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A POLICE power allowing on the spot decisions over innocence or guilt in minor offences – which has already involved tens of thousands of people including young children – has been heavily criticised in a Public Prosecution Service (PPS) report.
The Detail obtained the report compiled by the PPS which probed the use of Discretionary Disposals (DD), a key policy under the Police Service of Northern Ireland’s (PSNI) Speedy Justice policy introduced in March 2010.
It allows officers to, for example, secure apologies or payment for a stolen item instead of burdening the courts with low level crimes.
But the critical PPS report obtained by The Detail through a Freedom of Information (FoI) request highlights concerns that in some cases police have used discretion without enough evidence to prove that an offence has even occurred.
The report from September this year also raises concerns about cases were DDs were issued to children as young as six and eight years old.
The PSNI said the case involving two children was an error, the only case of its kind and has “subsequently been rectified”.
The police service said that while all matters raised by the PPS were “taken very seriously and acted upon promptly by individual case reviews”, it maintains that most of the issues were due to a lack of information available at the time rather than a failure to deal with the disposal correctly.
However, Queen’s University Criminologist, Phil Scraton, believes the perception of police as “judge and jury in their own court” could have a long term negative impact on community relations.
He said: “The immediate response I have to anything that has discretion in it is that it creates the situation where there is no absolute certainty and there is no due process.
“I’m also very concerned about the word ‘speedy justice’. If that means that all the safeguards that are normally their within the justice system are removed, that to me is a step too far”.
“SIGNIFICANT ISSUES”A previous story by The Detail outlined how the speedy justice policy had been rolled out here virtually unnoticed and that there were major disparities in how it was being used.
Until discretion was introduced, formal cautions and prosecution were among the only official avenues which could be pursued. Both involve the PPS, but discretion allows a police officer on the ground to choose to deal with a minor offence on the spot him or herself and to impose sanctions without reference to the PPS.
A DD is supposed to be used for “minor offences” and can only be issued when the suspect admits the offence and is not a persistent offender.
The PSNI’s operational guidance on how to manage discretion, states that the suspect must give consent to having the matter dealt with as a discretionary disposal. If the suspect is under 18 or a vulnerable adult, consent must also be obtained from the relevant appropriate adult.
However it is only “desirable” that the victim should consent and be satisfied with the proposed outcome; and they have no right of veto to this process.
While they may consult those involved about the options under discretion, the police officer will ultimately decide the “appropriate outcome”, such as an apology or paying for a stolen item.
Between January and June 2013 the PPS completed a quality assurance exercise regarding the use of police discretion. The study examined over 200 cases in order to ensure that DDs were being used “appropriately and applied consistently”.
In a statement to The Detail the PSNI said that while monthly checks have been in place since the start of the scheme, the latest PPS report covers a longer period than normal due to the monthly checks being suspended whilst new staff took over the role.
The findings of the PPS review were provided to the PSNI in July this year. The Detail obtained a copy of the report through an FoI request to the PPS. It outlined a number of “significant issues”, including:
- In some cases, the evidence was insufficient to prove the offence;
- Issues around the age of criminal responsibility – in one case DDs were issued to a 6 and 8 year old for criminal damage;
- Suspect being under the influence of drink or drugs at the time admission is made and a DD is discussed and agreed.
- Reference to mental health issues in respect of suspect which would raise a question mark in terms of the persons ability to understand the process.
To read the full PPS review report click here.
Responding to the findings of the report, the PSNI said in the majority of the cases the common issue was that evidence was not sufficiently recorded. For example it said when it was noted that the offender was ‘under the influence’, this was not to the extent that it impaired their understanding. Similarly when it was recorded that an individual had mental health issues, they were able to fully engage and demonstrate understanding of the process.
The PPS report also contained case studies of when DDs should not have been used. It highlights two cases of road traffic collisions where damage and injury was caused to the other driver.
In a third case, a driver had struck another vehicle when attempting to park, but drove off and the incident was only brought to police attention by a passerby. It transpired that the driver did not have a valid driving licence, insurance or MOT and yet a DD was still issued.
In a statement to The Detail the PSNI said it recognised that there is “an opportunity to improve guidance to officers regards when a discretionary disposal is suitable for use in dealing with motoring offences and is in process of changing this through re-issuing a revised guide of offence types suitable for discretion, including motoring offences”.
INSTANTPOWERQueen’s University professor and criminologist, Phil Scraton, believes the PPS document raises serious questions about the use of police discretion.
He said: “It’s important to remember this document is only based on a small sample of cases, but even still it is raising these kinds of problems. To me that demonstrates that there is a need to have a full appropriate research oversight into all of the cases and into how implementation is occurring.
“The issue of discretion being used on six to eight year olds, given my work on childhood transition, to me that is just flabbergasting. It’s just beyond comprehension how that could happen.”
Professor Scraton believes there is a perception that discretion is more beneficial to the police.
He said: “Quite importantly it answers one of the questions that has been an issue for the police for a long time which is paper work. In normal circumstances an officer has to go back to the station and fill out all the paperwork when an arrest is made, that is virtually done away with. So cynically you can say that it’s attractive for the police because they are given a power that is instant.
“However I have to ask what about the individual who has committed the offence, how have we even begun to explore that individual’s behaviour and why they did what they did? So for me all the protections that they are afforded under normal procedures in the law, are removed.”
Prior to the latest PPS review, officers who issued a DD only had to record information within their notebooks and did not have to document it within the PSNI’s electronic crime management system, known as Niche.
However, the police say that the PPS review highlighted the value of providing a full a record and officers now have to make a full entry to Niche.
In a statement to The Detail, PSNI Chief Inspector Michael Kirby said police discretion has a consistently high level of victim satisfaction in providing a proportionate, prompt and tailored outcomes.
He said: "One of the benefits of discretion is to provide a disposal option that has minimal bureaucracy and allows officers to concentrate on meeting the victim’s needs while dealing with the case promptly and proportionately.
“The PSNI accept there are improvements to be made in the recording of these disposals and since the key factor that gave rise to the issues in the (PPS) report was that of recording information, immediate action was taken to improve data capture in particular as we recognise the importance of maintaining confidence in all types of disposal”.
The PPS report, based on a so-called ‘dip sample’ of 200 DDs, said its ongoing process of review would be temporarily suspended in order to allow sufficient time for improvement to be made in the areas identified.
The report concludes that the huge disparities in relation to the number of DDs issued in each police district needed to be addressed.
In a further FoI response to The Detail, the PSNI provided a breakdown of over ten thousand DDs issued by the PSNI from January to July 2013.
The figures show that the 18-year-old age group was the most common category of offenders issued with DDs.
Meanwhile, excess speed and driving without due care or attention and using a mobile phone when driving were among the most common reasons for being issued with a DD.
However, the data still highlights huge differences in the number of DDs being issued in each police district.
Using the PSNI’s population estimates for each district, the figures show that South and East Belfast (District B) had the highest number of discretionary disposals per capita. This amounted to almost three times more than the number issued per capita in North and West Belfast (District A).
An Equality Impact Assessement (EQIA) was published by the PSNI in July this year. The EQIA addressed a number of concerns raised by youth justice groups, including the different volumes of discretion being applied across districts.
It pointed out that the data does not reflect that district B includes Belfast city centre and ‘significantly skew’ the population figures.
In recognition of the complexity of this issue, the PSNI committed to providing an updated EQIA in 2014 and says it is in the process of identifying how to improve the capture and analysis of data.
Paula Rodgers is policy co-ordinator for Include Youth which works with disadvantaged young people in Northern Ireland. She believes their initial concerns about police discretion have been realised.
She said: "Despite the fact that DDs have been operational since April 2010, the PSNI only issued the Final Decision Report EQIA in July 2013. This report was grossly disappointing and in Include Youth’s opinion did not adequately address the continued lack of screening evidence available on which to make a decision on adverse impact.
“We see no reason why the collection of necessary data is not at a much further stage of development, particularly given that the PPS had already raised such issues with the PSNI in July 2013. This is the PSNI dragging its heels to catastrophic proportions. We cannot wait until 2014, when the PSNI intend to conduct a further EQIA. This matter must be addressed now if we are to be assured that the implementation of DDs is being conducted in a fair and transparent way and not at the expense of due process and the child’s best interests.”
Defending the broad range of criticisms levelled against them, police said: “Whilst we recognise there are areas to improve and will work hard to do so, it’s important to recognise the consistently high level of victim satisfaction discretion has achieved in providing a proportionate, prompt and tailored outcome”.
To read the PSNI statement in full, please click see below this article.
© The Detail 2013