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Review of Gatekeeping Role in Young Offenders Act 1997 Introduction 55. The first gatekeepers are all police officers who routinely come into contact with young people whom they suspect of having committed an offence. The Act gives police officers the power to make some, but not all, gatekeeping decisions. If the young person has committed, or is suspected of having committed, an offence covered by the Act, police officers can decide to give a warning or caution to the young person if certain conditions are satisfied. If a warning or caution is not given the police officer must refer the matter to an SYO. Compliance with provisions of the Act 56. Feedback from police officers, lawyers and advocates for young people indicates that many police who are not SYOs are commencing criminal proceedings despite the fact that the offence is covered by the Act. My interpretation of the legislation is that police officers have no power, either express or implied, to commence proceedings in these circumstances unless instructed to do so by an SYO. Because this does not appear to be the generally accepted view, I have set out my reasoning in detail at Appendix F. 57. The analysis in Appendix F demonstrates that any police officer who commences criminal proceedings against a young person who has committed or is alleged to have committed an offence covered by the Act is acting beyond power unless he or she has been instructed by an SYO to commence those proceedings. Pursuant to s 38(3) or s 44(2)(a) Even if the young person has not admitted the offence, the Act does not give the police officer any power to bypass the SYO and unilaterally decide to commence criminal proceedings. Specialist Youth Officers 58. The second group of gatekeepers are SYOs. These are police officers appointed by their Local Area Commanders for the purposes of the Act. The Commissioner delegated his power to appoint SYOs under that Act to Local Area Commanders. They total some 340 across the State. Not all Local Area Commanders appointed officers in the same positions to be SYOs, however the majority of officers appointed as custody managers for the purposes of Part 10A of the Crimes Act 1900 were appointed as SYOs. Existing Youth Liaison Officers (YLOs), who now number 87, were all appointed as SYOs. An SYO cannot decide that a matter should be dealt with by way of warning, but once a matter has been referred to them, they can decide that a child should be given a caution, referred for a youth justice conference or dealt with by a court. s 37(2); s 37(4)
Specialist role of SYOs and YLOs 59. Commander Ellis described how the SYO scheme would work in practice when he said:
61. The desirability of specialist officers dealing with young people is supported by Evans in a British study. He has suggested that “part of the explanation of the relative lack of success of the schemes is that decisions were left in the hands of custody officers, many of whom had negative attitudes towards cautioning adults including young adults . . . In many juvenile systems, including that used by the Metropolitan Police, decisions to caution are taken by specialist juvenile liaison officers who are removed from the immediacy of the custody suite and the police station. . . This type of ‘gate-keeping’ is intended to produce more consistent decisions, but clearly in this instance this intention was not realised.” Evans, R (1993) “Comparing Young Adult and Juvenile Cautioning in the Metropolitan Police District” English Criminal Law Review, no volume at 577 Later in the article Evans notes that, “There is some evidence from this study that ‘arm’s length’ decision-making may be an important component in ensuring that cautioning policy achieves appropriate and consistent decisions . . .” Evans, at 578 62. By making YLOs and most custody managers SYOs the objective of ‘arm’s length’ decision making will generally be achieved. Custody managers in urban areas will rarely have any involvement in the investigation of a matter. However, in rural and regional areas, where there are fewer police, custody managers will be more likely to be involved in the apprehension and investigation of criminal matters. In this situation the judgment of the custody manager is likely to be affected by his or her more intimate knowledge of the offender and the circumstances of the offence. It is difficult to provide for arm’s length decision making in all areas, but consideration could be given to referring a matter to another SYO to avoid the situation where the same officer is investigating a matter as well as making the decision on whether the matter should be prosecuted.
63. The DPP’s only gatekeeping function is the determination of disputes between SYOs and conference administrators about how a matter should be dealt with. Under s 41 if an SYO refers a matter to a conference administrator for a conference and, after consultation, they cannot agree about how the matter should be dealt with, the conference administrator must refer it to the DPP for a determination. The DPP has 14 days to determine whether the matter should be dealt with by way of caution, conference or court proceedings. 64. Philip Dart is currently person who prepares the recommendation to the DPP in relation to these matters. He advised that as of 15 July 1999, he had made 57 determinations. Of these, 30 determinations were made to caution, 13 to refer to conference and 5 to prosecute. One was withdrawn and eight could not be dealt with under the Act because of the issue of doli incapax. Doli incapax and its implications are discussed briefly at paragraph 123 Two of the determinations involved Aboriginal children. The determinations for cautions involved offences such as offensive language, shoplifting, break enter and steal, stealing or riding in a stolen motor vehicle and malicious damage. The factors which the DPP must take into account when making these determinations are set out in s 40(4). Some of the factors taken into account in determining that a caution was the appropriate option were:
65. Section 20(6) states that a child is not precluded from being given a caution merely because the child has previously committed offences or been dealt with under the Act. In some cases the DPP directed cautions where the child had been cautioned previously. In at least three cases involving offensive language, resisting arrest or assaulting police, the DPP noted that a warning would have been more appropriate than a caution. Conferences were deemed to be the appropriate option for offences including shoplifting, assault, break enter and steal, stealing from a motor vehicle, receiving stolen property and stealing or riding in a stolen motor vehicle. Some of the factors taken into account in determining that a conference was the appropriate option were:
66. The matters referred for prosecution included offences of malicious damage by fire, fraud and public mischief in making repeated false allegations of sexual assault. Some of the factors taken into account in determining that prosecution was the appropriate option were:
67. It is an offence under the Act to publish or broadcast the name of any child dealt with under the Act or any information tending to identify any such child. Consequently the DPP’s determinations cannot be published in their present form. However, it may be of some benefit to SYOs and conference administrators to have access to the outcomes of these determinations and, more importantly, to the reasoning involved in determining the appropriate option.
Specialist and non-Specialist Magistrates 68. Recent amendments to the Children’s Court Act 1987 require a fundamental restructure of the Children’s Court in line with the new approach to the care and protection of children contained in legislation passed by parliament in December 1998. These reforms are contained in the Children and Young Persons (Care and Protection) Act 1998 and the Children and Young Persons (Repeal and Amendment) Act 1998. The government intends to commence all this legislation in July 2000. 69. Amendments to the Children’s Court Act 1987 require the Attorney General to implement a restructure of the Children’s Court that includes:
Decisions made by magistrates. 71. Under the Act, courts play a crucial role in ensuring that matters are not dealt with inappropriately. Magistrates are the final gatekeepers in the chain and are obliged to review each case before them, including sentencing and custody matters. A magistrate can decide to give a caution to a child as long as the offence in one for which a caution may be given and the child admits the offence. s 31(1) A court that gives a caution must notify the relevant Local Area Commander in writing of its decision and the reasons for the caution being given. s 31(4) A court may also refer a matter for a conference at any stage in proceedings, including after a finding that a child is guilty of an offence. s 40(3) The child does not have to consent to participating in the conference, although there is obviously little point in forcing a child to participate.
Conference administrators and convenors 72. Conference administrators are gatekeepers to the extent that they can consult with SYOs if they do not agree that the matter should be dealt with by way of conference. If the matter cannot be agreed between them, it must be sent to the DPP for a determination. In making his or her decision, an SYO can take into account the seriousness of the offence, the degree of violence involved, the harm caused to the victim, the number and nature of any other offences and “any other matter the official thinks appropriate in the circumstances.” s 37(3) However, a conference administrator can only take into account the first four factors. There does not appear to be any reason for differentiating between SYOs and conference administrators in terms of the factors they can take into account. The issue of the factors guiding gatekeepers’ decisions will be discussed in more detail at paragraphs 166-170. According to YLOs and conference administrators, their relationship is generally good. A practice which has developed in some areas, and appears to have had positive results, is for YLOs to ring the conference administrator before referring a matter to check that the conference administrator agrees that it is appropriate.
Lawyers can influence gatekeeping decisions 73. Although they are not gatekeepers, lawyers can indirectly affect decisions made under the Act. This can be done through the legal advice they provide to a young person (for example, not to admit the offence) or by making a submission to the magistrate that a matter be subject to a caution or referred for conference. There is concern that some lawyers have advised young people not to agree to a conference because it can result in a more onerous outcome than court, despite the provision that “an outcome plan must contain outcomes that are realistic and appropriate and sanctions that are not more severe than those that might have been imposed in court proceedings for the offence concerned.” s 52 (6) This section has been criticised on the basis that it is not valid to compare outcome plans with sanctions that might have been imposed by a court because they do not have the same objectives Attendance at conferences 74. Richard Funston, Solicitor in Charge, Children’s Legal Service, Legal Aid Commission of New South Wales suggested that lawyers should attend at least one conference so that they can see the process in action and appreciate its benefits. He believes that this would reduce their skepticism about the process. In his view, most lawyers are reluctant to champion the legislation or remain cynical because they do not know a great deal about it or have not had much experience with it. 75. Statistics from the Youth Justice Conferencing Directorate indicate that the number of legal advisers present at a conference, either advising or representing their client See s50 which provides that a child is entitled to be advised at a conference by a legal practitioner but not represented unless permitted by the conference convenor. is very low. Legal adviser are recorded on the CIS system as being present to advise or represent their clients for 27 conferences out of a total of 1,178 for the period from 6 April 1998 to 30 June 1999. While it may be useful in some cases for lawyers to attend a conference to advise their client, it is much more important for a young person to receive legal advice prior to making an admission. There is no data available on the proportion of young people who receive legal advice but statistics from the Hotline The Hotline is discussed at paragraphs 114-117 available to young people suggests that one-third of young people are not accessing legal advice. 76. While it is beyond the terms of reference of this review, it would be in the interests of young people for lawyers working in this area to familiarise themselves with the content and philosophy of the legislation and attend some conferences. |
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