Gordon Harrison suggests Child Diversion Act clarifies ‘accepting responsibility’

Children’s Advocate Diahann Gordon Harrison wants the Child Diversion Act to make it clear that the ‘accepting of responsibility’ by a child who commits an offence should not automatically be followed up by a guilty plea in the courts before the youngster can be referred to the Child Diversion Committee.

In her submission last week to the Joint Select Committee reviewing the Child Diversion Act, Gordon Harrison said there has been inconsistent interpretation and application of Section 9(2)(a) of the Child Diversion Act 2018. This provision establishes as one of the prerequisites for referral to the Child Diversion Committee, that the accused child “accepts responsibility” for the actions that led to the charge.

She pointed out that, in practice, the courts interpret this in two ways – either that the child must enter a plea of guilty to the offence before the court, or that the child must admit responsibility to the offence to the child diversion officer, without entering a formal guilty plea.

However, the children’s advocate, an experienced former senior prosecutor, said that Section 2(3) of the child diversion law provides that the legislation shall be interpreted and administered so that the best interests of the child are paramount.

CHILD DIVERSION PROGRAMME

The legislation also indicates that criminal proceedings are not to be instituted against the child if there are alternative and appropriate means of dealing with the matter, and unless the public interest otherwise requires. Further, subject to the legislation, any child who has committed a diversion offence and accepts responsibility for that offence shall be considered for admission into a child diversion programme.

Gordon Harrison stressed that the ‘acceptance of responsibility’ within the context of child diversion does not require a formal placement of the child before the court and the entering of a guilty plea.

“To do so would effectively indicate the commencement of criminal proceedings within the courtroom against the child, thus treating him/her as a typical offender and one who will be saddled with a criminal conviction, whom the court would be at liberty to sentence in any manner it deems suitable,” she said.

The children’s advocate also proposed that Section 9 of the law be expanded to incorporate a mandatory referral mechanism requiring a constable who has cause to suspect that a child has committed a diversion offence, which is victimless and minor in nature, to refer all such cases to a child diversion committee once certain prerequisites of the law are satisfied.

The meaning of a ‘victimless and minor crime’ applies where there is no identifiable victim that has suffered any particular harm. Examples of such an offence may include street littering, disorderly conduct involving the use of curse words, and the peddling of sweets/wipes on the road.

Gordon Harrison has also suggested that lawmakers incorporate into Section 27(2) of the law a requirement that where a constable is conducting the interview of a child victim to assess the impact of the offence on him, it is done in the presence of a counsellor who has experience working with children, and not just in the presence of the parent or guardian.

She said a parent or guardian might not be suitably qualified in assessing victim impact, or might be overwhelmed by the circumstances affecting their child, and therefore impeded in their ability to appropriately guide their child.

edmond.campbell@gleanerjm.com