Youth Crime briefing - Nacro

YOUTH CRIME BRIEFINGWidening diversionary options andincreasing flexibilityThe legal framework for reprimands and finalwarnings has not been altered and the generalprinciples applying to decision making remainessentially the same. However, the circular doesemphasise some aspects and changes the guidance ondecision making to an extent. The net effect of thecircular is potentially to increase the rate of diversionoverall, reduce first time entrants to the system andimprove regional consistency.The circular restates the original aim of the finalwarning scheme, which is to divert children andyoung people from offending behaviour before theyenter the court system, and stresses that this meansthat where possible they should be warned, as opposedto prosecuted. It is apparent that in improvingconsistency, the intention is that those police forceareas with low diversion rates should review policyand practice to bring themselves more into line withthose with higher rates.Anti-social behaviour ordersThe use of anti-social behaviour orders has continuedto increase for children and young people and courtproceedings for breach of orders has become a matterof concern, particularly with a significant proportionof these being sent to custody. 15 What is not clear ishow many breaches of anti-social behaviour ordersare dealt with by way of reprimands or final warnings.The circular states that breaches of anti-socialbehaviour orders should be dealt with in line withnormal procedures for dealing with children andyoung people. Thus, in consultation with the youthoffending team and, as appropriate, the CPS, fullconsideration should be given to dealing with thebreach (if clearly admitted etc) by way of a warning,or even a reprimand, according to the nature of thebreach or unusual circumstances. If the breach isflagrant the circular suggests that prosecution wouldbe the normal response.Unfortunately, the new revised Home Office guidanceon anti-social behaviour orders 16 does not mention ofdiversion from court as an option in the sectionrelating to breaches, leaving the potential for currentpractice, favouring immediate charge, to continue. Onthe other hand, the guidance on strategicarrangements does note that breach may be dealt withby way of a final warning. In addition, the guidance toyouth offending teams on anti-social behaviour 17contains a reminder that a final warning can beconsidered:Taking into account the age group, breach can be dealtwith by a Final Warning with intervention where thebreach is the young person’s first criminal offence.However, in instances where a young person has had aprevious Final Warning (for other offences) or previouscriminal convictions, the breach should be prosecuted.There is some incongruency in interpreting thesevarious sources of guidance, not least when takingaccount of the new performance measure for Yotsregarding interventions with a final warning accordingto Asset scores or risk of serious harm to the public.In view of this shift in practice towards consideringbreaches of orders as suitable for being dealt with outof court, it may be necessary for local partneragencies to review local procedures, protocols,training and expectations. In addition, there may be asignificant number of breach proceedings that arebegun in court that might be suitable fordiscontinuance in favour of a pre-court intervention.Cases with a previous absolute orconditional dischargeIt has not been wholly recognised that a person mayreceive a reprimand or final warning even afterprevious findings of guilt in a court if that findingresulted in an absolute discharge or a conditionaldischarge. The circular gives a reminder that awarning is a valid option in these circumstances.A reprimand or final warning is available under theCrime and Disorder Act 1998 where, inter alia, theoffender has not been previously convicted of anoffence. 18However, absolute and conditional discharges are notviewed as convictions. This is according to s.14(1)Powers of Criminal Courts (Sentencing) Act 2000,which states that … a conviction of an offence forwhich an order is made … discharging the offenderabsolutely or conditionally shall be deemed not to be aconviction for any purpose other than the purposes ofthe proceedings in which the order is made … . 19There is thus a somewhat anomalous relationshipbetween the final warning and conditional dischargein that a conditional discharge cannot be made withintwo years of a person receiving a final warning(except in exceptional circumstances) while theconverse does not apply. In addition, although thepotential to use pre-court options following aprevious discharge would seem to allow significantimpact to be made on increasing diversion options,this may be moderate in scale. There has been anincrease in the use of absolute discharges in recentyears, seemingly because this is the only low leveldisposal that can be used instead of a referral order.Such cases are normally associated with a very minoroffence for which a referral order may be viewed asdisproportionate. Cases where a conditional dischargeis made on a first court appearance has beenrestricted to those where a referral order has not beenavailable due to conviction following a plea of notguilty. More recently, however, courts have had thediscretion to make an order other than a referralorder for non-imprisonable offences 20 , thus increasingthe potential for a discharge on first conviction.There is a case for consideration of some minoramendments to statute to help to iron out some of theapparent anomalies in this context. The previousNacro Briefing 21 on maximising diversion made a casefor allowing diversion at any stage, even after morethan one previous conviction if that were appropriatepage