An Garda Síochána recently confirmed that they had failed to prosecute almost 3,500 young people who were deemed inadmissible for the Garda Diversion Programme. Worryingly, the report indicated that at least 55 of the 7,894 cases – around 0.7 percent – involved some of the most serious crimes. The nature of these serious offences – which included one case of rape and another sexual offence – is likely among the reasons why the Garda Commissioner felt it necessary to issue such an unequivocal public apology.

Clearly, the failure to prosecute serious crime can create risks – for society, for victims and, as the Commissioner himself rightly noted, for the young people involved. At the same time, we have to contextualise youth offending in order to find the right response to the majority of less serious cases. In doing so, we should recognise the benefits of police discretion not to prosecute low-level offences. We must also remember the well-documented limitations of the criminal justice system – especially in relation to the harms caused by young people.

From RTÉ Radio 1's Morning Ireland, Liam Herrick, Executive Director of the Irish Council for Civil Liberties, on the Garda report which shows 3,500 child offenders were not prosecuted for crimes

For a start, we should not be surprised if it turns out that the gardaí did address some of these offences informally. Decades of research from around the world shows that police officers respond to a significant proportion of low-level crime through negotiation and the threat of future action, rather than using their legal powers. These actions might not always be recorded, creating barriers to accountability. Still, the reality of modern policing is that we need the gardaí to have some discretion because it would not be proportionate for them to enforce the law on every occasion that they could do so.

This is relevant to the current situation. Official documentation stated that 20.7 percent of the cases in question were public order offences. This can include such crimes as intoxication in a public place, disorderly conduct in a public place and threatening, abusive or insulting behaviour in a public place. My suspicion is that there are few among us who have never done anything which could potentially qualify as "criminal" under public order legislation, especially in our younger years.

From RTÉ 1's Prime Time, a report on the failure to prosecute 3,500 young people for criminal behaviour

The 7,894 cases also included 10.6 percent offences involving shoplifting, 10 percent involving criminal damage, 5.6 percent involving drug possession and 4.9 percent involving trespass. While each of these offences can be quite serious, it may still emerge that the responsible gardaí deemed some cases to be so minor that prosecution would have been excessive. The point is that we need to explore whether there was a logical rationale behind the failure to prosecute these cases, before we can determine whether each decision was right or wrong.
Just because these young people were deemed not to satisfy the existing criteria for admission to the Garda Diversion Programme, we cannot assume that prosecution was necessarily the right course of action in each case. We must remember that the offenders in question are children. The age-crime curve is among the best documented phenomena in criminology, showing that teenagers and young adults commit the majority of reported crime. Yet, we also know that most young people naturally grow out of offending and anti-social behaviour as they mature, without facing a legal intervention.

From RTÉ Radio 1's Morning Ireland, Sean Redmond, Professor of Law at the University of Limerick, discusses his Greentown study on how children become engaged in crime networks

Research suggests that prosecution can actually hinder the natural process of desisting from crime for many individuals. For example, the Edinburgh Study of Youth Transitions and Crime followed a large cohort of young people throughout their childhood. The researchers found that pushing young people through the criminal justice system was not an effective way to reduce reoffending. Rather, it acted as a barrier to success later in life and entrenched the very inequities that made some young people more susceptible to being caught up in the net of the criminal justice system in the first place.
Similarly, a recent review of research on police diversion found that it was more effective than prosecution at reducing delinquent behaviour among low-risk youth. We also know that criminalised young people are disproportionately drawn from the most vulnerable and excluded groups in society. Contact with the criminal justice system may simply compound their disadvantage.

READ: how Irish crime gangs are a hidden threat to child well-being

This raises the question of how best to respond to the harms caused by young people. Diversion doesn’t mean doing nothing, and there are a variety of evidence-based interventions which can be used to divert even persistent young offenders from court. For example, restorative justice gives victims the opportunity to speak to the offender in a structured and safe conversation. They can ask questions, explain the impact of the offence and provide input regarding reparation and how to move forward. This process has been foundto reduce reoffending and help victims to recover from crime, even in response to serious and repeat offending. Restorative justice is well-established in several countries, including Norway, Finland, Belgium, New Zealand. However, recent figures show that it is rarely used alongside diversion from court in Ireland.

One of the biggest problems with the report on youth diversion is that there are 3,480 victims of crime whose needs were not addressed at all. Most of these cases preceded the passage of new legislation in 2017, which gave victims legal rights for the first time. However, many victims are still not kept informed about the progress of their cases and most areas lack integrated victim support services (including restorative justice). That victims were ignored is not a product of the absence of prosecution alone. Rather, it is symptomatic of the chronic under-resourcing of services which aim to satisfy victims’ needs and interests.

From RTÉ Radio 1's Liveline, listeners react to the Garda report on the failure to prosecute young offenders

Diversion and prevention are key to helping young people to learn from their mistakes and reducing the likelihood of reoffending. By expanding diversion programmes to focus our limited resources on more serious and persistent offenders, and adopting a multi-agency response which "wraps" children with the necessary support, we can take youth crime seriously without unnecessarily criminalising young people. This is what criminologists Kevin Haines and Stephen Case mean when they implore us to think about young offenders as children first and as offenders second.
There are few hard and fast rules for dealing with the harms caused by young people. Victims of crime and the public rightly expect that serious offences will be prosecuted. However, for everything else, we must determine on a case-by-case basis the most effective way to ensure that children understand the implications of their actions and abstain from offending in the future.

Written by: Ian Marder, Maynooth University.
This article was first published on RTE Brainstorm on 31 Jan 2019