way. It is very worrying; and our observation is that this trend is driven by financial reasons and to save the expense of a prosecution.

He added: “It also means that the Crown Prosecution Service and the police are deciding on a sentence, which is not their job.”

Suspects, in turn, had the option of going to trial and a potentially heavy sentence or an instant caution if they admitted guilt. “But many will not realise that this will remain on their record indefinitely,” he said.

Concerns over “on-the-spot” fines and cautions were first highlighted by the Magistrates’ Association, which believes that more than 30,000 serious assaults are being dealt with in this way. A Panorama programme to be broadcast on BBC One tonight will report that the true figure is nearer 40,000, including more than 700 serious assaults that could have gone to court as charges of grievous bodily harm.

John Thornhill, chairman of the Magistrates’ Association, said: “These disposals might look cheaper because they are quicker and more expeditious to administer. But 53 per cent of fines imposed under fixed-penalty notices are not paid — and the offender ends up before us anyway, with all the extra costs involved.

“Our main concern, however, is one of principle: we believe that justice requires that all assaults where there is a victim who suffers should be brought to court and dealt with in public. In that way the victim can be awarded compensation.”

But senior police officers are also concerned. Sir Paul Stephenson, the Commissioner of the Metropolitan Police, said that the increasing use of on-the-spot penalties undermined the authority of magistrates’ courts. Sir Paul said: “I think we have to look again at the number of times we do cautions and we have to look again at fixed-penalty tickets.” The present balance was wrong, he added.

In an interview in yesterday’s Sunday Times, Sir Paul said that the Government expected the police to unblock the courts and reduce prison overcrowding by making use of cautions and fixed penalties on an ever-growing scale.

The outcome was “an almost uncontrollable increase in cautions and the fixed-penalty ticket, which in the public’s mind equates to a parking ticket, which should not be [the case] with theft and thuggery.”

Sir Paul added: “It’s put the police in the correctional business, instead of what we should be in, the lawand-order business, preventing and detecting crime. We’ve ended up cautioning far too many people.”

It is estimated that half of the 1.7 million offences recorded each year are now dealt with outside the courts.

Guilt without a conviction

•There are two types of police caution. Both are designed for dealing with minor crimes, reducing the likelihood of a repeat offence without tying up the court system

•An adult offender can be given a “simple caution” or a “conditional caution”. Both require the offender to admit the crime, but only the latter requires the offender to enter rehabilitation or pay for damage

•Neither caution gives the offender a conviction but the offence will be recorded on police databases. If an individual applies for a job in the police, as a teacher or working with children or vulnerable adults, any cautions on the database can be disclosed to a putative employer

•Although police cautions save considerable court costs, they are also an attractive alternative to prison for many criminals. Crimes that can carry hefty sentences are punished under the conditional caution system using “punitive measures”. The Home Office lists three example punishments: the payment of a financial penalty; unpaid work for a period not exceeding 20 hours; attendance at a specified place for a period not exceeding 20 hours

•Cautions were issued to more than 2.2 million people between 2000 and 2008. Of those people, 550,000 received two or more cautions. Of those, more than 51,000 were cautioned four times or more

Sources: The Home Office, Ask The Police

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