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Roles and responsibility of the stakeholders in the pre trial diversion programme - Part 1
Justice for Children Trust
April 20, 2012

Read Part 2 here

A. Police

The police should use the power to arrest as a last resort. The arresting detail should consider diversion options before effecting an arrest depending on the nature and seriousness of the offence. The juvenile should be assessed within the shortest period of time and in any event, within a week. If the police decide to arrest the child, minimum force should be used. The police officer should explain all the rights entitled to the child in a language that he understands. Investigations should be completed urgently and promptly and notification of the arrest must be given to the diversion officer, giving all relevant details of the young person. Young offenders should not undergo identification parades or fingerprinting. Where a young offender is incarcerated, the arresting detail and the officer in charge should ensure that the offender has proper food, medical treatment if required, adequate clothing, access to religious counselors, his lawyer, parents, guardians and should be separated from adult offenders to avoid criminal contamination. Where the police fail to determine whether the matter should go for diversion or not, they should prepare the docket which would be sent to the prosecutor, who upon receipt of the docket should refer the case to the diversion officer to make investigations.

B. Diversion Officer

The diversion officer should immediately investigate the personal circumstances of the young person and his eligibility for diversion after notification from the police. Where the diversion officer is satisfied that a warning is necessary at this stage, he will refer the young offender to the police so as to be dealt with in terms of the police guidelines. The diversion officer would produce a report which will submitted to the Area Public Prosecutor for consideration. The report should contain the age of the offender, the socio- economic and demographic circumstances, the personal circumstances and contact details of relatives or guardians, the nature of crime committed, the circumstances surrounding such commission, whether the young person admits his guilt, the justification for diversion and the recommended activity to which the young person will be subject.

C. Area Public Prosecutor

After preparing the docket, the police should bring the young offender together with the docket with the diversion officer`s report to the prosecutor. The prosecutor can make a decision after going through the evidence and circumstances of the case including recommendations by the diversion officer in the report. The prosecutor would then cause a meeting to be convened by the diversion committee to deliberate on whether the case is suitable for diversion. Where necessary, the diversion officer may be required to provide additional information on the offender. The prosecutor would proceed to decline to prosecute and endorse such decision on the police docket or arrange for the charges to be formally withdrawn before plea before a magistrate when a matter is finalized without due process.

A prosecutor is a representative of the Attorney General`s Office and has the power to decide whether to prosecute or not in any matter. Reservations were made about the desirability of the prosecutor to solely decide on the suitability of an offender for diversion in an impartial manner considering that the prosecutor represents the victim's rights and is in the business of bringing offenders to trial and seeking their conviction. The result is that they may be fewer cases for diversion hence the small multidisciplinary committee to make the decision had to be constituted as the diversion committee.

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