Review of Gatekeeping Role in Young Offenders Act


APPENDIX F

Legal opinion on the power of police officers who are not SYOs to commence criminal proceedings in relation to offences under the Young Offenders Act 1997

The only people or groups of people who are given express power under the Act to decide whether criminal proceedings should be commenced are the young person, See s 22(1)(c); s 24(2)(h); s 25(1); s 44(1); s 45(3)(h) the SYO See s 37(2); s 38(3); s 41(8); s 44(2)(a); and the DPP. See s 25(3); s 41(3); s 41(8); The Act does not give a police officer express power to commence criminal proceedings when the offence is one covered by the Act. A police officer is subject to a series of restrictions in relation to the decisions he or she can make which ensure that all matters covered by the Act are eventually referred to the SYO unless the officer decides to give a warning or caution. These restrictions are as follows:

• The police officer must give a warning to the young person where the offence is a summary offence not involving violence, s 14(1) & s 14(2)(a) unless in the opinion of the police officer, “it is more appropriate to deal with it by other means because is it not in the interests of justice for the matter to be dealt with by warning.” s 14 (2)(b). The “other means” are not specified and although they could theoretically include the commencement of criminal proceedings, subsequent provisions effectively prevent a police officer from exercising this option.


• If a warning is not given, the police officer must consider whether to deal with the matter by way of caution or to refer the matter to a Specialist Youth Officer to consider whether a youth justice conference or some other course of action is appropriate. s 14(4). Note that unlike s 37(2); s 38(3); s 41(8); s 44(2)(a); s 41(3) and s 41(8), there is no reference in s 14(4) to police officers having the power to commence proceedings.


• The police officer must give a caution to the young person where the offence is a summary offence or an indictable offence that may be dealt with summarily, See Part 9A of the Criminal Procedure Act 1986 and the child admits the offence and consents to the giving of the caution s 19 unless in the opinion of the police officer, it is more appropriate to deal with it by other means because it is not in the interest of justice for the matter to be dealt with by giving a caution. s 20(2). Section 20(3) sets out certain factors which the police officer must take into account in exercising this discretion.


• If a caution is not given, the police officer must refer the matter to a specialist youth officer to consider whether the child should be dealt with by way of a youth justice conference or otherwise. s 21(2). Note that, unlike s 37(2); s 38(3); s 41(8); s 44(2)(a); s 41(3) and s 41(8), there is no reference in s 21(2) to police officers having the power to commence proceedings. If a police officer arranges for a caution to be given the matter can still be sent to an SYO if the officer changes his or her mind about the suitability of a caution. s 25(2)

An investigating official dealing with a child who has committed, or is alleged to have committed, an offence must, before issuing a summons or attendance notice or otherwise commencing criminal proceedings against the child, determine:

(a) whether the offence is one covered by this Act; and





(b) in the case of such an offence, whether the child should be dealt with under Part 3 or 4 or the matter should be referred to a specialist youth officer under Part 5 to determine whether a youth justice conference should be held.

Section 9(3) is more difficult to reconcile with the view that police officers who are not SYOs have no power to commence criminal proceedings where the offence is one covered by the Act. That sub-section states that:

An investigating official may, at any time after commencing proceedings and before the proceedings are heard, decide to deal with a child alleged to have committed an offence under Part 4 or consider whether the matter should be referred to a specialist youth officer under Part 5, if the investigating official forms the opinion that the child is entitled to be dealt with under Part 4 or Part 5.

• the offence is one for which a caution may be given;
• the police officer determines that the matter is not appropriate for a warning;
• the police officer has not formed the view that it is more appropriate to deal with it by other means.

Similarly, under Part 5, a young person is entitled to be cautioned if:

• the offence is one for which a conference may be held;
• the police officer determines that the matter is not appropriate for a caution;
• the SYO has not formed the view that it is more appropriate to deal with it by commencing proceedings or giving a caution.

Consequently “forming an opinion” that a child is “entitled” to be dealt with under Part 4 or 5, could involve either realising that the offence is one for which a caution can be given or a conference held or (in relation to cautions) forming the view that it is not more appropriate to deal with it by other means. The question of whether a young person is entitled to be dealt with under Part 4 or Part 5 does not include the questions of whether the child admits the offence or consents to the holding of the conference.

Where there is any doubt about the meaning of particular provisions of the Act they should be interpreted consistently with the objects and principles of the Act. Object 3(a) is “to establish a scheme that provides an alternative process to court proceedings for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings.”

This is reinforced by s 7 (c) which states that one of the principles of the scheme is: “The principle that criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter.”

This interpretation is supported in the Second Reading Speech where the Attorney General, the Hon J Shaw, QC MLC stated that:

In order to ensure that referrals to conferences are appropriately made, it is proposed that when an investigating officer considers that the matter is not appropriate for a warning or a caution, the officer will refer the matter to a specialist youth officer for consideration as to whether the matter should go to a conference or to court. Hansard, Legislative Council, 21 May 1997 at 8960



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