Review of Gatekeeping Role in Young Offenders Act


Barrier 9 - Lack of accountability mechanisms

YLOs need a mechanism for readily reviewing all juvenile matters within their LAC within a specified period. This would allow YLO’s to monitor juvenile matters that are being inappropriately sent to court. The COP system seems to be inadequate for this purpose currently.

Greater accountability on investigating police as to why juveniles are being referred to Court. Mandatory COPS screen as to who and what their position is that authorised charge and their reasons - YLOs are not being consulted.

Introduction

144. Gatekeepers should be accountable to young people, the community, and their superiors for the decisions they make. Accountability mechanisms help ensure that decisions are made consistently and in accordance with the Act. In order for gatekeepers to be accountable there needs to be adequate data recording the decisions that are being made and the reasons for those decisions.

Data collection

145. One suggestion was that there should be space on the Custody Management Record for information about decisions made under the Act and the reasons for those decisions. Custody Managers are required to complete and sign off a form setting out details to demonstrate compliance with certain statutory obligations. Another space could be added to this form for the SYO to complete.

Reasons for decisions

146. There was also a suggestion that there should be a mandatory field on the COPS system for an entry setting out any decision made under the Act and the reasons for that decision. The Police Service have advised that by September 1999 they hope to have a mandatory field in the COPS system to identify why matters are being sent to court if there is an admission and offence fits within categories for caution or conference. This would assist in indicating which offences are capable of being diverted under the Act and which are not and will help identify the kinds of offences or offenders where diversion is being under used.

147. One YLO suggested that Police should mark court papers clearly “Nil admission” so that if the magistrate refers it back for a caution or conference after the young person has admitted the offence, it should not be counted as an inappropriate referral.

Discussion

148. If decisions are to be recorded, then the most logical place to do so is on the COPS system so that information about those decisions can be retrieved and analysed easily. Recording information on the Custody Management Record would make sure that police addressed their mind to the reason for making a decision at the time but it may be just as useful to provide for a mandatory field on the COPS system.

RECOMMENDATION

The Police Service should create a mandatory field on the COPS system to record the following information:

• the alleged offence;
• whether the offence can be dealt with under the Act;
• whether an admission has been made; and
• the decision of the investigating officer (in the case of warnings and cautions) or the SYO and the reasons for that decision.

149. YLOs are also being asked to produce monthly reports setting out information about decisions made under the Act. These reports have increased the level of understanding of YLOs of their local statistics. However the Police Service has acknowledged that it has limitations in relation to accountability because of concerns about the accuracy and consistency of the data.

Performance contracts

150. Several stakeholders put forward the argument that the performance contracts of Local Area Commanders should include indicators in relation to the implementation of the Act in their Area. These indicators could include rates of diversion to caution and conference as a proportion of all offenders. These rates could be compared against targets for particular areas based on previous performance and/or best practice in other areas.

151. There may be practical difficulties in implementing such a proposal. Firstly, if contracts included targets in relation to the Act, they should also include targets for all other operational policing functions. Secondly, until targets have been identified, it is difficult to make Local Area Commanders accountable for them. An alternative would be to develop targets in relation to all operational areas and include them within corporate planning documents on which Local Area Commanders must report.

Operational Crime Review (OCR) Committees

152. The Police Service has recently introduced an accountability mechanism through the OCR process. The Proposed and Current Strategies Document prepared by the Police Service and attached at Appendix D, states that:

As part of the reformation of the Police Service, attention is given to the performance of particular Local Area Commands. All Commanders periodically attend an OCR. During this review, the Commanders are asked a series of questions pertaining to the level of crime in their area. This process serves to focus the Commander’s attention on particular issues, including the surveillance of recidivist offenders, crime trends, and the reduction of crime.

To assist in promoting the profile of the Act and encouraging accountability, a recent meeting was held with the Reform Coordination Unit. This Unit manages the OCRs. As a result of this meeting, it is anticipated that Commanders attending the upcoming OCRs will be asked a series of questions which specifically relate to the use of the Act. This will enhance the level of accountability of Commanders to the Act.

Operational Crime Review (OCR) questions include:
• What is the profile of juvenile crime in the area?
• What is the current proportion of young people diverted from Court?
• What is the rate of attendance at conference?
• Is your YLO currently Full time?
• How many SYOs do you have?

RECOMMENDATION

As well as the questions currently being asked by OCRs, other questions which should be considered include:

• what is the proportion of ATSI and ethnic groups of young people being diverted away from court compared with the proportion for the general population?
• have all SYOs and investigating police received comprehensive training in relation to the Act?

Accountability to the community

155. Community education assists in making police responsible for their decision making. If the community in general, and young people in particular, understand the Act and are aware of their rights, they are more likely to insist on decisions which comply with the legislation. Failure to implement the legislation according to community expectations could result in complaints to organisations such as the Ombudsman, the Anti-Discrimination Board or the Independent Commission Against Corruption. These agencies can influence the performance of the Police Service.

156. A sub-committee of the YJAC is responsible for promoting the Act. A plan to achieve this has been developed and is attached at Appendix F. Conference administrators also participate in community education programs in their local areas and the Director of Youth Justice Conferencing, Jenny Bargen, frequently presents papers at conferences and seminars.

Conclusion in Relation to Barriers

157. The nine barriers listed in this section vary significantly both in the ease with which they can be overcome and the effect that addressing them would have on diversion rates. In my view, the most significant barrier is that police are making decisions to commence criminal proceedings without first referring the matter to an SYO. SYOs are, or soon will be, specifically trained to make decisions under the Act. They are generally at arms length in the sense that they are not directly involved with the investigation of the matter. These factors make it more likely that their decisions will reflect the principles in the Act. It may be difficult to convince police that they should not be making decisions to commence criminal proceedings. However the situation could be monitored by police prosecutors checking to ensure that any brief they receive is signed off by an SYO, and if not, returning it to the relevant SYO for consideration.

158. If SYOs become the sole decision makers in relation to commencing criminal proceedings, then the issues which arise include whether there are enough SYOs to do the job; whether YLO’s should be preferred to other SYOs when available and whether YLOs in particular are ranked highly enough to command the respect of their fellow officers. These are fundamentally operational issues which should be left to the Police Service to determine, however the fewer police making decisions the more likely it is that those decisions will be consistent and of a high quality. Conversely there needs to be enough SYOs so that they are available whenever required to make a decision.

159. Police have a very wide discretion in deciding whether to divert a young person away from court. It is very difficult to prevent police from making decisions which they think are appropriate even though they may be inconsistent with the legislation. Although training, providing guidelines and requiring written reasons for decisions would all contribute to police being more informed and accountable, ultimately ensuring that SYOs have the ultimate say is likely to have a greater impact.

160 The Police Service has provided thorough training for YLOs and, a little belatedly, for SYOs. Training for investigating police has not been so rigorous due, no doubt, to their numbers. It would make the job of the SYO much easier if they could rely on investigating police to make an informed decision about giving warnings or cautions. One way of improving the quality of decision making is through further education and training.

161. Procedural requirements including the encouraging young people to obtain legal advice can have an indirect effect on decision making. This whole area is a complex one because the rights and interests may at times appear to conflict with police objectives. If young people are encouraged and assisted to obtain legal advice, and lawyers develop a greater appreciation of the Act, fair and informed decisions can be made about admissions and about the pros and cons of consenting to alternative means of having their matter dealt with. A comprehensive protocol to guide police on these important issues could have an effect on diversion rates.

162. Magistrates need to receive further training and guidance on the legislation. While having a small number of specialist children’s magistrates will assist in achieving decisions which are consistent and which comply with the objects of the Act, magistrates who are not trained, and/or who are not sympathetic to the principles in the legislation should not be permitted to sit on children’s matters. Comprehensive Practice Directions are urgently needed.

163. The practices and procedures which have been put into place and which may be supplemented in the light of this report, must be subject to accountability mechanisms to guarantee that they will continue in place and result in improved compliance with the legislation. Several useful accountability mechanisms have already been developed including monthly reports from YLOs and questions by the OCR. These should be supplemented by improved data collection, and further community education.

164. If the Committee considers that addressing these barriers will not result in a sufficient improvement in diversion rates, legislative amendments may be necessary. Two options are discussed in the following section.