Garda Youth Diversion Programme
The Children Act 2001 formally established Ireland’s Youth Diversion Programme. The aim of this programme is to prevent young offenders and children involved in anti-social behaviour 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 and/or anti-social behaviour. Where a young person comes to the notice of An Garda Síochána because of their behaviour, they may be dealt with through the Diversion Programme.
The Programme facilitates young people who are under 18 years of age. Sections 17–51 of the Children Act 2001, as amended, set out the role and remit of the Youth Diversion Programme. While the general age of criminal responsibility for children is 12 years of age, the programme can cater for children as young as 10 years old.
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. It has also been known as the juvenile diversion programme.
How the programme works
Who has responsibility for the Youth Diversion Programme?
Overall responsibility for the operation of the Diversion Programme lies with the Garda Youth Diversion Office. This is part of the Garda Youth Diversion and Crime Prevention Bureau. The Office was established in 1991 and is based in Dublin. The 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 children at risk and recording and examining cases of children missing from home.
How does the diversion programme work?
The idea behind the Diversion Programme is to allow for young people who commit criminal offences or anti-social behaviour to be dealt with by means of a caution instead of the formal process of charge and prosecution for offences or an anti-social behaviour order. A caution is a warning by An Garda Síochána 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.
Who decides whether a child should be admitted to the programme?
In advance of admission to the programme, a Garda investigating the behaviour assesses the suitability of the young person for inclusion in the programme and prepares a report. Before the young person is considered for admission, they must admit responsibility for their criminal or anti-social behaviour and generally consent to be admitted to the programme and, if necessary, being supervised by JLO.
It’s important to note, the final decision as to whether or not a young person is cautioned lies not with the referring Garda but with the Director of the Diversion Programme.
In making their decision, the Director may consider:
- The nature of the offence
- The views of the victim
- The interests of society
- The views of the arresting Garda
- The views of the JLO
- The attitude and views of the young person who offended
- The views of the young person’s parents or guardians
- Whether an apology has been made
- Whether or not something can be done to repair any harm caused
- The child’s previous involvement in the programme
If a child is not admitted to the programme, they may be prosecuted in the normal manner for their behaviour.
What happens once it is decided to admit a child to the programme?
The Director is obliged to direct a JLO to give notice in writing to the parents or guardians of a child who is admitted to the programme. This notice includes the type of criminal or anti-social 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 guardians. The notice shall also be available in Irish for children from Gaeltacht areas or whose first language is Irish.
Is there any protection for children participating in the programme?
Any child who has been admitted to the Diversion Programme is protected from:
- prosecution for the criminal behaviour, or
- an application for an anti-social behaviour order in respect of the anti-social behaviour,
which resulted in their admission to the programme.
Any acceptance by the child of responsibility for their 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 unless the child is convicted for behaviour which occurred after their 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.
Are there different types of caution?
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 generally depend on the seriousness of the child’s criminal behaviour.
Formal cautions are more serious than informal cautions.
If a child has previously been formally cautioned, it is not open to informally caution the child on a later occasion.
How is a formal caution delivered?
The formal caution is given by a JLO, a Garda inspector or a more senior officer. Those present when the caution is delivered must include the child, the child’s parents or guardians and a JLO (if the JLO is not administering the caution). 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 behaviour and highlights to the child the seriousness of their actions. The child may be invited to apologise to the victim and where appropriate to make financial or other amends to the victim. The formal caution normally takes place in a Garda station to highlight the seriousness of the situation to the child.
How is an informal caution delivered?
Who decides on the level of supervision?
Every child who receives a formal caution through the Garda Diversion Programme is placed under the supervision of a JLO for twelve months. This can be varied in certain circumstances.
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 guardians
- Likelihood of the child committing further offences
- Directions from the Director regarding the appropriate level of supervision
Generally, a child who receives an informal caution is not normally placed under the supervision of a JLO. However, in exceptional circumstances, the recipient of an informal caution can be placed under the supervision of a JLO for six months.
What does the supervision involve?
What is a Diversion Programme Conference?
A key part of the 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 their interests.
- Establishing why the child became involved in the behaviour that gave rise to their admission to the programme
- Discussing how the parents/guardians, family members, relatives or other people could help prevent the child from becoming involved in further such behaviour
- Where appropriate, reviewing the child’s behaviour since their admission to the programme
Who decides to convene the conference?
The decision to hold a conference lies with the Director of the Diversion Programme. Before the Director makes a decision, the Juvenile Liaison Officer appointed to supervise a child under the programme recommends in writing that a conference is held. The child’s parents/guardians must agree to the conference before it can be held. The consent of the child is not required but their 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.
Who attends the conference?
The child, their parents/guardians and a facilitator must 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 Tusla, 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.
What does the conference consider?
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, unless the facilitator believes a person’s refusal to consent is unreasonable. An action plan is not a compulsory function of the conference but it is a normal outcome of the conference.
What does the action plan cover?
Some of the items an action plan may cover include:
- An apology (verbally or in writing or both) by the child to the victim
- Financial or other reparation to any victim
- Participation by the child in a suitable sporting or recreational activity
- Attendance by the child at school or a place of work
- Participation by the child in a suitable training, educational course or a programme that does not interfere with any work or school schedule of the child
- The child being at home at certain times
- The child staying away from specific places or people (or both)
- Initiatives within the child’s family and community that might help to prevent the child committing further offences or anti-social behaviour
- Any other matter (which in the opinion of those present at the conference) would be in the child’s best interests or would make the child more aware of the consequences of their behaviour.
Once an action plan is agreed, the plan comes into operation on the date on which it is signed by the 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 Diversion Programme. The Director then decides whether it is necessary to vary any period of supervision.