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Criminal Justice Proposed Policy

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Criminal Justice Proposed Policy I. LIMITING THE CRIMINAL JUSTICE SYSTEM’S REACH A. Policy Objectives To structure the criminal justice system so as to address the underlying causes of offending and to divert from formal court prosecution those cases involving some first time offenders and relatively minor crimes where there is no significant risk of harm to the public and where there is no overriding public interest for a prosecution. B. Policy Issues 1. Does the Penal Code contain offences relating to conduct that need no longer be classified as a crime or which may now be decriminalised? 2. Should a formalised general diversion scheme be introduced under the criminal justice system for certain offences and offenders? 3. Should formalised diversion schemes be introduced under the criminal justice system for specific categories of offenders such as young persons between the ages of 14 and 18 years who are first offenders, the mentally ill and alcohol and substance abusers? C. Policy Recommendations 1. A review of the Penal Code should be undertaken in order to flag for legislative review offences that need no longer be classified as criminal acts or which may now be decriminalised. 2. In order that informed decisions regarding the possible introduction of diversion may be made the relevant statistical information relating to the various offender groups that may be targeted by any diversion programmes should be collected and analysed. This will include, in particular, statistics concerning those offenders and offences that may be suitable for diversion, such as young first offenders, the mentally ill and alcohol and substance abusers. Information concerning any existing diversion schemes, formal or informal, operated by the police and the Director of Public Prosecutions should also be collected and analysed. 3. A diversion strategy, such as the one currently operating in New Zealand, aimed at diverting certain types of offenders out of the criminal justice system should be developed in consultation with the police and the Director of Public Prosecutions. 4. Consideration should be given to establishing a pilot deferred prosecution diversion programme aimed at young persons aged between 14 and 18 who are first offenders. Based on the statistical information to be gathered in respect of such offenders, specific sessions covering those areas most relevant to the young 1 offenders and their offences may be developed for incorporation into the diversion programme. 5. Consideration should be given to establishing a pilot diversion programme for the mentally ill to ensure that offenders with mental health problems who enter the criminal justice system are identified and directed towards appropriate mental health care. The pilot project will include the establishment, by the Ministry of Health, of a diversion team to develop and agree plans for the provision of training to improve the identification of mental illness by police officers, court officials and other criminal justice staff; provide recommendations and information to the police, prosecutors and to the courts in relation to decisions on charging, remand, sentencing and disposal of cases; and to ensure that mental health services are made available to offenders both in prisons and at the community level. 6. Consideration should be given to establishing a diversion strategy for alcohol and substance abusers aimed at curbing alcohol and drug related crime as part of the alcohol abuse strategy of the Ministry of Health. The diversion strategy should include the establishment of rehabilitation centres for alcohol and substance abusers with the aim of diverting such abusers out of the criminal justice system and into rehabilitation centres where they may receive appropriate treatment. Commentary 1) Decriminalisation 2) Diversion 3) The New Zealand experience of diversion 4) Diversion schemes for specific categories of offender a) Young persons between the age of 14 and 18 who are first offenders b) The mentally ill c) Alcohol and substance abusers 5) Restorative justice and diversion 6) Diversion strategies for Botswana 1) Decriminalisation Decriminalisation is the process of changing the law so that conduct that has been defined as a crime is no longer a criminal act. One of the first questions to ask when tackling the issue of sentencing and imprisonment is whether particular forms of conduct must fall within the scope of the criminal justice system. Not all socially undesirable conduct needs to be classified as a crime. At least part of the pressure on judicial and prison resources arises from the traditional legislative practice of trying to deter undesirable conduct by making it a criminal offence. In many States there are numerous criminal offences that are routinely disposed of by either a fine or imprisonment for less than 3 months. Should such offences remain “crimes” or are there other ways of dealing with such conduct? Where decriminalisation is recommended in respect of those offences that do not warrant the use of state resources to prosecute, less formal methods for disposing of these cases may be devised. This will then help relieve pressure on judicial, police, prosecutorial and prison resources. 2 The Penal Code1contains several categories of offences that in other jurisdictions have now been decriminalised. Many of these offences carry a sentence of imprisonment if found guilty. For example offences concerning rogues and vagabonds2 and criminal defamation3 are now decriminalised, in whole or in part, in many jurisdictions thus reducing rates of imprisonment. In such cases, decriminalising the behaviour and dealing with it outside the criminal law has not resulted in any negative impact on public safety. Some offences contained in the Penal Code, such as for example, challenging a person to fight a duel,4 are archaic and may be removed altogether. A review of the Penal Code should be undertaken in order to flag for legislative review offences which may no longer be necessary or which may now be decriminalised. If the recommendation for the creation of a Sentencing Commission for Botswana is adopted, the Sentencing Commission could perform this review function. Having identified those offences that may be abolished or decriminalised the Sentencing Commission may then work with the agencies having jurisdiction over the subject matter to determine if decriminalisation can be accomplished without undermining the purpose for which the law was originally enacted. Thereafter recommendations, including proposed legislation for abolishing or decriminalizing these provisions, can be made to the legislature. The Sentencing Commission would have the task of ensuring that in the future unnecessary criminal provisions are not added to general legislation. The Commission would also keep the criminal law under review and continue to draw to the attention of the legislature criminal provisions against forms of conduct that could be controlled just as or more effectively in other ways. The legislature may then repeal such criminal provisions and develop enabling legislation for alternative measures. 2) Diversion Under diversion strategies, authorities focus on dealing with people who could be processed through the criminal justice system in other ways. In practice, criminal justice systems typically process only a small proportion of the criminal law offences committed in any State. If States investigated, prosecuted, tried and convicted all offenders, the various parts of the system, including the prisons, would soon be overwhelmed and unable to cope with the numbers. As a result, police and prosecutors, who introduce offenders into the system, have to exercise a degree of discretion in deciding whom to take action against and whom to ignore. Diverting offenders from prosecution usually applies in those cases involving first time offenders and relatively minor crimes where there is no significant risk of harm to the public and where there is no overriding public interest for a prosecution. In such cases formal criminal justice proceedings may not be necessary. Instead the accused is referred to social workers or other agencies and dealt with through 'diversion schemes' which aim to address the underlying causes of offending. Criminal charges are typically dropped when a defendant successfully completes a diversion program. The defendant therefore avoids the stigma of a criminal conviction. Diversion is primarily targeted towards young people, female offenders, the mentally ill and those with alcohol and substance abuse issues. The key question in all criminal justice systems is how to structure this discretion to divert offenders from prosecution. Members of the police service need to have clear instructions on when they can themselves issue warnings and take no further action, when they may be 1 Penal Code Chapter 08.01 2 s.182. Penal Code Chapter 08.01 3 ss192-199 Penal Code Chapter 08.01 4 Section 89 Penal Code Chapter 08:01 3 able to divert qualifying offenders to alternative programmes without referring them or the case to the prosecuting authorities, and when they must refer alleged offences to prosecuting authorities. Similarly, prosecutors need clear guidelines. 3) The New Zealand experience of diversion In New Zealand an adult diversion scheme has been operating for almost two decades.5 Under the scheme the police may deal with some offences and/or offenders without going through a formal court prosecution. Under the diversion scheme offenders agree to fulfil certain conditions in exchange for
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