Intern Grace Hughes’ first summary explores the Garda Youth Diversion Programme. Grace reviews Ursula Kilkelly’s Policing, Young People, Diversion and Accountability in Ireland (2011, Crime, Law and Social Change, 55(2), 133-151), analysing the policy framework for youth diversion in Ireland. Kilkelly’s article discusses Garda discretion in the context of human rights standards on transparency, accountability and professionalism in juvenile justice.
Police play a key role in youth justice in Ireland and have considerable discretion regarding the management of young people who receive a police caution. The relationship between Gardaí and young people is important, and the results of their interactions will depend on legitimacy, accountability and due process. The Diversion Programme is decent by international standards, but needs further development to ensure that the minimum intervention necessary is used, and to bring transparency and oversight to discretionary decisions made within.
This article explores interactions between young people and police officers within Irish youth justice, in the context of the Garda Youth Diversion Programme (GYDP). The GYDP reflects the power imbalance between young people and the police: interactions occur in unpredictable conditions that heighten the authority of the police officer and leave young people vulnerable. The police’s youth justice practices are also important because their legitimacy among young people depends partly on their treatment of that group.
The paper is divided into five parts. Part 1 outlines the international standards and research on youth justice and accountability vis a vis policing. Part 2 outlines the law and policy governing the treatment of young people by the police in Ireland. Part 3 details the operation of the GYDP. Part 4 considers the due process and accountability issues that arise with the GYDP, and Part 5 explores questions around complaints and monitoring. The article recommends changes that aim to promote a higher level of accountability within the Programme.
Relevant international standards include Article 40 of the United Nations Convention on the Rights of the Child (CRC), ratified by Ireland in 1992. This provides minimum guarantees for children within the criminal justice process, including when offering an alternative to judicial proceedings. The CRC notes that the utmost care must be taken to ensure that a child’s human rights and legal safeguards are respected. A formal diversion programme is only appropriate when there is compelling evidence against a child, and an admission should not be used against them in subsequent legal proceedings. Completion of a diversion programme should result in a definite and final closure of the case.
Research highlights the risks associated with early intervention: while diversion is beneficial relative to prosecution, non-intervention is a better response in many youth cases. International standards highlight the importance of minimum intervention, professionalism, accountability and respect for due process rights. Negative contact between young people and the police may worsen young people’s attitudes, and involuntary contact could have a negative and adversarial impact. Children must be treated fairly and with dignity and respect, and those who work with children should be trained to ensure that this is the case. In Ireland, research shows that the lack of public and private amenities exacerbates young people’s chances of becoming involved in the justice system. Particularly in disadvantaged communities, the leisure activity of ‘hanging around’ local areas increases the likelihood of a negative interaction with the police.
The Children Act 2001 governs the GYDP, which aims to prevent youth offending and divert young people from court. It was given statutory recognition in Part 4 of the Act and is ‘probably the single most important initiative in dealing with juvenile crime in the 20th century’. It offers opportunities for the child to be cautioned in lieu of a prosecution. This is done through a series of formal and informal measures administered by police.
The formal caution requires the child to be monitored or mentored for a period of 12 months. The Criminal Justice Act 2006 amended the Children Act to consider the long-term effects of their involvement in the programme. Through formal and informal measures, police and youth work interventions are used to prevent the child from initially becoming involved in offending behaviour. A caution is usually followed by supervision for up to twelve months by a Juvenile Liaison Officer. Interventions of this duration have a prolonged effect on the child’s autonomy, behaviour and freedom. This may affect the child’s opinion of the justice system and state, and some may even prefer to be prosecuted, rather than monitored for 12 months.
Children may be considered unsuitable for the programme if they do not accept responsibility, but all those who accept responsibility are meant to be considered. Questions remain regarding whether the most serious offences (such as murder and rape) should be referred to the GYDP, but they are typically dealt with through the mainstream criminal process.
While the GYDP is decent by international standards, there are limitations to its design and the legal and policy framework. For one, young people were not centrally involved in its design. The second major concern noted is the relationship between young people and alcohol, which requires a more targeted, evidence-based intervention.
Kilkelly argues for constant vigilance to ensure the best use of the Programme. The Children Act makes a specific provision to ensure the child’s rights are not being infringed: that they are entitled to legal advice. However, due process rights diminish once a child admits responsibility for the act, after which they are no longer entitled to legal representation. The CRC notes that diversionary approaches must only be pursued when children’s rights are fully protected. These rights are important to safeguard children within the Programme and enhance their faith in the fairness and legitimacy of the process.
The monopolisation of the Diversion Programme by An Garda Síochána is an issue for concern, since they have control over all stages of management, administration and review. The Director holds substantial discretionary powers, most notably the ability to admit a child or not into the Programme. The concern is the child’s vulnerability while the Gardaí are acting in an executive capacity: there is little recourse if a child feels they have been unfairly treated. Improvements to the GYDP could include the publications of reasons for decisions, involving civilians in the Programme, and providing an opportunity to request a review or appeal of the decision not to be admitted into the programme. Independent monitoring should also be allowed to spot-check decisions, enhancing the monitoring and transparency of discretionary decisions.
You can read about restorative justice within the Garda Youth Diversion Programme here.