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Review of Gatekeeping Role in Young Offenders Act 1997
List of Recommendations
A. As well as the enhancements to the Computerised Operational Policing (COPS) system proposed by the Police Service, the Service should develop strategies to improve the recording of information relating to race. Recording of cultural or ethnic background as well as other information, is required by the Act in relation to warnings, cautions and conferences. This information should be recorded on the COPS system.
B. The Police Service should develop and implement strategies to ensure that only SYOs make decisions to commence criminal proceedings in relation to offences which come within the Act. Strategies which they may wish to consider include:
- ensuring that the responsibilities of investigating officers and SYOs are spelt out in all future training and education initiatives;
- revising and re-issuing Police Service Circular 98/13 to make it clear that:
- police officers cannot refer a matter for criminal proceedings unless they have been instructed by an SYO to do so;
- if an SYO is not immediately available to make the decision strategies other than prosecution must be implemented; (for example, releasing the young person and arranging a time for them to return);
- advising police prosecutors to query matters referred for prosecution where the referral has not been made or authorised by an SYO.
C. As a matter of policy, an investigating official should refer a matter to a YLO if he or she is available, in preference to another SYO.
D. The Police Service should determine whether further SYOs should be appointed to cope with the number of decisions which need to be made or the distance which needs to be travelled. If more are needed, they should be trained before taking up their appointment.
E. The Police Service should issue guidelines in relation to the exercise of discretions under the Act. Relevant and irrelevant considerations should be identified.
F. The Police Service should:
- organise further comprehensive training for investigating police officers who are likely to make decisions under the Act. This could be planned to coincide with further amendments to the Act which are planned to come into effect in April 2000. This training should include comprehensive consideration of the cross cultural issues which arise in implementing the Act;
- compile a document to be used as a guide for police officers in deciding which offences can be dealt with under the Act;
- provide regular training for SYOs to keep them up to date. If practicable, SYOs should not make decisions under the Act until they have been trained; and
- encourage police to attend conferences where they have been the investigating officer.
G. The Police Service should ensure that the requirements in relation to legal advice are followed. Strategies which they may wish to consider include:
- re-drafting the document summarising young people’s rights so that it is easy to read and understand. Copies should be available at every police station. The document should be given to the young person and its contents explained.
- displaying the Hotline poster in a prominent position in every police station;
- setting out the obligations of police in relation to legal advice and mentioning the Hotline in the Police Service Circular in relation to the Act, and
- referring to the Hotline in all information circulated or broadcast to police in relation to the Act including training materials.
H. The Police Service should develop and distribute a protocol document to all relevant police officers describing best practice in relation to legal advice, obtaining admissions, interviews and statutory time periods. This document should suggest alternatives in situations where a specified adult or an SYO is not available. This document should also include consideration of any role which it may be appropriate for Aboriginal Community Liaison Officers (ACLOs) and Ethnic Community Liaison Officers (ECLOs) to play including assisting young people to obtain legal advice and ensuring that they return to the police station at a later date.
I. Magistrates dealing with children’s matters should be given guidelines in a Practice Direction in relation to when it is appropriate to caution under the Children (Criminal Proceedings) Act 1987 and when it is appropriate to caution under the Young Offenders Act 1997.
J. The Children’s Court should give priority to training all magistrates dealing with children’s issues in the content and philosophy of the Act. In addition Practice Directions should contain guidelines in relation to the circumstances when it is appropriate to caution or refer matters for conference.
K. Training for magistrates hearing children’s matters and Practice Directions should include reference to the fact that reasons are required under s 31(4) of the Act.
L. Magistrates should give consideration to confining their decisions to the options available under the Act rather than using extra-legislative schemes such as CAPS.
M. All magistrates applying the Act should receive initial as well as refresher training.
N. The Children’s Court should finalise Practice Directions in relation to the Act as soon as possible.
O. 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.
P. 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?
Q. Police prosecutors should be given power under the Act to review an SYO’s decision to commence criminal proceedings. Any referral by a police prosecutor back to the investigating officer for a caution should be a final decision, just as it would be if an SYO made that decision. Similarly, a referral to a conference administrator should be subject to a determination by the DPP if the administrator and the prosecutor disagree about the appropriateness of conferencing. A single police prosecutor should be appointed to oversee and co-ordinate children’s prosecutions throughout New South Wales and to monitor and evaluate prosecutors’ decisions under the Act.
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