Toolkit on Diversion and Alternatives to Detention

Definitions

 
 

Diversion

• Definition
• Key points
• Ground rules / legal safeguards

Definition:
Diversion means the conditional channelling of children in conflict with the law away from judicial proceedings through the development and implementation of procedures, structures and programmes that enable many - possibly most - to be dealt with by non-judicial bodies, thereby avoiding the negative effects of formal judicial proceedings and a criminal record.[1]
 
Key points:
1. Diversion can be instigated from the time of apprehension (before arrest) to any point up until the final disposition hearing (including after pre-trial detention)[2] – either as a generally applicable procedure or on the case-by-case decision of the police, prosecutor, court or similar body.
2. Ideally diversion should take place as soon as possible in the process, although national legislation varies on this issue.
3. Diversion must comply with human rights and legal safeguards as established in CRC Art. 40.3. See the Ground rules / legal safeguards below for more details.
4. Key differences between diversion and alternatives to detention: diversion requires the consent of the child and their parent or guardian and usually does not result in a criminal record, whereas: alternatives to pre-trial detention can be imposed by the police or prosecutor regardless of consent; alternative sentences can be imposed by the court regardless of consent and alternative sentences generally result in a criminal record. (See Ground Rule 1 below for more information regarding the issue of 'consent').
5. A decision not to pursue a case (e.g. through lack of evidence) may be made by the police or prosecutor or after a formal hearing but this is not ‘diversion’: the case is simply dropped altogether.
6. The term 'diversion' should not be used with regard to children who are too young to be prosecuted: if they are young to be tried, they cannot be diverted from trial.
7. One of the aims of diversion is to hinder the potential negative effects of formal judicial proceedings (for example the stigma of conviction and sentence) [Beijing Rule 11 commentary]. Diversion can also help to avoid 'over-reacting' to an offence by applying the principle of proportionality / minumum intervention [CRC Article 40.4 & Beijing Rule 5.1]. It can facilitate the child's social reintegration [CRC Article 40.1] and provide a constructive response to the child's offending. However, it is important to acknowledge an unintended yet welcome benefit of diversion: by its very nature, it also helps to reduce the number of children detained in police custody and pre-trial detention facilities such as remand centres, and the number of children appearing before the court.
8. In theory, diversion can be used for children committing any kind of offence (though in practice this is rarely used for the most serious crimes or for persistent offenders).
9. In some cases, diversion may not be appropriate or in the best interests of the child. For example, persistent offenders who have already experienced diversion in the past, but which has failed to address the offending behaviour, may require formal judicial intervention to help them get back on track. Diversion is also not appropriate for children who do not admit responsibility for an offence (see the 'ground rules' below).
10. Diversion can take the form of no action, a simple caution or warning, an apology to the victim/survivor, payment for damage done, or it may involve referral to a structured diversion programme (e.g. community work or a life skills or competency development programme) or to a restorative justice process (e.g. dialogue / mediation or family group conference) amongst other things.
11. The structures involved may vary. They may include police, statutory services, administrative bodies, commissions, NGOs, community-based organisations and faith-based organisations. In practice, diversion options often involve some form of formal or informal community support.
12. In some contexts, where provision or discretion for diversion already exists, it may be relatively simple to implement.[3] In other contexts it may require major system-wide reform (see the Systematic approach for more details). In all cases, however, it requires coordination and collaboration amongst stakeholders.
13. In civil law systems, there is no police discretion to apply diversion measures without the authority of the procureur (public prosecutor): in some countries the arresting police officer - or designated colleague at the police station - is obliged to first contact the procureur who then instructs the police on the course of action to take on a case by case basis; in other countries the prosecutor approves the decision of the police rather than instructing them.
14. Diversion programmes may be of varying duration and intensity and there must be clear guidelines in place as to who has the authority to determine this.
15. Diversionary measures should allow for diversion to be suspended and judicial proceedings restarted if the child fails to comply with the agreed terms and conditions of diversion.
16. Diversion options are not, per se, ‘restorative justice’ options. For example, in theory a child in conflict with the law could be ‘diverted’ away from judicial proceedings by being given a warning by police and then released. This option does not include elements to ‘restore the harm caused’ by the offence, nor does it necessarily involve the child taking responsibility for his or her actions in a positive way.
17. Diversion options are also not, per se, ‘child rights-based’ options. For example, in theory a child in conflict with the law could be ‘diverted’ away from the formal justice system by being sanctioned instead to corporal punishment by a community leader. This is technically ‘diversion’ but it is also contrary to child rights. Although the CRC promotes the use of measures for dealing with children in conflict with the law without resorting to judicial proceedings (i.e. diversion), it specifically adds “providing that human rights and legal safeguards are fully respected” (CRC Art. 40.3(b)). This is generally interpreted to mean that the ‘ground rules / legal safeguards’ listed below must be respected.[4]
18. Diversion options must be child rights-based and may be grounded, where appropriate, in principles of restorative justice.[5] It is not automatically the case that diversion fulfils these two criteria. 
 
Ground rules / legal safeguards:
1. Diversion is to be used only where the child admits to an offence and consents to a non-judicial response. This must be an ‘informed decision’, made of their own free will, without pressure or undue influence, and based on an understanding of the pros and cons of the options available. Those who maintain their innocence have the right to a full and fair trial.[6] The child's parent or guardian should also be involved in the decision-making process: “The child must freely and voluntarily give consent in writing to the diversion, a consent that should be based on adequate and specific information on the nature, content and duration of the measure, and on the consequences of a failure to cooperate, carry out and complete the measure. With a view to strengthening parental involvement, States parties may also consider requiring the consent of parents, in particular when the child is below the age of 16 years.” [7]
2. "The law has to contain specific provisions indicating in which cases diversion is possible, and the powers of the police, prosecutors and/or other agencies to make decisions in this regard should be regulated and reviewed, in particular to protect the child from discrimination."[8]
3. "The child must be given the opportunity to seek legal or other appropriate assistance on the appropriateness and desirability of the diversion offered by the competent authorities, and on the possibility of review of the measure."[9]
4. An important aim of diversion is to ‘give the child a second chance’: "The completion of the diversion by the child should result in a definite and final closure of the case. Although confidential records can be kept of diversion for administrative and review purposes, they should not be viewed as “criminal records” and a child who has been previously diverted must not be seen as having a previous conviction. If any registration takes place of this event, access to that information should be given exclusively and for a limited period of time, e.g. for a maximum of one year, to the competent authorities authorized to deal with children in conflict with the law."[10]
5. The case can be referred to a regular court system if no solution acceptable to all can be reached or if the measures at the disposal of the diversion system are not deemed appropriate by the authorities mandated to assess cases for diversion.
6. If the child fails to fulfill the terms of the diversion measure, the prosecution retains the right to restart judicial proceedings.
7. The accused always retains the right to a court hearing or judicial review.
8. Corporal punishment and public humiliation as well as any other measures contrary to the CRC cannot form part of a diversion programme.
9. Deprivation of liberty in any form - i.e. where the child is not free to leave - (including in 'rehabilitation centres' or 'special schools')[11] cannot form part of a diversion programme. Some diversion programmes incorporate a residential component (e.g. treatment for substance abuse or 'wilderness' programmes). In such cases, the child has given their informed consent to participate in this aspect of the programme and is free to leave. In such cases, leaving the programme would constitute a failure to complete the terms of the diversion measure and may result in reverting to judicial proceedings (see point #6 above), but this is the choice of the child. These 'residential' components of diversion programmes should not be confused with the placement of children in facilities where they are not free to leave (which is prohibited as a diversion measure).
10. The content, conditions and the period of time that a child is required to attend a diversion programme should take into account his / her age, maturity, religious and cultural background as well as any other needs and circumstances to prevent any further offending. It should also address the needs of any victims/survivors involved.
11. The child has the right to be heard and should be given the opportunity to participate in the decision-making process.
12. The measures imposed through diversion should be proportionate to the violation and should not be more severe or restrictive than the sanction the child would have received through judicial proceedings. 
 
Footnotes:
1. 'Non-judicial bodies' can include: civil society organisations and NGOs; community groups; and administrative bodies such as the 'Commission on Minors / Child Rights' which are mandated to review children's cases (common in the Commonwealth of Independent States (CIS) region). For information on why formal judicial proceedings are generally considered negative for children, see the toolkit section on Why are diversion and alternatives important? / Child development and psychology.
2. For example, if new information comes to light about a child who is being held in pre-trial detention which would enable them to be diverted away from judicial proceedings then diversion should still be made available at this - and/or subsequent - stages (e.g. if extended family members or others are subsequently located who can act as caregivers). The principle is that diversion should be made available as much as possible.
3. "If we can offer one key message from the field regarding diversion, it is that the process of doing restorative diversion is not complex. [...] [T]he issuance of cautions, providing counselling and mediation require the acquisition of minimal new knowledge, skills and require few new resources. The challenge is promoting the attitudinal shift." (Feedback from UNICEF Papua New Guinea).
4. This interpretation builds on UN Minimum Standard Rules for the Administration of Juvenile Justice (Beijing Rules) and UN Committee on the Rights of the Child General Comment No. 10 (2007) on Children’s Rights in Juvenile Justice, as documented by UNICEF EAPRO in Legal System Building Tool – Justice for Children (internal document, not for circulation).
5. Diversion can have both restorative and welfare elements. It is important that the intervention is tailored to the individual needs and circumstances of the child. A restorative approach is not always possible or appropriate in every case. [See the toolkit section on Restorative Justice for more details].
6. Beijing Rule 11.3 acknowledges the complexity of obtaining genuine 'consent' and "underlines that care should be taken to minimize the potential for coercion and intimidation at all levels in the diversion process. Juveniles should not feel pressured (for example in order to avoid court appearance) or be pressured into consenting to diversion programmes. Thus, it is advocated that provision should be made for an objective appraisal of the appropriateness of dispositions involving young offenders by a 'competent authority upon application'." [Commentary to Beijing Rule 11.3]
7. Committee on the Rights of the Child, General Comment No. 10, paragraph 27.
8. Committee on the Rights of the Child, General Comment No. 10, paragraph 27.
9. Committee on the Rights of the Child, General Comment No. 10, paragraph 27.
10. Committee on the Rights of the Child, General Comment No. 10, paragraph 27.
11. In some countries children in conflict with the law are diverted to administrative or welfare bodies which have the power to place them in 'special schools', 'rehabilitation' or 'education' centres from which they are not free to leave at will. It must be made clear that this constitutes 'deprivation of liberty' ('detention') and is contrary to the legal safeguards which apply to diversion. Referral to bodies with these powers of detention is therefore not a legitimate diversion option. Children often end up being detained in these facilities for longer periods of time than if they had been sentenced by a criminal court.

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