Diversion from criminal proceedings : Response of the Public Prosecution for Northern Ireland – September 2007
1. Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution?
Has the situation changed during the last two years or is a change envisaged?
In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006?
Amongst those, what is the proportion of alternative to prosecution responses?
Whenever a criminal offence occurs in Northern Ireland, the Police Service of Northern Ireland investigate the case and then forward a file on the incident to the Public Prosecution Service (PPS). The PPS will consider whether the case is suitable for prosecution or not. In order to make this decision the PPS use their established prosecution test. Prosecutions are initiated or continued by the PPS only where it is satisfied that the test for prosecution is met. The test for prosecution is met if:
(i) the evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction (-the Evidential Test); and
(ii) prosecution is required in the public interest (-the Public Interest Test).
Each aspect of the test must be separately considered and passed before a decision to prosecute can be taken.
The Evidential Test must be passed before the Public Interest Test is considered.
Northern Ireland is a Common Law jurisdiction. It is not the rule that all offences for which there is sufficient evidence must be prosecuted - prosecutors must exercise their discretion as to whether a prosecution is required in the public interest. Prosecutors should positively consider the appropriateness of a diversionary option (particularly if the defendant is a youth) when considering where the public interest lies. Whether diversion is appropriate will depend on the seriousness and circumstances of the offence and the offender in each case.
This situation has not changed within the last two years nor is a change envisaged at present.
Statistical information is limited by the fact that the PPS came into existence in June 2005 and its functions have been rolled out across Northern Ireland in a staged manner since that date. However in one Region (Belfast) where the PPS is fully established the available figures indicate that in the cases where a Public Prosecutor concluded that the test for prosecution was met 22.4% of cases were subject to diversionary measures and the remaining 77.6% went to court for trial.
References in the answers below to ‘indictable’ cases refer to the more serious offences which are heard in the Crown Court in Northern Ireland before a judge and jury. More minor offences, generally referred to as ‘summary’ cases, are dealt with by a legally qualified Resident Magistrate sitting alone in a Magistrate’s Court or in the case of offenders under 18 sitting with Lay Magistrates in a Youth Court.
2. In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which.
Is that choice definitive or can it be challenged?
A Public Prosecutor will decide on every file which is submitted to the PPS whether it is appropriate to prosecute for a certain offence, offer a diversionary measure as an alternative to prosecution, or not prosecute, depending on the outcome of the prosecution test.
The diversionary options available in Northern Ireland are:
(i) Informed Warning: In this case the charge is read to the offender and he is warned about his future behaviour. An Informed Warning is a formal reprimand by Police, and although not a conviction, is recorded on a person’s criminal record for a period of 12 months.
(ii) Caution: In this case a warning is administered in a formal context by a trained facilitator who may or may not be a police officer. However if it is not a police officer, a police officer must also be present. In the case of a Youth, the aim of the caution is restorative and to provide an opportunity for the offender to meet the actual victim (who will have been invited) and affected members of the community. Cautions for youth offenders are referred to as ‘restorative cautions.’ A Caution is a formal reprimand by police, and although not a conviction, is recorded on a person’s criminal record for a period of 30 months (2½ years) for youths and 5 years for adults.
(iii) Youth Conference: (available (since December 2003) for under 18s only). This is a restorative conference facilitated by a Youth Justice Agency coordinator (trained and qualified in the restorative process). At the conference, a police officer also trained in restorative practices, attends along with the offender, his legal representative if he wishes, and in some cases the victim. At the conference, the offender is given the opportunity to discuss the offence and what he/she is prepared to do to repair the harm caused to the victim (called an action plan). The victim is given the opportunity to tell the offender of the impact the offence has had and what they feel should be done to repair the harm. This may for example include an apology, reparation to the victim or community, participation in activities to address offending behaviour, treatment for alcohol and drug dependency. This plan must be agreed by the prosecutor. If at any stage the offender fails to co-operate or to fulfil his responsibilities subsequent to the conference, then criminal proceedings can be commenced. A Youth Conference is a formal process and, although not a conviction, is recorded on a person’s criminal record for a period of 30 months (2 ½ years).
Diversion can only be directed if an offender admits the offence.
If a Public Prosecutor considers it appropriate to offer diversion as an alternative to prosecution in a particular case, the offender will be made aware that he/she is being given this opportunity as an alternative to prosecution. The offender’s informed consent is vital for diversion to proceed. If the recommended diversion is not accepted by the offender or if the offender fails to participate as necessary to complete the diversion, the matter will be returned to a Public Prosecutor to reconsider prosecution.
The Prosecution decision is one for the Public Prosecutor in each case, however an offender, a victim, or police may ask for a prosecution decision to be reviewed.
If no additional evidence or information is provided in or connected with the request to review the original decision, the case will be considered by a Public Prosecutor other than the Public Prosecutor who initially took the decision now under review. This new Public Prosecutor will consider all evidence and information on the file, together with the decision which has been reached. If this Public Prosecutor concludes that the original decision was within the range of decisions that a reasonable prosecutor could take in all the circumstances, then the initial decision will stand. If the original decision is not considered to be within the range of decisions that a reasonable prosecutor could take in all the circumstances then the new Public Prosecutor will apply the prosecution test and make a new decision on the file.
If there is additional evidence and information provided in connection with the request to review a prosecution decision then the case will be reconsidered in light of the new information by the original Public Prosecutor and if appropriate the prosecution decision may be changed.
If a Public Prosecutor decides it is appropriate to direct a prosecution on a particular file, the case will then progress through the courts. Upon conviction in court the Resident Magistrate (in Magistrate’s Court) or a Judge (in the Crown Court) will sentence the offender. At this stage the option of diversion by the prosecutor has gone, however the powers open to the Magistrate or Judge are wide ranging and include a number of options other than imprisonment or a fine. The sentencing Magistrate or judge has the option of absolutely or conditionally (upon condition not to reoffend within a fixed period not exceeding three years) discharging the offender if he feels it is inexpedient to inflict punishment. The sentencing Magistrate or Judge can order the offender to a ‘community order,’ as an alternative to imprisonment where he considers it appropriate. A Community Order may be any of the following:
(i) a probation order (requires the offender to be under the supervision of a probation officer for a period specified in the order of not less than six months and not more than three years);
(ii) a drug treatment and testing order;
(iii) a community service order (requires the offender to undertake unpaid work for the benefit of the community for a total period of hours not less than 40 and not more than 240);
(iv) a combination order (requiring both probation and community service);
(v) a reparation order (requires the offender to make reparation for the offence, otherwise than by the payment of compensation);
(vi) a community responsibility order (requires the offender to attend relevant instruction in citizenship for a specific number of hours);
(vii) an attendance centre order (requires the offender to attend an attendance centre for a period of hours up to a maximum of 24 hours).
Of the above community orders numbers (i) to (vi) require the offender’s consent.
Reparation orders, community responsibility orders and attendance centre orders are available for youths only. The other community orders are available for adults.
The court can also make a youth conference order which involves a similar process to the diversionary youth conference but is considered a conviction for the purpose of the offender’s criminal record.
As outlined above, the majority of these orders require the offender’s consent. Sentences imposed by the court which do not require the offender’s consent may be appealed to a higher court by the offender. If the PPS consider the sentence imposed is unduly lenient they may request the Attorney General to apply for leave to refer the sentence to the Court of Appeal (this power is only available for more serious offences). The Court of Appeal will only decide that the sentence imposed was unduly lenient if it finds that it falls outside the range of sentence that a judge, taking into consideration all the relevant factors, and having regard to sentencing guidance, could reasonably consider appropriate.
3. Who decides on this choice? What is the specific role of the prosecutor?
The Prosecution decision is made by the Public Prosecutor using the Prosecution Test as outlined above.
If the Public Prosecutor considers a case is suitable for diversion, the Public Prosecutor will direct specifically which form of diversion is to be offered.
If an Informed Warning or a Caution (known as a ‘restorative caution’ in the case of a youth) is directed, police will contact the offender directly and arrange for the administration of the Caution or Informed Warning.
If the offender refuses to accept the informed warning or caution, or fails to co-operate with police in the administration of same, the case will be returned to the PPS and prosecution will be considered.
In the case of a Youth Conference, the matter will be forwarded to the Youth Justice Agency who facilitate the Youth Conference.
At the conference, the offender is given the opportunity to discuss the offence and what he/she is prepared to do to repair the harm caused to the victim (called an action plan). The victim is given the opportunity to tell the offender of the impact the offence has had and what they feel should be done to repair the harm. This may for example include an apology, reparation to the victim or community, participation in activities to address offending behaviour, treatment for alcohol and drug dependency. This plan must be agreed by the prosecutor, and if the Public Prosecutor does not feel the plan is appropriate he may reject the plan or return the plan to the Youth Conference Agency seeking amendments. If at any stage the offender fails to co-operate or to fulfil his responsibilities subsequent to the conference, then the matter can be referred back to the PPS who will consider prosecution proceedings.
If a case is considered by the PPS as suitable for prosecution and it proceeds to court the issue of sentencing is for the presiding Magistrate or Judge, the PPS have no role in sentencing other than to ensure that the correct facts are before the court.
4. Are there criteria for abandoning the criminal prosecution approach?
When considering the appropriateness of diversion, each case is assessed on its individual merits. Whether diversion is appropriate will depend on the seriousness and circumstances of the offence and the offender in each case.
Diversion should never be directed for the most serious offences and only in exceptional circumstances where the offence is triable on indictment before a jury in the Crown Court. Other offences, less grave in themselves, may nevertheless be too serious for diversion to be appropriate by virtue of the nature and extent of the harm or loss resulting from the offence.
Cases which attract a mandatory penalty should not normally be diverted from prosecution as it is considered appropriate by parliament that the offender incur a specific minimum punishment.
For diversion to be directed, the offender must admit the offence. The admission may be made in the course of formal police interview or at any stage up until trial. The admission may be made to police or to the prosecutor either by the offender in person or through his or her legal advisers.
A Public Prosecutor in taking a decision whether to prosecute or to offer diversion in a case should consider the nature of the offence and the attitude of both the offender and victim.
Each case must be considered individually and the Public Prosecutor will take all relevant matters into consideration and apply the PPS Guidelines for Diversion when coming to their decision. The following is an extract from the PPS Guidelines for Diversion which may be helpful in explaining how the Public Prosecutor reaches their decision in each case. It must be stressed however that these are guidelines only and each case will be decided upon depending on its own unique facts.
Factors to be considered for and against diversion
3.1 The following factors in a case should be considered by the Prosecutor in favour of Prosecution and against diversion:
(i) The seriousness of the offence ie where a conviction is likely to result in a significant penalty including any confiscation order or disqualification;
(ii) Where the offender was in a position of authority or trust and the offence is an abuse of that position;
(iii) Where the offender was a ring-leader or an organiser of the offence;
(iv) Where the offence was pre-meditated;
(v) Where the offence was carried out by a group;
(vi) Where the offence was carried out pursuant to a plan in pursuit of organised crime;
(vii) Where the offence was motivated by hostility against a person because of their race, ethnicity, sexual orientation, disability, religion, political beliefs, age or the like;
(viii) Where the offence is prevalent;
(ix) Where the offence has resulted in serious financial loss to the individual, corporate person or society;
(x) Where the offence was committed against a person serving the public, for example a doctor, nurse, member of the ambulance service, member of the fire service or a member of the police service;
(xi) Where the victim of the offence, or their family has been put in fear or suffered personal attack, damage or disturbance. The more vulnerable the victim the greater the aggravation.
(xii) Where there is a marked difference between the actual or mental ages of the offender and the victim and the offender took advantage of this;
(xiii) Where there is any element of corruption.
(xiv) Where the offender has previous convictions or diversionary disposals which are relevant;
(xv) Where the offender is alleged to have committed the offence whilst on bail, on probation, or subject to a suspended sentence or an order binding the offender to keep the peace or released on licence from a prison or a place of detention or otherwise subject to a court order;
(xvi) Where there are grounds for believing that the offence is likely to be continued or repeated, for example where there is a history of recurring conduct.
3.2 The following factors should be considered by the Prosecutor in favour of diversion and against Prosecution:
(i) Where the court is likely to impose a very small or nominal penalty;
(ii) Where the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by an error of judgment or a genuine mistake;
(iii) Where the offence is not of a serious nature and is unlikely to be repeated;
(iv) Where there has been a long passage of time between an offence taking place and the likely date of trial unless:
Ø the offence is serious;
Ø delay has been caused in part by the offender;
Ø the offence has only recently come to light; or
Ø the complexity of the offence has resulted in a lengthy investigation.
(v) Where prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness, particularly where they have been put in fear;
(vi) Where the offender is young or elderly;
(vii) Where the offender was at the time of the offence or trial suffering from significant mental or physical ill health;
(viii) Where the offender has put right the loss or harm that was caused (although offenders must not be able to avoid prosecution simply because they pay compensation);
3.3 Deciding on where the public interest lies in a particular case is not simply a matter of adding up the number of factors on each side. It is a matter of judgment. In making that judgment prosecutors must decide the weight to be attached to each factor in the circumstances of each case and go on to make an overall assessment. Assessment of the public interest will often involve the consideration of competing interests. Although there may be some public interest factors against prosecution and in favour of diversion in a particular case, sometimes the overall balance is that the prosecution should go ahead and those matters should be put to the Court by the defence in mitigation when sentence is being considered.
Diversion is an alternative to prosecution, and as outlined at no. 3 above, if at any stage before completion of the diversion process, the offender fails to co-operate, the matter will be referred back to the PPS to consider prosecution.
5. Could it happen that a serious offence escapes any prosecution because of alternative measures?
As outlined above, diversion should never be directed for the most serious offences and only in exceptional circumstances where the offence is triable only on indictment before a jury in the Crown Court.
6. Are victims informed beforehand, consulted, and how can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?
A Public Prosecutor directing on a case will consider the nature of the offence and the attitude of both the offender and the victim. Any interference with victims/witnesses would normally preclude diversion. Although the victim’s attitude will be considered, the victim’s consent is not necessary and the decision whether to offer diversionary disposal remains one for the Public Prosecutor. Notification of the Prosecution decision is sent to the victim as soon as the decision is made. At this time the defendant will also receive notification of the decision.
The victim (or offender or police) may ask the PPS to review the prosecution decision and the procedure outlined at no. 2 above will be followed.
7. Given that the response chosen gives rise to obligations in respect of the persons subjected to it - such as the reparation of damage - are they able to lodge an appeal with an impartial authority (for example, for validation by a Judge of a restraining Order or an obligation to undergo training proposed by way of settlement?
In Northern Ireland, only sentences handed down by the court can impose an obligation on an offender such as compensating the victim, attending probation courses.
If a case is dealt with by diversion, the only option for an adult is an informed warning or (more commonly) a caution. These diversionary measures cannot compel the offender to anything. The offender must admit the offence and accept the informed warning/caution in order for this diversion to complete, but there are no ongoing obligations.
In the case of a youth there is also the possibility of a youth conference. Again this diversionary measure cannot compel the youth to do anything and instead works on the principle of the youth’s consent. If a youth conference takes place, the offender together with the victim (if they choose) and the youth conference facilitator will agree a ‘Youth Conference Plan.’ The Youth Conference Plan will involve the offender agreeing to an action which all the parties consider in some way makes reparation for the offence. The plan might include the youth agreeing to (for example) attend counseling, pay compensation, do community work. The vital element of the youth conference plan is the youth’s agreement throughout the process. If the youth withdraws their consent or refuses to cooperate at any stage before the plan is completed, then the case will be referred back to the PPS to consider Prosecution.
8. Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victim’s interests?
Introduced as part of the Justice (Northern Ireland) Act 2002, the Northern Ireland Youth Conferencing Service was launched in December 2003 and has now rolled out throughout the province. The Youth Conference Scheme provides a third type of diversion for young people in Northern Ireland. Youth Conferencing seeks not only to encourage young people to recognise the effects of their crime and take responsibility for their actions, but also to devolve power by actively engaging the victim, offender and community in the restorative process.
As the Youth Conference Scheme is still a relatively new process statistics concerning its success based on re-offending patterns are not yet available, however an extensive evaluation of the scheme was carried out and the results published in October 2005. This evaluation showed the youth conference scheme to be working very positively. The following comments are taken from the evaluation document:
- youth conferencing seeks not only to encourage young people to recognise the effects of their crime and take responsibility for their actions, but also to devolve power by actively engaging victim, offender and community in the restorative process
- victim participation in conferences was high at 69%
- both victims and young people rated their preparation prior to the conference highly
- young people attended conferences to ‘make up for what I had done’ (85%), to be forgiven by the victim (79%) and to both help the victim (70%) and hear what they had to say (70%)
- for victims, the notion of punishment was secondary to meeting the young person and receiving an explanation for their actions. A significant number of victims (79%) attended because they wanted to help the young person
- in the majority (87%) of conferences, the young person apologised or agreed to apologise. The majority of conferences without an apology involved a victim representative and not a personal victim. Young people were observed to display some level of shame (77%) and remorse (92%) in most conferences.
- Both young people (93%) and victims (79%) believed the plan to be either ‘fair’ or ‘very fair.’ Similarly 71% of young people and 79% of victims were ‘very satisfied’ or ‘very satisfied’ with the plan
- 92% of young people and 78% of victims believed the conference had helped the young person realize the harm caused by the offence
- of the family members who provided their views on the conference process, the majority welcomed the opportunity to attend and believed the conference to have a positive impact on the young person
- the majority of victims were satisfied with the conference and 92% perceived the process as either ‘very fair’ or ‘fair.’ Similarly most victims felt that there views had been taken seriously and reported a series of positive feelings immediately after the conference
- 81% of victims preferred the conference over court and most willing to recommend a conference to a victim in a similar situation
- in the literature, positive victim experiences have been related to a number of factors including the chance to explain the impact of the crime, receiving an apology, or understanding why the offence occurred. Therefore, the fact that all victims believed that the conference provided an opportunity to explain the effect of the crime and the majority of young people either apologised to the victim or displayed a degree of remorse, may have contributed to the overall positive results from victims participating in the conference process
- the process itself may be seen to have inherent value, given the high rates of satisfaction and perceptions of fairness by victims and young people
9. Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?
See the answer at no. 8 above in relation to youth conferencing.
10. Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?
Briege Robinson
Senior Public Prosecutor
Policy Section
PPS
Email: [email protected]
11. Other comments?