The Garda Diversion Programme and the Juvenile Offender: A Contravention of the Right to Legal Representation By Anna Marie Brennan

 

The Garda Diversion Programme, as established under Part 4 of the Children Act 2001, as amended by the Criminal Justice Act 2006, offers a unique alternative to traditional criminal procedure by preventing the child from being exposed to the full rigours of the criminal justice system while at the same time allowing the child to avoid getting a criminal record. However, it is important to examine whether the Garda Diversion Programme properly observes the due process rights of juvenile offenders. In any judicial proceedings against juvenile offenders, certain due process rights and procedural protections must be observed. The observation of these rights is necessary to protect the dignity and the human rights of the juvenile facing coercive punitive court proceedings.

 

            Furthermore, Article 40(3) (b) of the Convention on the Rights of the Child states that the child’s human rights must be fully observed and legal safeguards must be adhered to during non-judicial proceedings designed to deal with a child alleged to have been involved in criminal behaviour. However, in the context of the Garda Diversion Programme it is uncertain whether the same due process rights are observed in particular, the right to legal representation. However, the advantages for the juvenile offender if he gains admission to the programme, including the fact that a custodial sentence cannot be imposed on him and that he will avoid a criminal record, may justify the application of different due process standards.

 

              The juvenile has the right to seek advice from a lawyer before consenting to be admitted to the diversion programme. This is because of the risk that the diversion programme could be utilised where there is little or no admissible evidence to prosecute the child for the alleged offence. This is especially relevant in light of section 48 of the 2001 Act, as amended by section 126 of the Criminal Justice Act 2006, to allow involvement in the Garda Diversion Programme to be cited when sentencing a person for a further offence. However, as Campbell rightly notes the right to legal representation is not provided for during the course of the conference.

 

              While the argument that children should have legal representation during the course of the conference is well founded, it is uncertain whether the need for a solicitor during the course of the entire conference is absolutely essential to safeguard the child’s procedural rights. Advocates for allowing legal representation during the conference argue that the Gardaí, the child’s parents and the victim of the child’s criminal behaviour may constitute a potentially formidable and punitive group from who the child needs support.

 

               The child’s parents, in particular, may exert huge pressure on the child to agree to a particular action plan. A lawyer, acting in the child’s best interests, would be able to ensure that the child is not placed in this type of situation. Moreover, there is a huge difficulty as regards proportionality because it is the Gardaí who determine the length of the supervision of the child and also devise the action plan to which the child must comply. There is no mechanism whatsoever in the 2001 Act for the action plan agreed to by the parties to the conference to also be endorsed or varied by a court.

 

            It would seem that the child is a very weak bargaining party who has very little input into the obligations which are being imposed on them. In turn the obligations imposed on the child may be more onerous than any obligations that could be enforced by a court.  Therefore, if a child had a solicitor present during the conference, it would guard against an excessive action plan being forced upon the child.

 

            On the other hand, the child’s right to legal representation has the potential to impede the whole process by preventing direct dialogue between the victim and the child. The whole purpose of the conference is to allow for mediation between the child and the victim in order to resolve the difficulties arising as a result of the offence. The victim is given the opportunity to convey to the child the negatives effects which the crime has had upon him.

 

            The conference therefore seeks to involve all parties on a voluntary basis, compared to formal criminal court proceedings where the process is dominated by legal professionals. For that reason, the stringent enforcement of the right of the child to have a solicitor present at the conference would be harmful to the conference’s beneficial elements. In these circumstances, the child would probably avoid participation in the process and would not participate in the process in a meaningful way. The child would therefore be able to rely on their lawyer to speak completely on their behalf. In addition to this, the presence of legal professionals incorporates formality into the process, by speaking in a formal tone which the child may not understand.

 

            A more efficient way of ensuring the participation of the child in the conference and that their due process rights are being properly protected would be to appoint an independent observer who would attend the conference and observe proceedings. This observer would also advise the child as to the overall procedure and also guide the child in a non-adversarial way. This arrangement would preserve the primary goals of the process, sustain the fundamental due process right of the juvenile offender and also guarantee the informal nature of the conference. In addition, another method would be to provide written information to the juvenile when the JLO meets him to discuss the child’s admission to the programme. The information could set out clearly the implication of the child’s admission to the programme and specify what exactly would be on their criminal record. Both alternatives would be sufficient to ensure that the child’s rights are being upheld, although it would be more economical to provide written legal advice instead of employing an independent observer to attend the conference.

 

            Although, recognition of the right to legal representation in the diversion process could frustrate positive communication between all participating parties the reality still remains that due process norms are fundamental to safeguarding the child’s rights in the diversion process so that the child has an opportunity to fully participate in the process which ultimately affects him. However, the need for such due process rights is more important now than ever before given the fact that the child’s admission to the programme may be mentioned in court in the event of the child being sentenced for a future offence. The amendment of the 2001 Act to allow this therefore demands the application of more stringent due process norms.