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7.1 Diversion is the channelling of prima facie cases away from the criminal justice system with or without conditions. Conditions can range from a simple caution, or referral to the welfare system to participation in particular programmes and/or reparation or restitution. Diversion can take place prior to arrest, prior to charge, prior to plea, prior to trial or prior to sentencing.
7.2 Diversion programmes can assist the young person and the people important to him or her to understand what went wrong, what can be done to repair the damage and how further offending can be avoided. The diversion process can thus assist the young person to be accountable for his or her actions, and help the young person to become a contributing member of society. This reflects the principles of restorative justice which aim to empower victims as well as to deal with young people in the context of their communities and families. Indigenous traditional methods of conflict resolution embody restorative justice values and principles.
7.3 Diversion in South Africa has taken place for some years. However, the chief referral mechanism used has been withdrawals of charges by prosecutors. There is no formal legislative framework for diversion.
7.4 At present diversion services are mostly rendered by NICRO branches in 20 areas. In the year 1994/5 a total of 3 565 cases were referred to NICRO for participation in diversion programmes. NICRO accepted 3 355 (94,11%) of the cases, and of these 2 725 (76,44%) were completed successfully.[57] Diversion programmes are run by probation services in some areas.
7.5 At present the opportunity to be diverted into a programme is limited.[58] Studies indicate that fewer than 5% of juvenile cases are channelled to children’s court enquiries.[59] The number of diversions handled by NICRO annually represent a small percentage of the potential number of juvenile cases which would be suitable for diversion.
7.6 Diversion programmes currently run in South Africa by NICRO include youth empowerment schemes (a six session life skills training programme), pre-trial community service (between 30 and 100 hours), family group conferencing[60] (a restorative justice alternative conflict resolution forum involving victims) and the journey programme (outdoor experiential learning). These are the most frequently used programmes. Ad hoc examples of diversion have also emerged, such as referral of matters to traditional structures or street committees. There have been imaginative and inexpensive examples of diversion practices operated by prosecutors such as essay writing. A need has been identified for programmes which would be of benefit to children charged with sexual offences. These programmes could be used as diversion options or as components of sentence.
7.7 Whilst the development of diversion programmes by both the NGO sector and the state in South Africa is of great importance, the absence of formal programmes, administrative and other difficulties need not be a serious impediment to the operation of diversion. This view is endorsed by the Constitutional Court in S v Williams[61] quoting S v Sikunyana[62] with approval.
7.8 According to the Interim Policy Recommendations of the IMC, diversion programmes need to be appropriate in intensity. Diversion is described in terms of three levels: level one is the withdrawal of cases with a possible caution, level two is diversion to a programme, and level three is diversion that incorporates a formal diversion programme and involves more intensive intervention.
7.9 The significance of the UN Convention on the Rights of the Child with regard to juvenile justice is that it has elevated diversion to a legal norm which is binding on South Africa since ratification. Article 40(3)(b) of the Convention provides as follows:
State Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) ...
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
7.10 Diversion is also addressed in the Beijing Rules. Rule 11 enunciates the following principles:
11.1 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority, referred to in rule 14.1.
11.2 The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these rules.
11.3 Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or her or his parents or guardian, provided that such decision to refer a case shall be subject to review by a competent authority, upon application.
11.4 In order to facilitate the discretionary disposition of juvenile cases, efforts shall be to provide for community programmes, such as temporary supervision and guidance, restitution, and compensation of victims.
(i) Referral
7.11 Under South African law the prosecutor is dominus litis, and therefore diversion up until the present time has depended upon the mechanism of voluntary withdrawals by the prosecutor. Indications are that this has not been effective on a wide scale. Prosecutors are not specialised in or trained for this type of assessment and decision making and have operated in the absence of a legislative framework for diversion.
7.12 There is a need for a distinct procedure prior to charge, to ensure that diversion decisions are taken and that cases involving juveniles are correctly channelled to a suitable option such as a programme, to a children’s court inquiry, or to criminal court. In recent juvenile justice literature in South Africa, this step has become known as “referral’.[63] It has been suggested that referral should take place as soon as possible after arrest or after an alternative means for securing attendance of the juvenile has occurred.
Comment is invited on how this distinct step should be legislatively framed.
7.13 A second question that arises is who should be involved in the referral process. Several options present themselves:
(a) The prosecutor continues to be the key decision-maker concerning the channelling of juvenile cases. However, the difficulty with this option is that prosecutors are not specialised in or trained for the type of indivualised assessment that is required. Also, many prosecutors bear heavy case loads, and do not have the time to be involved in psycho-social determinations regarding children.
(b) Some systems use the court itself as the referral mechanism.[64] The presiding officer is then compelled by statute to consider the possibility of diversion in each and every case. The advantage of this system is that it provides due process protections ; however, it too requires specialised training of judicial officials and more problematically, strips diversion of its most valuable advantages, namely keeping children away from contact with the courts and enhancing early release from detention.[65]
(c) The IMC recommended that the referral be done on a multi-disciplinary basis. The decision to divert is not just dependent on the specific nature of the offence, but also on the personal circumstances and individual needs of a particular child. Therefore, a person with social work training such as a probation oficer may be more suited to the task than a person with a purely legal background. The multi-disciplinary approach, though, recognises that a number of role players may be involved, including police, prosecutors and potentially even victims. The difficulty with such an approach is the practical problem of getting a number of officials together to decide on a case by case basis.
(d) A specially trained official, using a process and/or instrument developed by a multi-disciplinary team and subject to monitoring by such a team, could undertake referral of cases for diversion. Difficult cases could be decided by engaging with other members of the multi-disciplinary team.
(ii) The need for legislating diversion options
7.14 The international instruments require the inclusion of diversion in juvenile justice legislation. They do not spell out how this should be done. Two overlapping issues arise in regard to legislation on diversion. The first is the extent to which details regarding diversion programmes need to be included in proposed legislation. Two possible approaches are put forward for consideration:
(a) One view would favour excluding details of any kind about types of diversion programmes, leaving that to the discretion of the officals concerned.
(b) Another view holds that in order to ensure the delivery of appropriate programmes, some detail, at least about the “levels of intensity”, needs to be spelt out. Also, specific reference to restorative justice processes will ensure that this option will be developed and will be used by the system.
Comment on these two options is invited.
7.15 The second issue in relation to diversion and legislation concerns the mechanism for the selection of cases for diversion. The following options are put forward for consideration:
(a) The example of enabling provisions such as section 254 of the Criminal Procedure Act which currently allows the diversion of criminal juvenile cases under certain circumstances to a children’s court inquiry could be followed. The proposed legislation could include specific provisions detailing a range of different diversion options.[66] The difficulty with this is that it may not increase the use of diversion in practice, as is evidenced by the under-utilisation of the children’s court procedure (and alternative sentencing provisions) despite enabling legislation.
(b) In order to overcome the difficulty set out in option (a), proposed legislation could include a mandatory consideration by a court as to whether a matter should have been diverted.[67] This could be an addition to option (a) providing a further protection against criminal trials. The aim would then be to ensure that no trial commences without consideration having been given to diversion.
(c) Another means of overcoming the difficulties set out in option (a) is to provide specific legislative indications (for example in a schedule of offences) as to when and in which circumstances diversion is mandatory, discretionary or excluded. This model can be illustrated with the following examples:
(d) Diversion could be regulated in detailed guidelines to be used by police, probation officers, prosecutors and other officials. These guidelines could have the status of directives or standing orders or could be gazetted as regulations to the proposed legislation. The notion of minimum standards and practice guidelines appear in recent South African juvenile justice literature including the IMC Interim Policy Recommendations.
7.16 The four options as set out above may be used singly or in combination. Comment is invited on these four options, and on any other possible options.
(iii) Protection for due process rights, and equality of access to diversion
7.17 It is necessary to build in safeguards to minimise the risk of loss of due process rights (those rights built up by the courts over centuries to protect the right of accused). The first risk comes right at the outset when the young person is required to acknowledge responsibility for the wrongdoing before being considered for diversion. This is a departure from the legal rule that a person is innocent until proven guilty, and that he or she has a right to remain silent. A young person who is in fact innocent of the offence with which he or she is charged, may be tempted to opt for diversion because of a fear of going to trial. In order to minimise the risk of coercion, the option of diversion should be explained before the young person has been asked whether he or she is prepared to acknowledge responsibility for the actions leading up to the arrest. The option of a trial should not be posed as threatening, and it should be explained that if the case should go to trial, the young person will be offered protection in the form of legal representation. Specialised training will be necessary for all personnel dealing with referral of diversion. During the explanation the terms "guilty " or "innocent" should be avoided. The relevant terms should be "taking responsibility for", or "being accountable for". Any discussion with the young person about diversion must happen in the presence of the parent or guardian.[68]
7.18 In order to minimise these risks, there should be rules set out in either legislation, or practice guidelines regarding the manner in which the option of diversion is offered.
7.19 In South Africa diversion efforts have been marked by inequalities such as an urban bias and discrimination regarding race, gender and age.[69] In order to ensure the constitutional rights of children to equality of services, efforts will have to be made to ensure equal access. These may include provisions of services and programmes in rural areas, effective referral which takes into consideration the best interests of the child and the removal of contraints to diversion such as the requirement that children have fixed addresses before they can be considered eligible.
[57] See further L Muntingh (ed) Perspectives on Diversion NICRO National Office Cape Town: 1995 for an in depth discussion on NICRO diversion programmes.
[58] IMC Recommendations 40.
[59] See par 8.9.
[60] The IMC has a pilot project operating in Pretoria on family group conferencing.
[61] 1995 (3) SA 632 (CC).
[62] 1994 (1) SACR 206 (Tk).
[63] See for example Juvenile Justice Drafting Consultancy Proposals and IMC Recommendations.
[64] For example New Zealand.
[65] Magistrates may not be available outside regular court hours. A child may have to spend time in detention awaiting the first court sitting.
[66] Compare the wording of s 297 of the Criminal Procedure Act which allows a number of options such as attendance at programmes, restitution to victims etc. See the discussion on sentencing below.
[67] For example New Zealand.
[68] See A Skelton Diversion and due process in L Munting (ed) Perspectives on Diversion 1995 31 - 37.
[69] Children under 15 years of age do not qualify for community service or correctional supervision.
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