David O'Connor: Diversion plan has its flaws

The diversion scheme under which police have the discretion to withdraw cases from prosecution has been in place for about 18 years after being first introduced as a pilot scheme in Wellington.

It is designed to give offenders a second chance by diverting them from the criminal justice system. Diversion does not replace formal warnings or cautions which are alternatives to prosecution and can also be used by the police.

The offender must agree to the conditions imposed by the police before a diversion is granted. The conditions usually include a letter of apology, reparation, a donation to charity and/or community work.

The police Manual of Best Practice allows other conditions to be imposed which would help to rehabilitate the offender and encourage him or her not to re-offend such as counselling, a curfew, not associating with certain people, not driving, taking driving or firearms courses and living at home.

It can be argued that as Parliament gave the courts the power to discharge without conviction it is wrong in principle for the police to assume this power. The diversion scheme can be seen as an arrogation by police of an essentially judicial function with the associated wide powers to impose conditions and require the offender to do things on the threat of a criminal conviction if they refuse.

It is important to note that accepting diversion involves an admission of guilt. Such an admission might affect a person's ability to travel overseas, their insurance (for example, if the charge is one of dishonesty) and employment.

An accused person should always consider carefully all the options before accepting diversion and this should include any available legal defences and the possibility of receiving a discharge without conviction from the court.

Sometimes a person who accepts diversion might well have been given a discharge without conviction. In comparison to diversion, a discharge without conviction is deemed to be an acquittal. A person can ask the court for a sentence indication and whether a discharge without conviction might be given before deciding whether to plead guilty.

Sentence indications are usually given at a status hearing in the District Court. The effect of a criminal conviction on a person's career and reputation are important factors which are carefully considered by the court before it decides whether to grant a discharge without conviction.

The only legislative recognition of the diversion scheme is to be found in the Summary Proceedings Act 1957 which allows a criminal prosecution to be withdrawn by the police where the defendant has completed diversion.

There is no jurisdiction to judicially review a decision made by the police declining diversion and the court has refused to get involved in the exercise of such a prosecutorial discretion.

There is a good argument that the court should be able to review a decision made by the police under the scheme. This would provide an independent check that all decisions are made in accordance with the relevant procedures and rules. Legislation would be required to give the courts the jurisdiction to do so.

In addition, there is a good argument that the diversion process and all the relevant procedures should be set out in legislation rather than in a police manual to ensure a consistent approach is adopted by police throughout New Zealand.

The Justice Department Report, Imprisonment as the Last Resort: the New Zealand experience (1992), identified the enormous variations between areas in the use made of diversion, the procedures followed and the programmes imposed.

The report also mentioned that not only are many offenders being diverted who previously would have escaped conviction anyway, but they are also receiving punishment at least as great as, and sometimes even more severe than, the equivalent court sanction.

There are no specific statutory protections which prohibit the release of information relating to the police diversion scheme outside of the more general protections available under the Privacy Act and the Official Information Act.

The position can be compared with the Criminal Records (Clean Slate) Act 2004 which generally prohibits the disclosure of a person's criminal record after that person has been given a clean slate. Similar legislative protections should be in place under the police diversion scheme.

* David O'Connor is a senior solicitor at Wilson Harle, a law firm based in Auckland.