Diversion in Youth Justice

What Can We Learn from Historical and Contemporary Practices?

Roger Smith

• Publisher: Taylor & Francis
• Year: 2017
• Print ISBN: 9780367227647
• eBook ISBN: 9781315522234
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Diversion in youth justice is a subject of enduring interest. It concerns the processes by which decisions are made about whether or not to prosecute young offenders, and this book explores the continuing debates and historical developments which shape these processes. The treatment of young offenders is a contentious subject, and this book provides a comprehensive review of out of court decision-making in the context of wider arguments about how we should deal with the crimes of the young.

This book follows a broadly historical structure, exploring the development of ideas and approaches to agency decision-making at the point of prosecution. This leads to the identification of a number of distinctive 'models' of diversion, reflecting both specific periods of time and particular philosophies of intervention with young people in trouble with the law. Based on this classification, this book explores the implications for wider debates about childhood, crime and punishment and how these relate to theories of social control. This, in turn, leads to the conclusion that diversionary ideas and practices act as a kind of barometer for wider developments in the governance of youth.

This is one of the very few books that focuses exclusively on diversion as a feature of youth justice, and it provides a range of original and contemporary insights into this subject area which remains of considerable interest in this field, both academically and in practice. The ideas outlined here will contribute to new thinking in youth criminology, as the discipline responds to a prolonged period of apparent liberalisation in the treatment of young offenders which has yet to be fully understood or properly theorised.

Contents

Introduction

1 Theorising youth diversion

2 The origins and emergence of diversion

3 Diversion: development and doubt

4 Diversion renewed

5 Diversion, dangerousness and the ‘risky child’

6 Another ‘U’ turn?

7 Modelling diversion

8 Diversion and youth justice

References

Index

Introduction

Getting into diversion

This book is an account which draws on two interlinked journeys. One is mine, in that I have been involved professionally with youth diversion in a number of guises for over thirty years. In travelling this road, though, I have also become increasingly familiar with the path followed over a much longer period by the various practices which have fallen under the heading of youth (or juvenile) diversion, constituting the process of out of court or pre-prosecution decision-making and intervention in respect of young people who are officially identified as offenders. I hope that my own multi-faceted experience of this process and its outcomes will provide a helpful backdrop to a wider discussion of the histories, ideas and practices which it represents.

I first came into contact with diversion as a probation officer in Northamptonshire when the second of the county’s Juvenile Liaison Bureaux (JLBx) was established in the area where I worked. Along with many others in the probation service at the time, I viewed this innovation with considerable suspicion. Constituted as it was, with an apparently dominant role for the police, I did not believe that it had much chance of changing pre-court decision-making practices for young offenders; and that, if anything, the need to justify its role would lead to an expansion of unnecessary and potentially stigmatising intervention into areas of minor delinquency and nuisance (or anti-social rather than criminal behaviour). Subsequently, though, I was seconded to work in the multi-agency bureau (in 1984), and began to get a much better picture of its operation, from the inside. In fact, as the evidence has amply demonstrated over the years, the JLBx were highly effective in establishing the county as one of the leading examples of effective practice in diversion, extending the use of cautioning to displace court appearances, even in the case of offences which appeared relatively serious (including domestic burglary, robbery and knife crime, for example). At the same time, the bureaux were successful in achieving an extension of police use of informal action in respect of a wide range of offences; in introducing a variety of reparative interventions (as a pre-cursor to restorative justice); in encouraging partner agencies (in education and the youth service) not to exclude young people from mainstream services; and in maintaining a broad range of support for their work. This experience convinced me that diversion could have a part to play in a progressive youth justice system, without necessarily contributing to net-widening, or the unnecessary and harmful labelling and institutionalisation of young people with which it had previously been associated.

Subsequently, I took on a policy development role with The Children’s Society, and in this capacity continued to contribute to arguments for decarceration and less intrusive problem-solving approaches to youth offending. By this point, though, the mood was changing, and from a position of apparent strength, with the end of youth custody in sight, the reversals of the 1990s, as we shall see, had a very dramatic effect on the terrain within which I was operating. Nonetheless, I may have contributed in a small part to the thinking of the politicians and officials associated with the development of multi-agency models of intervention (Youth Offending Teams), and the formal recognition of pre-court disposals in legislation (as provided for by the Crime and Disorder Act 1998).

Later still, I moved into an academic role and in that capacity I have continued to write and research on the subject of youth diversion, providing at various points, a detailed analysis of the practice of diversion in Northamptonshire, an overview of the emergence and development of youth offending services, an account of the place played by reparation in diversionary practice, and a discussion of the experience and implications of the revival of diversion from 2007–8 onwards.

Over the period of time in which I have been involved with diversion, I have observed what appears from close at hand to be a series of quite dramatic changes in practice and underpinning rationale, linked undoubtedly to similar reversals and re-orientations within the wider field of youth justice, and this has prompted a belief that it is important to try and make sense of the dynamics and implications of these shifts, both to shed light on our wider understandings of criminal and youth justice; and also, hopefully to provide what will, in the end, be a clearer rationale and justification for the kind of progressive and socially just practice to which I aspired when I started on my own journey.

The context for this analytical project will be the rather longer journey followed by diversionary practices themselves, similarly punctuated with periods of calm progress, considered debate and review, controversy and challenge, recurrent uncertainty and rapid change. Whilst it appears that some doubters have always been with us, diversion does seem to have become established as a feature of youth justice, and it has provided the seed bed for other innovations such as the development of restorative justice in England and Wales, for example. Beginning, at least in a more or less ‘official’ sense, with the introduction of modern policing, the exercise of discretion over whether or not to bring charges against alleged young offenders has been incorporated into routine practice, becoming almost a fait accompli of policing practice. At the same time, however, as we shall see, it is a form of practice which arouses strong opposition and controversy, especially concerning its extra-judicial and discretionary character. There is something apparently questionable about the agglomeration of powers to one agency to determine whether or not to arrest, process and then prosecute (or report for prosecution) young offenders, and thus the extent of police powers in these matters has come into question. Is their use of wide-ranging powers sufficiently fair, proportionate and free from arbitrary and discriminatory judgement? Does this prevent proper exercise of due process and scrutiny of the evidence and levels of responsibility of the perpetrator? And, how are other interests (such as those of victims) to be protected in the context of the unaccountable exercise of discretionary powers? How are the rights of children and families to be protected from excessive demands in the name of informal justice? And, on the other hand, does ‘letting off’ young offenders too readily bring the justice system into disrepute? Does diversion, in fact, encourage crime? Do localised models of informal decision-making lead to unacceptable geographical variations?

All these key questions, and more, have featured consistently throughout the history of youth diversion, certainly, but it is also a form of criminal justice intervention which raises wider questions. The tendency for diversion to be seen as more acceptable in use with children identified as offenders, for example, seems to suggest that it is also bound up with our ideas and assumptions about childhood, for example. The answers to this question undoubtedly also have a bearing on the precise form that diversion takes in any given context. Perhaps our response to the low-level offending of children and young people might be grounded in assumptions about the ‘normality’ of errant behaviour, and the value of a simple admonition to warn them of the error of their ways. But, similarly, it might be thought that a child’s offending is merely symptomatic of wider needs and problems, and that diversion from the criminal justice process ought also to mean diversion into appropriate preventive services to promote future well-being. Others might argue that addressing the specific issues arising from the offence, perhaps through some sort of restorative intervention, is an important vehicle for ensuring that the child or young person acquires a better sense of their own social obligations.

Behind these considerations, too, lies the matter of the relationship between diversion and social control. The immediate construction and delivery of diversionary interventions is a form of material practice which itself is related to deeper belief systems and wider forms of social organisation. Is diversion, then, a reflection of wider liberalising tendencies in criminal justice? Or, is it perhaps a manifestation of an informal means of social control, using a ‘light touch’ approach to extend moral messages and informal control into the lives of children, families and communities, especially in the sense that it is tied up with notions of conditionality or penalisation of non-compliance?

My aim in what follows is to open up some of these questions for exploration, to develop a detailed account of the emerging practices of youth diversion and their underlying justifications, and to reflect on the implications of these observations for our wider understandings of criminal justice. The book’s structure broadly follows these objectives, being divided into three, unequal sections. The first chapter, then, provides a theoretical backdrop to the following substantive account. Here, I will explore ideas of crime, justice and childhood, exploring the connections between these and drawing out the potential implications for diversionary practice. This focus is important because, as I have already observed, children and young people are treated as a separate category by the criminal justice system, and although many of the formal grounds for this distinction appear arbitrary (such as the age of criminal responsibility), their distinctive treatment does derive from underlying and interacting assumptions with their own logical basis.

The following chapter explores the translation of changing ideas about childhood into the specific context of the emergence of modern policing and the changing shape of practice in relation to young people’s offending. Here, the emerging formalisation of practice, and the development of a distinctive rationale for dealing with children’s crimes can be shown to have shaped the exercise of police discretion and legitimised a differential approach to their reported wrongdoings. As a consequence of this accommodation, a ready basis was established for the rapid expansion in the use of cautions for juvenile offenders with the implementation of the post-war w...

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