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Alternatives to Prosecution

The Case for Real Alternatives to Prosecution

NIACRO supports alternatives to prosecution which divert people from the criminal justice system and have been shown to:

  • Be cost-effective [1]
  • Reduce courts’ caseload [2]
  • Reduce reconviction, leading to fewer victims of crime. [3]

They can also work effectively with people involved in low level offending, including those who repeatedly appear before the courts.  Focused interventions can assist this group in remaining out of the criminal justice system.

To NIACRO, well designed alternatives to prosecution should aim to change an individual’s offending behaviour, thereby reducing crime and the impact of crime on our communities.  When successful, they should –

  • Keep people from entering the criminal justice in the first instance and;
  • Divert consistent low-level offenders from returning to the criminal justice system.

Keeping people, particularly young people, out of the criminal justice system is crucial.  Research shows that once people are in the system, they are more likely to offend again.  This is partly due to employer attitudes and existing legislation, which heavily reduces their chances to enter into training or employment.  Across the UK, 60% of ex-offenders are refused jobs because of their criminal record. [4] Therefore, the chances of this group re-offending increases significantly.

NIACRO accepts that penalty notices and conditional cautions for minor offences may reduce police, prosecution service and court caseload. They may also reduce delay in the justice system but NIACRO disputes that they will reduce re-offending.

The Problem With Fines

The Government’s proposed alternative to prosecution is a predominately fine-based system.  The difficulty with this is that where a person is at risk of offending, imposing a fine will do nothing to reduce this risk and may, in some cases, serve only to increase the likelihood of them re-offending.  This is borne out by NIACRO’s 40 years of working with offenders and the families.  Fines don’t normally change behaviour.  In Northern Ireland over 1,700 people per year enter custody because they have defaulted on fines. [5] Increasing the use of fines will increase the size of this group, while failing to reduce their offending behaviour.

NIACRO accepts in some circumstances, fines may be appropriate.  For some offences, an individual will see the fine as an effective deterrent.  However, fines also punish those who cannot pay by criminalising them through the courts.  Similar criticisms can be applied to penalty notices, particularly if (as was the case in England and Wales) a problem of overenthusiastic application is likely. [6]

Conditional cautions and youth conference plans, while attempting to deal with causes of crime, can also result in barriers to an individual’s chance of employment and/or provide the entry to the criminal justice system that leads to further offending.  For instance, while a youth conference order may not appear on a young person’s record once they turn 18 years, should they require an enhanced check for their career of choice, their conviction will appear and an education provider may choose to cancel their enrolment on a course.  NIACRO has numerous experiences of this being the case.

In addition, as the proposed Justice Bill places further expectations on conditional cautions which means that a person who fails to comply without reasonable excuse (Part 6, Chapter 2, 79 (1)) [7] can be arrested without a warrant, there is a very real chance vulnerable people may fall through the cracks and be arrested without knowing or understanding why.

As an organisation well qualified in working with people with complex needs, NIACRO is seeking to develop the debate on how best to reduce crime in the long-term, and create a safer society. In doing so, we propose a more extensive diversion system as both an alternative to prosecution and to a fine-based solution.

How Diversion Can Work

Internationally, there are good examples of diversion from prosecution working to reduce crime and ultimately the numbers in custody. 

In Canada, the youth justice system focuses on diversion from court and the rate of detention has dropped significantly, without any increase in youth crime rates.  The rate of spend has also fallen and a percentage has been redirected back into community based programmes. [8] In Northern Ireland, it currently costs up to £200,000 per year for each young person in the Juvenile Justice Centre and up to £80,000 per young person per year in Hydebank Wood.  Even a small reduction in these numbers could fund significant community based diversionary programmes.

In the Netherlands a ‘Safety House’ combines a number of services including police, probation and mental health services in one building, to provide a multi-disciplinary response to the underlying causes of offending behaviour. The ‘Safety House’ scheme has proven to be successful and has now been implemented across the Netherlands. [9] [10]

A recent evaluation of a conditional caution scheme in England, aimed at women offenders and which contained a rehabilitative element, concluded that it had a positive impact on their offending and other key areas of their lives.[11] Diversion offered a chance to move away from the cycle of offending and the stigma of being labelled as ‘an offender.’ Northern Ireland also has a new strategy for working with women who offend.  The Inspire Project is a pilot partnership between PBNI, NIACRO and Women’s Support Network.  Offered to women returning to the community, it provides a model of intervention which helps service users access the help they really need.  It has considerable merit as a means of diverting women from prosecution, as well as from custody.

A failure to tackle the criminality of prisoners who serve sentences shorter than 12 months is costing England and Wales between £7bn and £10bn annually in reoffending. [12] The situation is likely to be similar in Northern Ireland.  Alternatives to prosecution should therefore also be focused on effectively diverting people from going back into the criminal justice system.

A Way Forward

NIACRO proposes a system of assessment of offenders at the first point of contact, when they are apprehended or being charged with a low level offence.  Instead of immediately being issued with a penalty, the individual should be offered a referral to an appropriate service.  In offering a diversion as the first alternative to prosecution, we can begin to address causes of offending behaviour.  Penalties have limited impact on such cases as those who experience mental health problems, have issues with substance misuse or are socially isolated.  Having worked with thousands of vulnerable people in our 40 years of experience, NIACRO knows most people want and need intervention and support to make changes in their lives.

This initial assessment and offer of diversion could be made either by police officers (following appropriate training) or by independent teams (similar to the Drug Arrest Referral Teams.)

Services already exist to meet the needs of referred individuals. These include addiction services, debt management services and housing support projects.  NIACRO has shown that focused interventions with vulnerable people can be successful through the APAC Project, which helps people maintain their tenancies through use of voluntary agreements, and the RIO Project, designed to help young men coming out of Hydebank without statutory supervision manage their lives once they’re back in the community.  APAC Mental health has also completed its first year of implementation and has successfully assisted young adult offenders with mental health issues reintegrate in the community. 

For those where diversion is successful, no further action is required. Those who reoffend will enter the system.  

NIACRO acknowledges the DOJ proposals include a rehabilitative element via conditional cautions.  This route is “aimed at individuals who already have some history of minor offending that is suggestive of an ongoing pattern of behaviour that is contributing to their offending.”[13]

Our proposals stress the need for more emphasis on addressing the causes of the offending behaviour at the earliest possible stage, that is before a person enters the criminal justice system, rather than only after repeat offences.  

The role of the PPS will be important in this process.  The Service could act as both a monitor for the work of the PSNI and frontline services, as well as potentially acting as a safety net.  That is, should a person be sent forward for a court appearance, the prosecutor (similar to the Safety House model in the Netherlands) will be in a position to divert them to a support service, rather than imposing a penalty notice or conditional caution.

James

James is 22 years old.  He left school without completing GCSE’s and has been working in labouring jobs on and off since this time.  James has a drinking problem, which has grown more serious, as he has not been in employment for three months.  James has no convictions, although police believe he has been involved in at least two acts of vandalism. 

Under the proposed NIACRO scheme, should James be caught shoplifting an item under £100 (considered to be a low level offence and eligible for an alternative) instead of being issued with a penalty notice, police would refer James to a service dealing with addiction issues.  This is an alternative to the proposed DOJ suggestion, which would be to issue James with a penalty notice, this being his first recorded offence. 

By making sure James receives support and his offending behaviour is properly challenged, NIACRO believes it is less likely he will become involved in the criminal justice system.  Our understanding is that, under the proposed system, the PSNI will put James’ details in their system whilst onsite and – should he appear in their records as a person of note – they will take action.  Currently, this means a penalty notice or a conditional caution.  The first will not deal with the underlying issues of his behaviour.  The second may leave James with a conviction.

Instead, focused intervention, delivered before a conditional caution becomes necessary and/or James defaults on a penalty notice (or pays it and continues offending), would be more effective in reducing the chances of him committing further offences and creating more victims.

The savings

The Department of Justice suggest that their proposals would save the criminal justice system £750,000 to £1 million per year.  This may well be the case; however, the NIACRO proposals could result in the same cost reductions. The main difference in our proposals is the appropriate use of early intervention, instead of reverting immediately to a fine-based solution. And these have the potential to lead to further savings.

In 2009, the Make Justice Work Matrix, [14] suggested that -

  • Diverting one offender from custody to residential drug treatment would save society approximately £200,000 over the lifetime of the offender.
  • Diverting one offender from custody to intensive supervision with drug treatment would save society approximately £60,000 over the lifetime of the offender.

These cost savings include not only the lower cost of implementing custodial sentences, but also the costs avoided due to reduced re-offending.  In our view, early intervention will divert low-level offenders who could go onto more serious offending, and remove them from the criminal justice system.

Conclusion

NIACRO commends the Minister and the Department of Justice for seeking to implement effective alternatives to prosecution and endorses the ambition to create a safer society.

However, we are concerned the proposals focus almost exclusively on fines and conditional cautions.  In our experience, neither deal with the causes of offending behaviour.  Both can result in a criminal record, thereby creating a barrier to education, training and employment and simply offering a longer pay period as a solution makes little difference to those in default.  Further, it will have little effect on someone who chooses custody over payment (the case for more than 1,700 fine defaulters each year) and an opportunity to address their offending behaviour will be lost.

Instead we urge the relevant authorities to divert individuals to alternative services on a needs basis. Thus the factors behind a person’s offending are addressed and there is an opportunity to change behaviour, reduce re-offending rates and victim numbers.

NIACRO believes offender should face up to what they have done.  However, we believe diversion and early intervention is more likely to deliver a cost effective and humane resolution that will assist in reducing crime and its impact on victims and the community.

References

1. HM Inspectorate of Probation Annual Report 2009-10: Independent inspection of adult & youth offending work, Andrew Bridges (2010)
2. Methods of Diversion used by the Prosecution Services in The Netherlands and other Western European Countries, Dr. Peter J.P. Tak (2008)
3. What works in Reducing Criminality, McGuire (2000)
4. Home Office, Breaking the Circle: a report on the review of the Rehabilitation of Offenders Act, (2002)
5. Statistics and Research Branch, Digest of Information on the Northern Ireland Criminal Justice System 10. The Northern Ireland Office (2010)
6. Northern Ireland Office, Fine Default in Northern Ireland: A Consultation (2008)
7. Department of Justice, Justice (Northern Ireland) Bill (2010)
8. N. Bala, P. J. Carrington, J.V. Roberts, Youth Justice Reform in Canada: Reducing Use of Courts and Custody without Increasing Youth Crime in D. Smith, a New Response to Youth Crime (2010)
9. Online reference: Safety House website (Veiligheidshuiszen), http://bit.ly/eTkaYs
10. Online reference: Netherlands Ministry of Security and Justice website, http://bit.ly/hsioti
11. H. Easton, M. Silvestri, K. Evans, R. Matthews, S. Walklat, Conditional cautions: Evaluation of the women specific condition pilot. Ministry of Justice Research Series (2010)
12. National Audit Office, Managing offenders on short custodial sentences, 10 March 2010, http://bit.ly/dg7p6t
13. Northern Ireland Office, Alternatives to Prosecution: A Discussion Paper (2008)
14. Make Justice Work, Are short term prison sentences an efficient and effective use of public resources? (2009)