Time for a more radical form of police diversion

We need to reconsider how we focus our scarce resources on those young people who need it most in the interests of them and the public, writes Professor Ursula Kilkelly.

Earlier this week, Garda Commissioner Drew Harris, appeared before the Policing Authority to account for the failure of An Garda Síochána to progress nearly 8,000 referrals (almost 3,500 young people) from the Garda Diversion Programme over a seven-year period. The failures, due to Garda inaction, were described by the commissioner as “professionally humiliating”.

For the gardaí, this is a terrible mess. For the victims, it is crushing news and for many of the young people affected, it could indeed involve life-altering or indeed life-limiting consequences.

More generally, it is a blow to public confidence in the ability of An Garda Siochána to do the basic job of progressing criminal charges to final conclusion.

The fact that these cases involve youth offending, some of it serious, has caused alarm with questions being asked about our system of police diversion and our treatment of young offenders generally. In truth, the matter has very little to do with the Garda Diversion Programme — it is a more general policing matter — but these matters are intertwined in a way that suggests that we need to reconsider how we focus our scarce resources on those young people who need it most in the interests of young people and the public.

The Garda Diversion Programme is the national system of police cautioning, set up in the 1960s and put on a statutory basis in the Children Act 2001. The Programme is operated by Juvenile Liaison Officers (JLOs), specially trained members of the gardaí, and it aims to divert young people under 18 years from committing further offences.

In short, it offers young people who accept responsibility for their behaviour a police caution in lieu of prosecution. It works as follows: when a young person comes to the attention of the gardaí with respect to criminal behaviour, he/she is referred to the Diversion Programme.

The decision to admit the young person is made by the National Director of the Programme according to statutory criteria — the young person must accept responsibility for the behaviour, agree to be cautioned and be under 18 years.

Depending on the seriousness of their behaviour, the young person admitted will receive either an informal caution or a formal caution with 12 months’ supervision by a JLO and families and/or victims may be involved in this process. While no recent or long-term evaluation of the Programme’s success rate has been carried out, it is well regarded for its consistent record of successfully supporting young people to move away from offending behaviour. Its strengths include that decision-making is centralised under the act and all young people (just under 10,000 in 2016) are considered for admission.

Over a long time, the programme has embedded diversion — a key principle of youth justice — into our youth justice system, meaning that young people meet specially trained police officers — over 120 JLOs work in all districts around the country — as their formal point of contact with the police. The result is a programme that represents best-practice in keeping away from the courts those young people who will, evidence tells us, grow out of their offending, without any real intervention at all.

Young people who do not meet the programme’s criteria will be found ‘unsuitable’ by the director and will instead be referred for prosecution. These include those who have repeat referrals or whose offending is more serious.

Approximately 15% of young people referred to the programme every year fall into this category and this group is the subject of the recent scandal. According to the commissioner, a review of 158,521 referrals made between 2010 and 2017 found that 7,894 were not properly progressed due to inaction on the part of gardaí.

These referrals involved 3,489 young people with a majority of relatively minor offences including public order, theft and criminal damage. Among the referrals not progressed were 55 serious offences, including rape and sexual assault and 3,500 gardaí are believed to be involved in the errors, amounting to 25% of all Garda officers.

This highlights the need for training to be provided to all gardaí on the operation of the programme and on approaches to use when working with young people more generally. The specialist approach should not be limited to JLOs alone.

The public is entitled to have confidence that matters referred to the gardaí for prosecution will be pursued with rigour and fairness. It was good to hear the commissioner accept responsibility for the errors, and that steps are being taken to hold individual gardaí accountable, where appropriate, and to provide support and information to victims and others affected.

This openness should extend to doing things differently in future. While the programme has a successful reputation for working effectively with young people referred for caution, those young people not admitted are in fact the hard cases that deserve much greater attention— they are the young people who without intervention will head for what is known as the ‘deep end’ of the youth justice system — they commit more crime, engage in more serious offending and they generally, have complex unmet needs that make them harder to reach. However effective the diversion programme is, it offers nothing at all to young people in this category. One important aspect of this week’s developments is that it has shed light on these young people.

For years they were reported as a statistic in the programme’s annual report, with little information on why they were not admitted. Their subsequent pathways remain equally hidden, until, perhaps they are sentenced to a period of detention in Oberstown Children Detention Campus where if they are lucky, they might finally have their needs met in health, education or work on offending behaviour

But what if an intervention had happened earlier? What if the Garda Diversion Programme worked, not as a wide-net for the many young people who come into contact with the police for minor offences, but rather as a specialist resource to respond to the needs of the few who are likely to continue to offend due to their more complex unmet needs. What if rather than being found ‘unsuitable’, the programme focuses precisely on these young people, working with their families and their communities to bring them back from the brink?

Notwithstanding the important work that JLOs do every day and that the diversion programme has been doing for years, it is time now to consider a more radical form of police diversion, where scarce resources and expertise are targeted at those who need it most.

Professor Ursula Kilkelly School of Law University College Cork