Restorative Cautioning/Diversion by Police

Formal warnings to offenders with restorative conditions imposed

Hinchey, John. The Canberra Restorative Justice Model: from pre-court diversion to parole

The Australian Capital Territory is a self governing territory of Australia, situated in Canberra. In the restorative justice world Canberra is known for its pre-court diversion program - the subject of the RISE research conducted by Braithwaite, Strang and others. In 2004, Canberra has chosen to go the Full Monty and extend its pre-court program by making restorative justice available at every stage of the criminal justice process, in both the children and adult jurisdictions. The paper and presentation are descriptive, canvassing the legislative and administrative framework chosen to support the model. Pre-court diversion still remains an option for less serious crime and court based and post sentence options are available for all offences that proceed through to court. In the Canberra model a central unit ensures consistency of practice and by including police personnel, allows police to continue their role in diversionary conferencing. The Ngambra Court - or circle sentencing court - has also been established for indigenous offenders. The legislative victim-centric solutions chosen to support the model are discussed. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

Home Office. Chapter 5: Restorative Justice Operational Considerations (Conditional Cautioning - RJ Guidance to Early Implementation Areas)

A Conditional Caution is a new way of dealing with certain criminal offences and involves an offender agreeing to comply with conditions to avoid being prosecuted. Restorative Justice can be used as part of the Conditional Cautioning process, either as a condition of the offender's caution, or as the means by which the victim and offender propose the conditions that could be attached to the Conditional Caution. Two of the Conditional Cautioning early implementation areas will be using RJ (West Mercia and Thames Valley). The evaluation of all the early implementation areas will allow us to compare the effectiveness of RJ conditional cautions and non-RJ conditional cautions, in terms of victim satisfaction, offender compliance with conditions, and re-offending rates. The experience of the early implementation areas will be used to refine the guidance before wider roll out. The RJ Operational Considerations have been developed to guide forces in the early implementation areas when using RJ and should only be used in the in the early implementation areas for Conditional Cautioning. They are part of a wider set of operational considerations for the early implementation areas (that includes information for all the organisations involved in the scheme) and should be read alongside Code of Practice for Conditional Cautioning and the Director's Guidance on Conditional Cautioning : Guidance to police officers and Crown Prosecutors issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984.

Criminal Justice System (England). Conditional Cautioning: Criminal Justice Act 2003, Sections 22-27. Code of Practice & associated annexes

Conditional Cautioning enables offenders to be given a suitable disposal without the involvement of the usual court processes. Where rehabilitative or reparative conditions (or both) are considered preferable to prosecution, Conditional Cautioning provides a statutory means of enforcing them through prosecution for the original offence in the event of non-compliance. The key to determining whether a Conditional Caution should be given – instead of prosecution or a simple caution – is that the imposition of specified conditions will be an appropriate and effective means of addressing an offender’s behaviour or making reparation for the effects of the offence on the victim or the community. (excerpt)

Goold, Benjamin. Restorative Cautioning, Theories of Reintegration, and the Influence of Japanese Notions of Shame

Certainly one of the most significant developments in the treatment of young offenders in Britain over the past decade has been the move away from punitive forms of cautioning towards a new type of informal disposal known as "restorative cautioning". Although there is now a considerable body of academic and professional literature that examines the theory and practice of restorative cautioning, recently little has been written about the intellectual and cultural origins of this new approach to punishment and dispute resolution. This article explains some of the central notions of restorative justice, drawing particular attention to the influence of Japanese notions of shame and community on cautioning practices in Britain and elsewhere. (excerpt)

Quinn, Katie and Jackson, John. Police Interviews with Young Suspects in Northern Ireland.

The increasing use of diversion and the growing interest in restorative justice as a means of dealing with youth offending has tended to deflect attention away from the police interview which many young persons must endure before diversionary practices take effect.1 Although there are clearly benefits to diversion, the effect of these practices is that the police interview becomes the only forum for examining the evidence against young suspects who go on to admit their guilt in return for diversionary disposal (Pratt 1986; Evans 1993). Yet, there is a large literature which illustrates that the police interview is not a disinterested search for the truth, in which the police exercise their inquisitorial powers to gather information from the suspect with information flowing in a unidirectional manner from suspect to officer (see, e.g. McConville et al. 1991: 78–79 and Baldwin 1993). Instead, the facts generated during interrogation are the product of a complex process of interaction between the suspect and the officer in which proof is constructed out of the suspect’s own words. (excerpt)

Wilcox, Aidan and Young, Richard. How Green was Thames Valley?: Policing the Image of Restorative Justice Cautions.

In 1994, Thames Valley Police (in the UK) began experimenting with restorative justice cautioning, in the Milton Keynes area. Other pilot programmes (most notably in Aylesbury) soon followed. The initiative was enthusiastically promoted by the then Chief Constable of Thames Valley Police, Sir Charles Pollard. One of his central claims was that re-offending rates had declined from 30% to 4% in Aylesbury as a result of restorative cautioning. This remarkable claim was instrumental in persuading key individuals, both within and outside Thames Valley Police, that greater use should be made of restorative methods within criminal justice. This paper subjects that claim to empirical scrutiny (and finds it baseless) as well as exploring what this episode reveals about the nature of relations between the police and the media. (author's abstract).

Hoyle, Carolyn. Securing Restorative Justice for the 'Non-Participating' Victim

From having little role in the criminal justice process, crime victims in the last twenty years have moved into an integral role in that process. The rise of restorative justice during the same period has helped to shape this change, and restorative justice has the potential to refocus the criminal process with the victim at center stage with the offender. However, this is not a simple matter. Complexities inhere in attempting to integrate victims in the criminal process, and various critiques have highlighted the issues. In this context, and with particular attention to restorative cautioning schemes, Carolyn Hoyle considers the difficulties in realizing the potential of restorative justice with respect to victim integration and satisfaction in the criminal process. Viewing participation in the restorative cautioning process as a continuum rather than as a dichotomous choice of participation or non-participation, she discusses attempts to integrate victims into the process, the promise of restorative justice, and challenges posed by victims who choose not to meet their offenders.

Daly, Kathleen. Diversionary Conferences in Australia: A Reply to the Optimists and the Skeptics

Conferencing is probably a good idea. However, it is not as trouble-free as optimists argue nor as dreadful as skeptics fear. On items I can compare, my findings from a small set of cases in two jurisdictions in Australia are strikingly similar to Maxwell and Morris' (1993) major study of conferencing in New Zealand. (author's abstract)

Richards, Kelly. Police-referred restorative justice for juveniles in Australia

During the 1990s, restorative justice became firmly established as a new approach for responding to juvenile crime. Restorative justice measures are most commonly used to divert juvenile offenders from the formal criminal justice system, although they also exist in a variety of other contexts across Australia’s jurisdictions, such as in circle sentencing and victim-offender mediation programs for adult offenders (Daly & Proietti-Scifoni 2009). Although there are many definitions of restorative justice, the following definition by Marshall (1996: 37) has gained widespread acceptance: ‘[restorative justice is] a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’. While the rationale for restorative justice programs varies among Australian jurisdictions, in general, restorative justice measures seek to repair the harm caused by crime, to actively involve offenders, victims and communities in the criminal justice process and to provide a constructive intervention for juvenile offending. This paper provides an overview of the legislative and policy context of restorative justice practices for juveniles in each Australian state and territory. It also outlines recent data that indicate the numbers and characteristics of juveniles referred to restorative justice programs by police and the offences for which they are referred, where these data are available. This paper is exploratory in nature and aims to identify future research issues relating to restorative justice for juveniles in Australia. (excerpt)

Wachtel, Joshua. Restorative Community Policing in the UK: Dorset, Cheshire and Norfolk Constables Point the Way.

Police in roughly 50 percent of counties in England and Wales employ some form of restorative justice (RJ). Constables in districts including Dorset (southwest), Cheshire and Lancashire (northwest), Hull (northeast) and Norfolk (east) are actively making restorative practices (RP) their first line of defense — at officers’ discretion — for dealing with neighborhood disputes, first-time and low-level youth offenders, youth crime in schools, and some adult cases. (excerpt)

Cunningham, Teresa. Pre-court diversion in the Northern Territory: impact on juvenile reoffending.

A juvenile pre-court diversion scheme was introduced in the Northern Territory in 2000. Administered by police, it uses warnings and conferences to divert selected juveniles from the court process. This paper reports on an analysis of Northern Territory police records on 3,597 apprehended juveniles over a 5 year period. Findings showed that the great majority of juveniles (76%) did not reoffend within the first year after their initial diversion or court appearance. However, there were significant differences between juveniles who attended court and those who were diverted, both in terms of risk of reoffending and time to reoffending. Those who were diverted reoffended less than those who attended court and those who went to court reoffended more quickly. Property offenders who attended court were 30 percent more at risk of reoffending than violent offenders. Further work is required to see if the different effects for court versus diversion remain if prior offending history is taken into account. The significant differences in offending related to age, gender, Indigenous status and location confirm the need for specific responses to particular groups of juveniles. (author's abstract)

Smith, Roger and Hinks, Nigel. "Diversion in Practice: Northants Juvenile Liaison Bureaux"

Northamptonshire’s progressive work in juvenile justice has attracted national attention, and some misunderstanding. The authors describe their bureau approach to cautioning, seeking to avoid precipitous court appearances without falling into the traps of injustice, net-widening, excessive executive power or collusion with the police.

Kakar, Suman and Potter, Roberto Hugh. "Diversion Decision-Making Process From the Juvenile Court Practitioners' Perspective: Results of a Survey"

This research examined the reported effect of legal and nonlegal factors on those who actually make decisions about juvenile diversion. Previous researchers have analyzed the outcomes of recorded decisions made in the official justice process,with special attention paid to the effects of legal and extralegal variables on juvenile diversion decisions. However,little attention has been given to howthe key players explain the influence of these factors on decision-making processes in the juvenile justice system. These actors—court-designated workers,county-appointed attorneys,and police administrators—significantly affect the outcomes of the diversion decision. This research attempts to fill in gaps left by earlier research between howthe process is supposed towork in legislation and previously observed differences with regard to the effect of legal and extralegal factors on recorded outcomes. It is suggested that process-related factors should be examined to strengthen the understanding of how diversion decision making is achieved. These results are particularly significant in a time of increasing calls for get-tough and zero-tolerance policies with regard to even minor juvenile infractions.

Wing Lo, T and Wong, Dennis and Maxwell, Gabrielle. Diversion From Youth Courts in Five Asia Pacific Jurisdictions: Welfare or Restorative Solutions

This article examines how juvenile offenders are diverted from prosecution in juvenile courts in five Asia Pacific jurisdictions: Queensland, Australia; New Zealand; Hong Kong; Singapore; and China. In all of these jurisdictions, there has been a trend away from punitive and retributive approaches to the diversion of juvenile offenders from prosecution in a court to the community-based welfare model and the restorative model. The community-based welfare model relies primarily on counseling, community support, and educational assistance and is usually led by professionals. This model tends to categorize juvenile offenders as having problem behaviors and emotional conditions that require treatment and supervision. The restorative model emphasizes the accountability of juvenile offenders for the harms their behavior caused and uses negotiation among the youth, their victims, and the youth's family to develop measures for repairing the harm done and addressing the youth's behaviors that caused the harm. This model limits the involvement of professionals in decisionmaking about the disposition of the case. New Zealand and Queensland use the restorative model. Criticisms of this model have included the lack of due process and protections for the rights of offenders, as well as the potential for undue influence by the police. Hong Kong and Singapore have adopted a traditional rehabilitation and welfare orientation whereby police divert juveniles from the courts through police cautions and referrals to community support and guidance services operated by social workers. In China, community-based practices such as police cautions, mediation, and educational assistance are used in diverting youth from court-based processing. Community-based sanctions are particularly susceptible to the influence of personal power and persuasion, and outcomes may favor those who have close affiliations with or hold powerful positions in the government. Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov.

Leschied, Alan W. and Cunningham, Alison. Review of pre-court youth diversion program--Halton Regional Police Service

With the assistance of eleven community agencies, the Youth Offender Diversion Project of the Halton Regional Police Service (Ontario, Canada) was initiated in 1997 to take a proactive stance to stem an increase in youth crime. The goals are to reduce recidivism among youth offenders through interventions aimed at lessening risk factors; increase victim’s satisfaction with the justice process; increase the offender’s sense of community belonging; and reduce costs associated with the prosecution of offenses. The London (Ontario) Family Court Clinic was contracted to evaluate the project. This report on the youth diversion project presents that evaluation through the following: a review of data on 77 cases processed through the program; a review of user satisfaction responses; categorization of the program with respect to restorative justice; and recommendations about future program refinements and directions.

Doak, Jonathan and Chapman, Tim and O'Mahony, David. Restorative cautioning: A study of police based restorative cautioning pilots in Northern Ireland

This report describes a study of two pilot restorative cautioning schemes run by police in Ballymena and in Mountpottinger, Belfast, Northern Ireland. The study covers a period from mid 1999 to mid 2001. At the time covered by the study, the police were using two types of restorative approaches to deal with offending juveniles. One, called a restorative conference, directly involved the victim. The other, called a restorative cautioning, did not directly involve the victim. Currently, whether or not the victim is directly involved, the police do not distinguish these practices but refer only to “restorative cautioning.â€? The schemes in Ballymena and Mountpottinger differed in this respect: the scheme in Ballymena dealt mostly with shoplifting cases, whereas the scheme in Mountpottinger was an alternative for cases deemed suitable for formal cautioning. In their report, the authors review research and literature on restorative justice and police-led restorative schemes. They also review previous Juvenile Liaison referrals and outcomes. This leads to evaluation of the impact of restorative sessions on all participants prior to the actual research period, and evaluation of restorative sessions observed during the research period. The authors conclude their report with a summary of their main findings, a bibliography, and a list of other relevant publications.

Hoyle, Carolyn and Hill, Roderick and Young, Richard. Proceed with caution: An evaluation of the Thames Valley Police initiative in restorative cautioning

This document reports the main findings of a research evaluation of the Thames Valley Police model of restorative cautioning. The Thames Valley Police model of restorative cautioning involves a police officer inviting all those affected by an offense to a session to engage in a structured dialogue about the offense and its ramifications. With the officer as facilitator, the session is conducted according to a "script," an order for explanatory statements, questions, and prompts. Scripted conferences constitute one type of practice being applied within the framework of restorative justice. Through their research, the authors sought a qualitative evaluation of the Thames Valley Police cautioning initiative -- what did participants think of the process? In this report on their findings, including a case study used as an example, they discuss the following areas: the improvement of restorative cautioning through research; procedural fairness; participant's views on the achievements of the restorative session; long term aims of cautioning for victims and offenders; and the place of restorative justice in the criminal justice system. Appendices to the report include a sample interview schedule, the self-reporting instrument, and results from and reliability of the self-reporting instrument.

Bertrand, Lorne D and Knoll, Patrick J. and Caputo, Tullio and Hornick, Joseph P and Hastings, Ross. A police reference manual on crime prevention and diversion with youth.

This manual is intended for front-line police officers and senior police managers. The focus is on youth because the majority of persistent adult offenders begin committing offences as youth. The aim is to assist police in taking proactive approaches to prevent and respond to youth crime. Some sections of the manual deal more with conceptual and policy issues that may be of more interest to police managers. Other sections deal more with practical issues concerning the role of the front-line officer in crime prevention and diversion. The manual begins with an introduction treating the need for prevention strategy, the purpose of the manual, challenges for police agencies, the emerging role of front-line officers, and the themes and organization of the manual. Subsequent chapters cover the following subjects: understanding youth crime; the legal basis for the use of police discretion and diversion; a conceptual framework for crime prevention; models of diversion in other countries; a conceptual framework for diversion; police involvement in crime prevention and diversion programs with youth; and police involvement in tertiary crime prevention (prevention focusing on youth who have already committed a crime). A bibliography and an appendix (identifying selected resources and materials) complete the manual

Anderson, Tracy and Robertson, Jeremy and Maxwell, Gabrielle. Police youth diversion. Final report.

A prominent feature of the New Zealand youth justice system is the use of diversionary procedures. This report presents research into decisions taken by police in determining how to respond to youth offending – in particular, decisions with respect to diversionary plans (sometimes known as informal sanctions or alternative actions). Collected from forms filled out by Youth Aid officers from August 2000 to May 2001 (see one of the appendices for the form), the research data came from a representative number of areas in New Zealand. Data included the characteristics of the offenders, the nature of their offending, details of their background and history of involvement with police and social services, and the nature of the responses made to their offending. Numerous statistical tables and charts throughout the report assist with classification and analysis of relevant data. One of the purposes of the research and report was to identify best practices for police in responding to youth offending; the authors summarize those best practices near the end of the report.

Veevers, J. "Pre-Court Diversion for Juvenile Offenders."

This chapter discusses the city of Exeter, Devon's structured system of cautioning under the 1969 Children and Young Persons Act. In 1979, Youth Support Teams were formed with police, social workers, and probation working on a full-time basis to divert juvenile offenders and coordinate local efforts in combating delinquency with community involvement. The author discusses the philosophical and theoretical basis and objectives of the program, including reparation and mediation. Case prerequisites for each diversion option and mediation issues and problems are discussed. The author calls for greater use of multi-agency approaches.