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Review of Gatekeeping Role in Young Offenders Act
Barrier 5 - Police are not exercising their discretion in accordance with the Act
Discretion is broadly expressed
90. Police have traditionally had a great deal of discretion in dealing with young people. As James and Polk point out:
The key structural characteristic which underpins the policing of young people is the exercise of discretion - the choice between formal or informal courses of action, or inaction available to the police . . . Discretion itself is not a question; policing would be more difficult, if not impossible, without it. . . Of real concern . . . are the ways in which discretion is exercised with young people and the consequences of such discretion. James S and Polk K, “Police and Young Australians” in Chappell D and Wilson P, (1996) Australian Policing: Contemporary Issues 2nd ed Butterworths, Sydney at 183
91. As discussed earlier, police have a very broad discretion under the legislation to make decisions about whether to warn, caution or refer a young person for conference. Several factors are listed in the Act which are intended to guide a police officer when making those decisions. These factors include the seriousness of the offence, the degree of violence involved, any harm to the victim and previous offences. There is also a general consideration, namely “any other matter the official thinks appropriate in the circumstances.” This is a very general consideration which virtually allows police to come to any view which, in their opinion, is appropriate.
Other factors influencing decisions
92. As well as the factors set out in the legislation, studies have shown that other variables can affect decision making. According to James and Polk, “Besides age, sex, schooling and family environment, Aboriginality has been strongly associated with police dispositional choice. Studies in New South Wales, Western Australia and South Australia show consistent patterns in which Aboriginal young people are less likely in general to be cautioned than non-Aboriginal young people; less likely to be cautioned when offences and status (for example, first offender) are matched; and more likely to be arrested and proceeded with by summons.” James and Polk also quote studies which demonstrate that the degree of co-operation and the child’s general attitude are strongly associated with the likelihood of being cautioned. James and Polk, at 187
Another factor influencing the exercise of discretion is the prevailing philosophy or culture within the Police Service. As Blagg and Wilkie have pointed out:
The success criterion of policing is largely constructed in terms of increased arrests, rather than reductions in crime rates, adding to the belief that ‘real policing’ necessarily requires the arrest and prosecution of individual offenders, rather than crime prevention or reduction Blagg H and Wilkie M (1995) Young People and Police Powers, The Australian Youth Foundation at 20
93. Police are not required to record the reasons for their decisions and even if they did, there is no guarantee that they would identify all the reasons motivating the decision. Consequently it is impossible to identify the factors which may have influenced them. However the fact that 67% of matters are still being sent to court suggests that police may be taking into account factors other than those mentioned in the legislation in exercising their discretion.
Options
94. Other than providing further training (an option that is considered at paragraphs 99-107) there are several ways of attempting to address this issue. They include:
- providing written policy guidelines or other information on how discretion should be exercised;
- requiring police to record reasons for decisions and to be accountable to their supervisors for those reasons; and
- narrowing the factors that can be taken into account in exercising the discretion.
Policy guidelines
95. One option is to provide police with guidelines on how to exercise discretion in a particular case. Research suggests that guidelines are not particularly successful in terms of influencing the exercise of discretion. Evans noted in the English context that:
The key instrument devised to achieve these aims (of consistency of decision making) is a ‘caution consideration chart’ which focuses custody officers’ attention on the factors to take into account when deciding to charge, caution or take no further action. Evans (1993) “Evaluating Young Adult Diversion Schemes in the Metropolitan Police District” English Criminal Law Review no volume at 491
The most common use of the chart was not as an aid to decision making, but as a written justification of a decision that had already been made. ‘After all you know as soon as they come in through the door what you are going to do. It all depends on their attitude and whether they are genuinely remorseful.’ Some officers stated that they had used the chart in the early stages of the pilot scheme but once they had memorised the cautioning criteria they tended to fill it in after they had made a decision . . During the interviews the chart was frequently referred to as a ‘justification to charge sheet’, which is indicative of the stance of the majority of officers towards it. Evans (1993) at 494
96. While written guidelines may be of some value, they are unlikely to lead to a wholesale change in the way police make decisions under the Act. Nevertheless they may influence the decisions of some police especially those who are already sympathetic with the principles in the legislation. Guidelines could be in the form of a discrete document and/or a web site which could be regularly updated. The site could include a body of best practice examples which would give police some guidance on where to draw the line. The kinds of information that police (and others) may benefit from are:
- anonymised determinations of the DPP;
- practices and procedures of YLOs in terms of monitoring decisions in their LAC;
- training materials including guidelines and protocols;
- best practice examples; and
- contact numbers, such as the Hotline.
Requiring police to record reasons for decisions and to be accountable to their supervisors for those reasons
97. Another way to facilitate the making of decisions in accordance with the Act is to require police to record the reasons for each decision and to be accountable to their supervisor for those decisions. This option is discussed in more detail at paragraphs 147-148.
Narrowing the factors that can be taken into account in exercising the discretion
98. When making a decision under the Act, a police officer can take into account “any other matter the official thinks appropriate in the circumstances.” This allows the officer to take into account subjective considerations. The difficulty with eliminating this factor is that there may be legitimate reasons which are not listed in the Act, for making a particular determination. Consequently, this factor should remain but other measures should be taken to decrease the likelihood that irrelevant considerations are taken into account when making decisions under the Act.
RECOMMENDATION
The Police Service should issue guidelines in relation to the exercise of discretions under the Act. Relevant and irrelevant considerations should be identified. |
