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		[2007] 2 Web JCLI

Special Issue: Diverting Juveniles, Diverting Justice?

Gavin Dingwall

Reader in Law, Department of Law, De Montfort University, The Gateway, Leicester LE1 9BH
gdingwall@dmu.ac.uk

Alisdair A. Gillespie

Reader in Law, Department of Law, De Montfort University, The Gateway, Leicester LE1 9BH
agillespie@dmu.ac.uk

The importance of diversion in the English criminal justice system should not be underestimated. Especially with regards to juvenile offenders, a high proportion of those who offend are not dealt with through the formal process of prosecution, trial and punishment. There may, of course, be perfectly good reasons for this: many offences are of a trivial nature and do not warrant the expense of a trial; any resultant penalty may be disproportionate to such minor offending; and it may be more effective in terms of recidivism to divert rather than prosecute these petty offenders. This recognition that the trial process in itself can be damaging was first suggested by American criminologists such as Lemert (1951, 1972) and Becker (1963) who developed the concept of “labelling”. It was suggested that, by publicly labelling the individual as criminal, the state increased the likelihood of recidivism by reducing legitimate opportunity and reinforcing the offender’s delinquent status (see also Gove 1980; Sagarin 1975). Statistics do appear to suggest that diversion is more effective than prosecution in terms of reconviction rates (see further Hine), although one needs to be careful about such comparisons as those who are prosecuted may well have a more entrenched pattern of offending than those who are diverted. Nonetheless, as Ashworth and Redmayne (2005, p 155) note:

“[Those] who adopt the principle of minimum intervention do not need to establish that cautions are more effective, in terms of reconvictions. It is sufficient to argue that they have not been shown to be less effective than conviction and sentence.”

There is then recognition that the traditional criminal justice process has limitations and it is therefore hardly surprising if alternative options have been sought (for a full survey see Dingwall and Harding 1998).

If diversion can sometimes be warranted on the grounds of expediency and effectiveness, this does not mean that the practice should escape criminological and legal scrutiny. This need has become even more pressing in light of two comparatively recent developments. The first is that cautioning, the traditional mechanism for diverting juvenile offenders (for detail see Dingwall and Harding 1998, pp 98-119; Muncie 1999, pp 279-284), has been replaced by a new framework of reprimands and warnings (Crime and Disorder Act 1998, ss 65-66). Fuelled by a belief that cautioning was ineffective (Home Office 1997a, 1997b), reprimands and warnings were deliberately designed to be more punitive in nature – how things had changed from 1990 when a Home Office circular stated that (Home Office 1990, para 7) “[there] is widespread agreement…that diversion from the courts by means of cautioning or other forms of action may reduce the likelihood of re-offending”.

Secondly, the Human Rights Act 1998 came into force. The impact of this Act to the practice of diverting juveniles was considered by the House of Lords in the landmark case of R v Durham Constabulary, ex parte R [2005] UKHL 21. Aspects of this controversial judgment will be considered further in many of the articles that follow.

What is unique about this special edition is that the diversion of juveniles is critically analysed from a number of different perspectives, including empirical (Hine; Keightley-Smith and Francis) and penal (Koffman and Dingwall). Gillespie uses a particular group of young people, child prostitutes, to demonstrate that current practice may target the wrong group. Although the Durham Constabulary case forms a useful focus for discussion, the overriding aim of this special edition is to explore some of the issues raised by the extensive use of diversion in its current forms in the youth justice system. The following observations illustrate some of the central issues that emerge.

The special edition features two examinations on the use of diversion after the Crime and Disorder Act 1998. Drawing on data from two studies in which she was involved, Jean Hine reports on how juveniles and their parents perceive reprimands and warnings. Both from a practical and from a theoretical stance, this is important. The results of her study inform subsequent discussions of whether the rights of individuals are adequately protected by the current framework. Amongst several notable findings, Hine demonstrates that juveniles who are diverted often view their behaviour differently from the police. They may regard their actions as legal, as childish, as none of the police’s business, but agree with the “facts” presented thereby admitting guilt in the police’s eyes. In a couple of the examples Hine cites the juvenile’s explanation, if believed, would mean that he was not guilty of the alleged theft as there was a lack of dishonesty (Theft Act 1968, s.2(1)(a)). However, by admitting the conduct, the juvenile in practice conceded guilt. These concrete examples show that there are genuine grounds for concern that individuals will be diverted when they are legally innocent. Hine’s study also illustrates that the supposed protection offered by appropriate adults and solicitors can be illusory; all too often parents accepted the warning (even if it was perceived as harsh) whilst solicitors were not always involved.

Hine’s study is complemented by Lynn Keightley-Smith and Peter Francis’ article on the operation of final warnings in a metropolitan city in northern England. As well as the views of juveniles who received warnings, Keightley-Smith and Francis explored the views of police officers who determined whether to issue a warning in any given case. Their conclusion highlights the distinction that can arise between statutory intent and practical implementation in criminal justice. Even though the framework in the Crime and Disorder Act 1998 was designed specifically to reduce police discretion in decision-making, Keightley-Smith and Francis argue that it has actually had the opposite effect by formalising the process. Another notable point raised in their article is that young people feel excluded from the process, a conclusion shared by Hine, and that this exclusion will not help produce the self-responsibility that the Government was so keen to foster.

Both of these studies suggest that the process is perceived by the police, by the young people and by their families as punitive. In particular, young people and their parents often appear to regard a reprimand or a warning as a disproportionate response to their offending behaviour. Laurence Koffman and Gavin Dingwall’s paper offers a theoretical analysis of the punitive aspects of diverting juveniles. Central to their argument is the idea that juveniles are often not diverted from punishment but rather are diverted to a different form of punishment. One of the most contentious conclusions in the Durham Constabulary case was that reprimands and warnings do not constitute punishment for the purposes of the Human Rights Act 1998 ([2005] UKHL 21 at [14]; see further Dingwall and Koffman 2006, pp 483-488). Koffman and Dingwall challenge such a finding by adopting a desert perspective. It is argued that the consequences of a reprimand or a warning can be significant (as they were in the Durham Constabulary case) and, as such, the relationship between these options and the gravity of the offending conduct (assuming that the conduct is in fact criminal, see Hine) needs to be considered carefully. The authors also discuss the use of other diversionary mechanisms, in particular the anti-social behaviour order, which are employed as a response to juvenile offending. It is argued that penologists need to review not only the punitiveness of each individual strategy but how these strategies should interrelate.

A question that readers may ask is why Koffman and Dingwall adopt a retributive, desert-based model when warnings were designed specifically to incorporate an element of rehabilitation. There is considerable debate about whether the Crime and Disorder Act 1998 had any underlying penal rationale (Fionda 1999) and, if so, what it was (Dignan 1999; Puech and Evans 2001). However, the Act does differentiate between reprimands and warnings in part on the gravity of the offence – clearly a retributive consideration. Moreover, the reasons why desert became popular in the 1990s were largely as a response to the arbitrary and, on occasion, highly invasive consequences of using consequentialist justifications (Koffman 2006). This concern was particularly acute with juvenile offenders due to the minor nature of much of their offending and the excessive penal responses often witnessed.

Adopting and adapting desert criteria to juveniles is fraught with difficulty (von Hirsch 2001; Zedner 1998). In particular, the problem of determining culpability when individuals do not possess a fully mature conception of responsibility has to be addressed. This is a significant issue both with regard to setting the age of substantive criminal liability and, assuming the individual can be held liable, on the extent, if any, that reduced culpability should have on punishment. Here though Koffman and Dingwall use desert to demonstrate that diversionary mechanisms are often punitive in nature – despite the House of Lords’ ruling – and consequently that their use should be proportionate to the gravity of the offence. The importance of desert in this context is to ensure that young and potentially vulnerable people are not subjected to disproportionate interference with their liberty.

Alisdair A. Gillespie’s paper, the final one in this special edition, provides an in-depth critique of the use of diversion to respond to a particular type of offending: children involved in prostitution. In the twenty-first century the law still regards children involved in prostitution as perpetrators and, although prosecutions have dropped considerably in the past decade, this is because of the increased use of the diversionary measures discussed elsewhere in this special edition.

The paper demonstrates that dealing with juveniles as perpetrators masks the wider social factors that can be responsible for their criminal behaviour. In the area of child prostitution this is perhaps most obvious with research suggesting that socio-economic factors are more likely to be responsible for the “recruitment” of a child into prostitution rather than deliberate choice (Phoenix 2003). To be fair to the Labour government it was responsible in 2000 for the introduction of a policy that requires a child to be considered primarily as a victim (Department of Health 2000) and this was responsible for the reduction in prosecution of juveniles involved in prostitution. However it did not decriminalise the activities and in recent years prostitution has begun to be considered an anti-social behaviour (Matthews 2005) and this has led in turn to the increased use of diversionary procedures.

Gillespie raises questions as to whether concentrating on the criminal justice system as a method of resolving juvenile behaviour is capable of diverting them from their delinquent behaviour. When this is placed in the context of the other papers in this edition it can be suggested that diversion can have the undesirable effect of stigmatising young offenders and ensuring that their rights and freedoms are circumvented.

The title of this edition, “Diverting Juveniles, Diverting Justice”, highlights the concern that, whilst there may be criminological and economic benefits, diversion may come at a cost to the individual diverted. These dangers have been recognised elsewhere and include the possibility that someone who committed no offence may admit to it on the basis that the alternative was prosecution, the possibility that someone may confess in order to leave the police station, the fact that the police could induce a confession by minimising the effects of a reprimand or warning and, finally, that the supposed protection offered by appropriate adults and/or legal advisors may be wanting. It is appropriate to consider these issues, and others, on the basis that most juvenile offenders are diverted. Although one could argue that lawyers and criminologists should focus on the most serious offences and the most serious forms of punishment, we would argue that the way in which the criminal justice system deals with juvenile, minor offenders is telling. We would like to thank the contributors to this special edition for confirming our belief.

References

Ashworth, A and Redmayne, M (2005) The Criminal Process, 3^rd ed (Oxford: Oxford University Press)

Becker, H S (1963) Outsiders: Studies in the Sociology of Deviance (New York: Free Press)

Dignan, J [1999] ‘The Crime and Disorder Act and the Prospects for Restorative Justice’ Criminal Law Review 48

Dingwall, G and Harding, C (1998) Diversion in the Criminal Process (London: Sweet & Maxwell)

Dingwall, G and Koffman, L (2006) ‘Diversion, Punishment and Restricting Human Rights’ 57(3) Northern Ireland Legal Quarterly 478

Fionda, J [1999] ‘New Labour, Old Hat: youth justice and the Crime and Disorder Act 1998’ Criminal Law Review 36

Gove, W R (1980) The Labelling of Deviance: Evaluating a Perspective, 2^nd ed (London: Sage)

Home Office (1990) The Cautioning of Offenders Circular 59/1990 (London: Home Office)

Home Office (1997a) Tackling Youth Crime (London: Home Office)

Home Office (1997b) No More Excuses – A New Approach to Tackling Youth Crime in England and Wales (London: Home Office)

Koffman, L [2006] ‘The Rise and Fall of Proportionality: the failure of the Criminal Justice Act 1991’ Criminal Law Review 281

Lemert, E M (1951) Social Pathology: a Systematic Approach to the Theory of Sociopathic Behaviour (New York: McGraw-Hill)

Lemert, E M (1972) Human Deviance, Social Problems and Social Control (Englewood Cliffs, NJ: Prentice-Hall)

Muncie, J (1999) Youth and Crime (London: Sage)

Puech, K and Evans, R [2001] ‘Reprimands and Warnings: popular punitiveness or restorative justice?’ Criminal Law Review 794

Sagarin, E (1975) Deviants and Deviance (New York: Praeger)

Von Hirsch, A (2001) ‘Proportionate Sentences for Juveniles: how different than for adults?’ 3(2) Punishment & Society 221

Zedner, L (1998) ‘Sentencing Young Offenders’ in Ashworth, A and Wasik, M (eds) Fundamentals of Sentencing Theory (Oxford: Clarendon Press)