OECS JUVENILE JUSTICE REFORM PROJECT/ JUDICIAL EDUCATION INSTITUTE (JEI)
OF THE EASTERN CARIBBEAN SUPREME COURT
MAGISTRATES CONFERENCE
TRAINING WORKSHOP FOR THE CARIBBEAN
LOOKING TOWARDS A NEW DAWN: DIVERSION IN JUVENILE JUSTICE
26-28 August, 2013
The Verandah Resort & Spa Antigua
Indian Town Road, Long Bay, Antigua and Barbuda
Session 3 : Diversion
Facilitator: Hazel Thompson-Ahye LLM Merit Family Law
1
Diversion
Definition
• Removal of a juvenile offender from formal juvenile
justice proceedings and directing him/her towards
community support, both formal and informal by
police, prosecution, or other agency e.g. court.
See Rule 11(2) Beijing Rules
• Measures for dealing with children alleged as, accused
of, or recognized as having infringed the penal law
without resorting to judicial proceedings, providing
human rights and legal safeguards are fully respected.
• Article 40(3) (b) Convention on the Rights of the Child.
When? At any stage of the juvenile justice process.
In what type of case? Petty or serious offences.
2
Diversion
Guiding Principles (CRC General Comment No 10)
• Human rights, legal safeguards must be respected,
protected.
• Admission of responsibility/finding of guilt.
• No pressure must be applied.
• Free and voluntary consent to be given in writing by
child, parent/guardian.
• Law/policy empowering police, prosecutor to divert.
• Availability of legal advice/appropriate assistance.
• Opportunity for review
• Completion of diversion should bring end to case.
3
Diversion
• Guiding Principles: See also• Guidelines for Action on Children in the
Juvenile Justice System: Action 15
• Appropriate steps should be taken to make
available a broad range of alternative
measures at pre-arrest, pre-trial, trial and post
-trial .
4
IMPORTANCE OF DIVERSION
• Why use diversion?
• Avoids stigmatization of child, social isolation,
negative publicity,
• Aids reintegration
• Frees the court of a number of cases
• Can address problematic behaviour and avoid its
escalating into more serious problems
• Can provide an avenue for a more appropriate
response to wrong-doing.
5
DIVERSION PROGRAMMES
•
•
•
•
•
•
•
•
•
•
•
REGIONAL/ INTERNATIONAL PERSPECTIVES
Informal, unstructured; formal/structured
Warning, caution( police)
penal warning ( court) reprimand and discharge
Care, guidance, supervision, probation, foster care
Counselling, family intervention programmes
Compensation, restitution, confiscation of property
Conditional discharge
Educational and vocational training programmes
Community service
Mediation
6
DIVERSION PROGRAMMES
• REGIONAL/ INTERNATIONAL PERSPECTIVES
• Restorative justice (Australia, South Africa,
North America)
• Drug treatment programmes
• Mentoring programmes
• Day report centres,
• Youth contracts
• Community monitoring
• Other specialist programmes
7
DIVERSION PROGRAMMES-International perspectives
Juvenile Justice System Enhancement Strategy(JJSES)Penn.
Professionals-Chief Probation Officers, juvenile prosecutors,
defenders, delinquency service providers, juvenile court judge,
victim services, children, youth administrators came together
1.Established leadership team 2.Created statement of purpose
Work in partnership to enhance capacity of Pennsylvania jjses to
achieve balanced and restorative justice mission by
-employing evidence-based practice with fidelity at every stage
of jj process
-collecting and analyzing the data necessary to measure the
results o these efforts; and with this knowledge, striving to
continuously improve the quality of the decisions, services and
programmes.
( Keith Snyder, Deputy Director Pa. Juvenile Court Judges Commission)
8
DIVERSION PROGRAMES
• Juvenile Justice System Enhancement Strategy(JJSES)
Developed a plan/Communicate/Measure Progress
• Evidence - based practices: use of scientific research
to guide and inform efficient and effective justice
service-guide policy/practice. Objective and more
accurate method to determine risk of re-offending.
• Research to improve consistency and objectivity.
• Why probation approaches ineffective? Too much
attention to low risk , too little to high risk, to
research, work load too high, system not in
alignment, wrong focus
• Assessment of low risk, moderate, high, very high.
9
DIVERSION PROGRAMMES-International perspectives
Juvenile Justice System Enhancement Strategy JJSES
Low risk: no history anti-social behaviour, supportive family,
prosocial friends, engaged positive activities
Risk management (low risk) least restrictive
Risk reduction (moderate/ high) address criminogenic needs)
Risk control (extreme high risk) control risk of reoffending
under correctional authority.
Key principles
Risk principle- (Who to target)
The need principle- What to target
Responsivity principle (How to match)
Treatment Principle (Which programme)
10
DIVERSION PROGRAMMES-International Perspectives
• Juvenile Justice System Enhancement Strategy (JJSES)
• The Need Principle
• Antisocial thinking - blame others, takes no responsibility, lack of
respect for authority
• Peers and associates -with delinquent histories, antisocial
lifestyles, positive affirmation of antisocial acts
• Personality (coping skills)-problem solving, emotional regulation,
anger management, impulsivity, easily bored
• Family- stressors in home, harsh parenting, non-caring, lack of
warmth, lack of accountability, victimisation
• Substance abuse-drug/alcohol abuse, history of drug/alcohol
abuse in home, lack of support to acquire, maintain sobriety
• Education- poor academic achievement, poor school attendance,
conflict with school authorities, no home support
• Employment- poor work history, conflict on job, poor attendance,
lack of support for achievement
• Leisure- lack of interest in social recreational pursuits, plenty idle
time, lack of structure in after school hours
11
DIVERSION PROGRAMMES-International Perspectives
• JJSES
Responsivity principle- Identifying mode and style of
service suitable for juvenile – this involves matching
learning style and abilities of offender with personnel
delivering service.
• Treatment principle-What does not work• Punishment, sanctions, incarceration, fear-based
programme-scared straight, shaming programme,
intensive supervison without treatment, drug education,
drug prevention focusing on fear or emotional appeal,
non-action group counselling
• What works-programmes that focus on criminogenic
needs, match offender to right programme, family- based
approach, positive reinforcement, seek right level of
dosage, intensity.
• Know the who, what, how, which.
12
DIVERSION PROGRAMMES-International Perspectives
• Cognitive-behavioural therapy (CBT)
• Services geared towards specific risks and needs of offenderevaluation-impact treatment of reoffending
• positive cost-benefit outcome
• Blend of behavioural theory- external behavours and
cognitive therapy-internal thought process
• Develop skills for living in harmony with community and engage in
behaviour that contribute to positive outcomes in society
• Not enough for individuals to resolve own personal problems
treatment focus on responsibility towards others and community.
• Two important components:
• 1. Provider
• 2. Relationship between provider and client
Milkman, H and Kenneth Wanberg: Cognitive- Behavioural Treatment A review and discussion for
Corrections Professionals
13
DIVERSION PROGRAMMES-International Perspectives
Eg.CBT programme: Aggression Replacement Training-ART
• An intervention for aggressive adolescents and children
consistent with the restorative practice framework.
• Studies have shown its efficacy with skill learning, anger
control and reducing recidivism. 3 components:
1. SkillStreaming (behavioural component)-social skills
training- a curriculum of prosocial, interpersonal skills- what
to do instead of aggression, dealing with anger -provoking
events.
2. Anger Control Training (affective component)- teaches
youth what not to do if provoked- teaches self control
competencies.
3. Moral responsibilty training (cognitive component) promotes values that respect the rights of others, raise level
of sense of fairness, justice, help youths want to use the
interpersonal and anger management skills taught
International Institute for Restorative Practices
10 –week, 30 hour intervention programme administered to groups of 8 – 12 youths three times per week
14
DIVERSION
• Some concerns
• Net widening
• Diversion programmes designed to divert
youths from the judicial process might bring
into the system youths who otherwise might
not have entered the system because of
paucity of evidence.
• Infringement of due process
• Right to silence / presumption of innocence
at risk?
15