The Children Act 2001 formally established Ireland’s Juvenile Diversion Programme. The aim of this programme is to prevent young offenders in Ireland from entering into the full criminal justice system by offering them a second chance. The intended outcome of the Programme is to divert young people from committing further offences. Where a young person comes to the notice of the Garda Síochána because of their criminal activity, they may be dealt with through the Diversion Programme.
The Programme facilitates young people who are under 17 years of age but can be extended to those under 18 years of age. Sections 17–51 of the Children Act 2001 set out the role and remit of the Juvenile Diversion Programme. Sections 123–127 of the Criminal Justice Act 2006 amended the 2001 Act in March 2007 to allow the programme cater for children who accept responsibility for their anti-social behaviour. While the 2006 Act raised the age of criminal responsibility to 12 years of age it also allowed the programme to cater for children aged 10 or 11 years.
The current diversion programme evolved from an informal scheme which had operated on a non-statutory basis since the early 1960’s. That scheme allowed the gardaí to deal informally with people under 18 years of age who had committed criminal offences. The purpose of the original scheme was to prevent young offenders from entering into the courts system and incurring a criminal record.
The Juvenile Diversion Programme is administered by specially trained gardaí called Garda Juvenile Liaison Officers (JLO). These gardaí are specially trained to deal with young people and their families in relation to crime-prevention, the operation of the diversion programme and all other areas involving young people and the criminal justice system. Each Garda District in Ireland has a juvenile liaison office and it is their responsibility to maintain informal contacts with young people at risk and to liaise with teachers, Child and Family Agency staff, school attendance officers and other gardaí in their local area.
Overall responsibility for the operation of the Juvenile Diversion Programme lies with the National Juvenile Office. This is part of the Community Relations Section of the Garda Síochána which is located in Dublin. The Office was established in 1991. The Garda National Juvenile Office is also responsible for liaising with voluntary and statutory bodies regarding the welfare of young people, developing contacts with school attendance officers, formulating crime-prevention programmes for juveniles at risk and recording and examining cases of juveniles missing from home.
The idea behind the Juvenile Diversion Programme is to allow for young people who commit criminal offences to be dealt with by means of a caution instead of the formal process of charge and prosecution. A caution is a warning by the Garda Siochána against committing certain types of behaviour.
The child, where appropriate, is placed under the supervision of a JLO.
The programme allows for a conference(s) to be held which can mediate between the child and the victim, if appropriate, and draw up an action plan for the child.
In advance of admission to the programme, a JLO is assigned to assess the suitability of the young person for inclusion in the programme. Before the young person is considered for admission, he/she must admit involvement in the offence. Following this assessment, a decision is then made as to whether or not to administer a caution.
It’s important to note, the final decision as to whether or not a young person is cautioned lies not with the Garda Síochána, but instead with the Director of the National Juvenile Office. In cases, however, which involve serious crime, consent to issue a caution must first be obtained from the Director of Public Prosecutions. If the Director of Public Prosecutions decides a young person is not to be included in the Juvenile Diversion Programme because of the serious nature of the crime then, the young person is dealt with through the criminal justice system by way of charge and prosecution.
In carrying out an assessment for admission to the programme, the JLO consults with the young person’s parents or guardians and may also consult with the victim. While the consent of the victim is not required for a caution to be made, the consent of the parent or guardian is normally required.
The Director of the National Juvenile Office decides whether or not a child is to be admitted to the programme once the preconditions have been met, except in cases of serious offences where the decision lies with the Director of Public Prosecutions as mentioned previously.
There are three basic criteria laid down which must be satisfied in order to be eligible for admission to the programme:
The Director is obliged to direct a JLO to give notice in writing to the parents or guardian of a child who is admitted to the programme. This notice includes the type of criminal behaviour in respect of which a caution is to be given. It also states whether or not the caution is to be formal or informal. The parents or guardians are obliged to attend the cautioning process.
While the notice is to be given in writing the Director ensures the notice is given in language which can be understood by the parents or guardians and this may mean that the notice be given in the mother tongue of the parents or guardian. The notice shall also be available in Irish for children from Gaeltacht areas or whose first language is Irish.
Any child who has been admitted to the Garda Juvenile Diversion Programme is protected from prosecution for the criminal behaviour which resulted in his/her admission to the programme. Any acceptance by the child of responsibility for their criminal behaviour in respect of which they have been admitted to the programme will not be available in any civil or criminal proceedings against that child. However, under Section 126 of the Criminal Justice Act 2006, it may be used where a court is considering the sentence to be imposed in respect of an offence committed after admission to the programme.
The identity of any child who is either admitted to or considered for admission to the programme is not disclosed publicly. Any person who publishes or broadcasts such information is guilty of an offence.
Two types of caution may be given; formal or informal. The decision as to whether to administer a formal or informal caution is made by the Director of the Programme and will depend on the seriousness of the child’s criminal behaviour.
The formal caution is given by a Garda inspector or more senior. Those present when the caution is delivered must include the child, the child’s parents or guardian and a JLO. The Director of the Programme may also invite the victim of the crime to attend.
There is no specific format (that is, wording or procedure) for administering the caution. The officer who gives the caution, however, normally discusses the criminal behaviour and highlights to the child the seriousness of his/her actions. The child may be invited to apologise to the victim and where appropriate to make financial or other reparation to the victim. The formal caution normally takes place in a Garda Station to highlight the seriousness of the situation to the child.
The informal caution given for less serious criminal behaviour may be given at the child’s home or in a Garda station. It is administered by a JLO. The only persons obliged to attend while the caution is being given are the parents or guardian of the child. There are no provisions for attendance of anybody other than the parents or guardians and the child.
Every child who receives a formal caution through the Garda Diversion Programme is placed under the supervision of a JLO for twelve months. The level of supervision is normally a matter decided by the JLO.
Section 28(2) of the Children Act 2001 sets out the various matters which must be considered in deciding the appropriate level of supervision. These include the:
• Seriousness of the child’s behaviour
• Level of support given to, and the level of control of, the child by the parents or guardian
• Likelihood of the child committing further offences
• Directions from the Director regarding the appropriate level of supervision.
Supervision normally involves the JLO being pro-active in relation to the child’s behaviour. It won’t normally involve the child reporting to the JLO at specified times and allows the child the opportunity to return to his/her normal routine, without the intrusion of being forced to attend meetings on a regular basis.
It is important, however, for the child to realise his/her behaviour is being monitored for the period of supervision.
Supervision does not normally result from an informal caution. Only in exceptional circumstances does a supervision period of six months apply after an informal caution.
A key part of the Garda Juvenile Diversion Programme is the facility to hold a meeting (or conference) to discuss the welfare of a child admitted to the programme. These conferences are established in law through Section 29 of the Children Act 2001.
The conference may mediate between the child and the victim (where appropriate) in accordance with the terms of the programme. Conferences also formulate an action plan for the child. They must uphold the concerns of the victim and have due regard to his or her interests.
A key part of the Garda Juvenile Diversion Programme is the Juvenile Diversion Programme Conference. More than one conference may be held for a child. The purpose of the conference is:
The decision to hold a conference lies with the Director of the National Juvenile Office. Before the Director makes a decision, the Juvenile Liaison Officer (JLO) appointed to supervise a child under the programme recommends in writing that a conference is held. The child’s parents/ guardian must agree to the conference before it can be held. The consent of the child is not required but his/her views must be obtained on the matter.
If the Director decides to hold a conference they must appoint someone to convene and chair the conference. This person is known as the facilitator and they must be either the supervising JLO or another Garda.
The child, their parents/guardian and a Garda facilitator attend the conference. Other family members and relatives may also attend, if this is appropriate. The facilitator may also invite other people who the facilitator feels would make a positive contribution to the conference, such as, representatives from the Child and Family Agency, the Probation Service and the child’s school.
The victim is invited to the conference and any family or friends of the victim that the victim requests, unless the facilitator believes their attendance would not contribute to the conference
The conference is obliged to consider the appropriate level of supervision of the child and whether it should be varied. Normally a conference only occurs if the supervision of the child is not having the desired effect and the child’s behaviour isn’t improving.
When a conference is called, an action plan is normally agreed for the child. The action plan must be agreed by all those present at the conference. An action plan is not a compulsory function of the conference but it is a normal outcome of the conference.
Some of the items an action plan may cover include:
Once an action plan is agreed, the plan comes into operation on the date on which it is signed by the Garda facilitator, the child (if possible) and one other person present. The action plan is reviewed at any time within six months from the date the plan is signed. The details of the conference and any action plan must be reported to the Director of the National Juvenile Office.
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.