POLICE CAUTIONING
EFFECTIVE DIVERSION OR
EXPEDIENCE?
Ann Lewis and Clement O'Regan
IN QUEENSLAND, POLICE CAUTIONING HAS BEEN THE PRIMARY METHOD OF
diversion of juvenile offenders from formal criminal justice processing since
1963. Cautioning programs have been introduced in various other Australian
jurisdictions since this time. In excess of 11,000 juveniles, that is children
between ten and seventeen years of age, were formally cautioned in
Queensland in 1990-91 for a range of criminal and quasi-criminal offences.
This paper looks at the theory and practice of cautioning in Queensland.
Cautioning
Queensland Police Service internal instructions currently govern cautioning
procedures. These instructions have been replicated in the Juvenile Justice Act 1992,
which will be the legislative basis for administering cautions when the Act is
proclaimed. The Act will only provide the outline of cautioning procedures. The details
to a large extent will still be contained in police instructional material.
Prior to the Juvenile Justice Act the ability of police to caution, as opposed to
proceeding against a person, is based in the common law discretion of police. This
discretion allows police some degree of latitude in what action, if any, they take against
a person who has committed an offence. There is much debate over the extent of this
discretion and its probity. This discretionary authority has now been formalised in the
Juvenile Justice Act. In practice, Queensland allows police to exercise this discretion in
relation to juveniles between ten and seventeen years of age, soon to be eighteen years,
with regard to all offences. However, the seriousness of the offence is a major
consideration as to whether this discretion is exercised.
Normally, cautions are administered for the first offence which comes to police
attention. However, if the offences are separated by time and the circumstances
warrant it, the child may receive more than one caution.
National Conference on Juvenile Justice
Cautioning is a formal process, ordinarily carried out by Juvenile Aid Bureau
officers who are specially trained in this procedure and the practices involved. Practice
standards dictate that the caution should be carried out proximate in time to the
offence, but normally not on the same day.
The caution can only be used where the juvenile admits the offence and the
juvenile and the juvenile's parents accept that it is an alternative to court action. A
caution takes between thirty and forty minutes to administer. It can only be
administered in the presence of the child's parents or caregiver. The process usually
involves a discussion about the offence and the caution with both the child and any
accompanying caregivers. A separate discussion with the child and between parents
and police then takes place. Finally, the parties are brought back together for the
formal component of the caution. The Juvenile Justice Act adds a further step with the
mandatory service of written notice of caution upon the child and parents.
The separate discussions with child and parents are primarily to identify any
possible underlying factors (for example, physical or sexual abuse) which may have led
to the offending behaviour. In this way, the caution is more than a simple exhortation
to commit no further offences. It has a more pro-active element in investigating the
reasons for the behaviour rather than the behaviour itself.
The fact that the child has been cautioned is recorded and this forms part of the
official police record. The purpose of this report is twofold. First, it indicates that an
offence has occurred and second, it records the statistical "clearance" of that offence.
The juvenile is recorded on the police information system as having been cautioned for
that particular offence. This means that if the child comes to notice again police have
some record of that occurrence and can make an informed decision about what action
should be taken against the child, if any. It also means that a child cannot be dealt with
for the same offence twice, as the lodging of the offence report "writes off" the
offence.
Despite the formal nature of a caution it is still sufficiently flexible to meet some of
the diverse needs of offending children. The cautioning program takes into account the
previous history of the young offender and the circumstances of the offence. A police
officer may not be able to address all the problems being faced by the juvenile so the
officer might refer the child on to a more appropriate person or agency. The cautioning
process encourages any underlying problems facing the family and young offender to
be addressed.
The personal distress and inconvenience to the victim caused by the juvenile is
highlighted to ensure the offender understands the consequences of any criminal
activity. Extensive efforts are made to reintegrate the young offender with his or her
community. The Juvenile Justice Act provides an apology mechanism between victim
and offender.
The cautioning program allows juveniles to come into contact with police in a
more favourable environment, which in turn improves the relationship between police
and young people in the community.
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Police Cautioning
Informal Cautions
As already outlined, the basis for cautioning stems from the common law discretion of
a constable. This discretion allows for a less formal cautioning procedure than the one
described. Police can and do administer informal cautions for behaviour, particularly
for street offences and minor traffic infringements. While technically constituting
offences, these are most effectively dealt with at the time of the event and do not
warrant further action. This type of caution is not recorded and normally would not
involve the juveniles' parents. However, in appropriate cases, such as an intoxicated
child, the child may be taken home and/or the parents contacted. Such cautions are not
recorded and are administered "on the spot".
The Basis of Cautioning
Numerous studies have examined the nature of juvenile offending and have
recommended that diversionary schemes, primarily cautioning programs, be
implemented to prevent children entering the formal criminal justice process (Potas et
al. 1990, Leivesley 1984, O'Connor & Sweetapple 1988, New South Wales. Standing
Committee on Social Issues 1992, O'Connor 1992).
The alternative to a child being cautioned or otherwise diverted is for the child to
appear before a children's court. This means that the child is charged by way of
summons or arrested. In the latter case he or she is processed through a police watchhouse, where she or he might be fingerprinted and photographed. This formal justice
process is seen, therefore, as an over reaction to criminal behaviour, which in most
cases is minor and property related.
Critics of court based responses believe that court appearances have a detrimental
effect upon juveniles through the criminalisation of the child and the reinforcement of
the wrongful behaviour. Diversionary schemes aim to avoid this effect.
The primary motive behind this response is the finding that most children grow out
of crime. Children's recidivism rates are low in comparison with adult rates. Data on
recidivist rates for juveniles coming to the notice of police is difficult to obtain,
however, indications are that between 70 per cent and 85 per cent of juvenile offenders
never come to notice again (Harrison 1992, O'Connor 1992, Leivesley 1984, Potas et
al. 1990).
Another advantage of diversionary programs, as opposed to court appearances, is
that courts by their nature are adversarial. Despite the best effort to make proceedings
in the children's courts relatively informal, O'Connor and Sweetapple (1988) show that
juveniles, their families and sometimes even practitioners lack a real understanding of
the court and its procedures. On the other hand, the use of properly structured
cautioning procedures enhances the juveniles' understanding of their offending
behaviour and its consequences.
The important aspect here, though, is that cautioning allows the behaviour of the
child to be examined, rather than the actual offence, as is required in the legalistic court
process. As explained earlier, the officer
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administering the caution is trained to look for indicators of other factors which will
affect the child's behaviour and well-being, particularly those of abuse.
Another advantage of cautioning is that it is cheap. Potas et al. (1990) delineate
the costs of dealing with juvenile offenders in Queensland. Figure 1 uses information
from Potas et al.'s (1990) "Young People and Crime, Costs and Prevention" and gives
some indications of the costs incurred by police in Queensland in dealing with juvenile
offenders.
Figure 1
Estimated Cost to Queensland Police of Processing
Selected Juvenile Offences, 1988
Data Source: Potas et al.1990
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Figure 1 illustrates that cautioning is considerably cheaper than any type of court
appearance. This finding reflects previously unquantified reasoning that cautioning is
the most cost effective and expedient method of dealing with minor transitory juvenile
crime.
Criticisms
A philosophical difficulty with the concept of cautioning is that the process is
controlled by police, with little outside scrutiny. In Queensland in practice, it is the
investigating officer who makes the decision about what action is taken in relation to a
young offender. This in effect means that the police officer may be the investigator, the
inquisitor and the arbiter who also determines the penalty which is to be imposed upon
the child.
There is obvious scope for misuse by police of this discretion (like any other
police discretion). The corollary to this position is that police who are correctly trained
and who act ethically in accordance with the spirit of the principles of juvenile justice
are in the best position to judge what action should be taken. Further, to change this
process would require the imposition of another body, external to the police service, to
examine and regulate the diversionary scheme. This might lead to the advantages of
cautioning being undermined. An external regulator would need to take on a quasijudicial function and appearance, to some extent counteracting the decriminalising
benefits of cautioning over the courts. The additional costs imposed by the creation of
such an infrastructure may be substantial and similarly erode the cost benefits of
cautioning.
The Juvenile Justice Act addresses this issue in two ways, first by requiring police
to consider the use of cautioning prior to taking action, and second by not making
restitution a pre-condition to the giving of a caution as is currently the case under
police general instructions. This statutory requirement still does not resolve the issue of
police being the first and final arbiters on how a child is to be dealt with for a particular
offence.
Another perceived difficulty with cautioning is that it is seen by some in the
community as being a "wrist slapping" exercise. That is, the child is seen to have been
let off lightly with a warning, without being punished, according to the way many
adults conceive of punishment. This perception in many respects can be attributed to a
general misunderstanding of the effectiveness of harsh penalties as a deterrent to
criminal behaviour. It seems that the motive of revenge rather than correction holds
more sway in the popular media.
Cautions reflect the expectations held by the community that although many
young offenders will be diverted from the formal criminal justice system, they will still
be held accountable for their actions. However, cautioning is not appropriate if the first
offence is a serious one such as murder, rape or robbery with violence. The community
in general considers it to be inappropriate for police to caution in these instances.
Under the Juvenile Justice Bill, the wider range of sentencing orders will allow some
flexibility in these matters.
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Under the Juvenile Justice Act the police cautioning process will formally take into
account cultural factors especially in relation to Aboriginal communities. The
cautioning of Aboriginal offenders may be carried out by an Aboriginal elder if
considered appropriate. This will also apply to other cultural and ethnic communities.
Prevention is Better than Cure
It is evident that cautioning is an effective sanction for first offenders in the vast
majority of cases. However, cautioning is not the means by which appropriate
interventions are facilitated for potential core group offenders prior to them becoming
entrenched in the justice system.
In acknowledgment of special issues involving children, the Queensland Police
Service has police who specialise in dealing with juveniles. The Juvenile Aid Bureau is
a dedicated functional area dealing with juveniles. It is staffed by police who have a
genuine interest in working and dealing with youth. Juvenile Aid Bureau personnel
have greater experience and generally a more professional and sensitive relationship
with children and youth. Programs have been developed which encourage positive
youth/police interactions.
Research by Alder et al. (1992) indicates young people in Queensland and
Western Australia are more involved with police-youth programs, such as blue-light
discos, police youth clubs and school visits, than youth in Tasmania and Victoria.
Police regularly participate in activities with young people within their own
communities. They are involved in their own time on a voluntary basis with programs
such as Blue Light Discos, Neighbourhood Watch, Youth Clubs, Safety Houses,
Adopt-a-Cop and other specific schemes within their regions.
The research by Alder et al. (1992) found that juveniles surveyed in Queensland
were more likely than those surveyed in Tasmania, Victoria and Western Australia to
report that their experiences if taken to a police station were positive. Queensland
youth were the least likely groups to be held in police cells or to report mistreatment
by police.
Police are involved in an extensive range of activities in their dealings with young
people. Much of this contact with police is routine: taking complaints, providing
general information, providing assistance and performing general police duties. Much
of this contact is on an informal basis.
Community Policing
Community policing has been adopted by the Service as the preferred policing model in
line with the Fitzgerald recommendations. Community policing at a local level, while
improving police-community relations generally, also impacts on young people.
In recent times a conscious effort has been made by the Police Service to improve
relations between police and young people. Communication avenues have been set up
in many regions which assist in this process. These
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forums are often a part of a "whole-of-community" approach to the problems being
experienced by youth.
Work experience has allowed high school students to work within the police
environment. This has resulted in better understanding, changed perceptions of police
and a heightened interest in policing.
The Queensland Police-Citizens Youth Welfare Association, which is partially
resourced by the Queensland Police Service but is community based and controlled,
provides a network of facilities which service youth and provide activities for young
people in general. It is presently attempting to focus its response on youth at risk. Its
thirty-one clubs scattered throughout the state offer four different types of activity
units which are directed primarily at young people:
• sport activities;
• recreational activities;
• youth and community assistance programs; and
• cultural/passive activities.
Activities include a youth diversion program where young offenders who have
been cautioned by the Juvenile Aid Bureau are given the opportunity to attend
adventure based training.
Conclusion
There has been a change of emphasis by the Queensland Police Service in recent times
when developing policies and strategies for dealing with juvenile offenders. Improved
police training will assist police to deal more sensitively with juveniles especially as the
positive skills of recent training initiatives filter down to street level policing. Increased
training has meant that personnel clearly understand their rights, duties and
responsibilities concerning their dealings with juveniles. Practices have been introduced
to ensure that the police response within the juvenile justice system is correct and nondiscriminatory.
The Service has put in place internal administrative guidelines which reflect the
changing philosophy for dealing with juvenile offenders. Arrest rates for juveniles are
decreasing substantially. Instances where children are kept in custody for any length of
time have also steadily declined.
The Service is committing more resources to crime prevention generally but more
particularly to youth crime prevention. Diversionary strategies, like the cautioning
process, are widely used to deal with appropriate offenders. The Service is relying to a
far greater degree on community support and participation in this area. Communitybased policing has become established and has shown that it can work for and not
against Queensland youth; it will take time, confidence and perseverance for this
philosophy to bear full fruit.
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References
Alder, C., O'Connor, I., Warner, K. & White, R. 1992, Perceptions of the treatment of
juveniles in the legal system, National Clearinghouse for Youth Studies, Hobart.
Harrison, B. 1992, "Full-time delinquents", Police Reviews, March 3, vol. 100, no.
5156.
Leivesley, S. 1984 (unpub), "Juvenile Aid Bureau, An evaluation of Police Work with
Juveniles 1970-1983", Queensland Police Service, Brisbane.
New South Wales. Legislative Council Standing Committee on Social Issues 1992,
Juvenile Justice in New South Wales, Report Number 4, The Committee, Sydney.
O'Connor, I. 1992, Youth Crime and Justice in Queensland, An Information and
Issues Paper, Criminal Justice Commission, Brisbane.
O'Connor, I. & Sweetapple, P. 1988, Children in Justice, Longman Cheshire,
Melbourne.
Potas, I., Vining, A. & Wilson, P. 1990, Young people and crime: Costs and
Prevention, Australian Institute of Criminology, Canberra.
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