Page 71 - JUSTICE Tackling Racial Injustice - Children and the Youth Justice System

to strengthen the existing presumption in favour of diversion for
children 204 and for this presumption to be properly embedded and
consistently applied in all criminal allegations involving children. The
framework should include:

i. a requirement that children are bailed or released under investigation in
order to enable the police to arrange a voluntary interview. Only in the
most exceptional and serious of cases should a child be held in police
custody. A chief constable must approve detention for more than six
hours.
ii. a requirement that children always receive legal advice. Police should
notify the duty solicitor or solicitor of the child’s choice. 205
iii. YOTs to convene regular local diversion panels with a range of
experience, including representatives from the local community,
especially BAME individuals.
iv. a requirement to refer all cases, regardless of the nature of the allegation
or the child’s number of historic offences, to the local diversion panel,
including road traffic cases and where a civil injunction is being
contemplated, or where this is not possible, to record why a referral has
not taken place. Should the police not adopt the diversion panels’
recommendation, this decision must be susceptible to judicial review.
v. Legal Aid funding for pre-charge casework to enable defence solicitors to
provide written representations to assist and engage collaboratively with
the diversion panels.

204 See CPS Legal Guidance on Youth Offenders – “When applying the public interest factors in the Full
Code Test in a case involving a youth, paragraph 4.17 b) will always be a particularly important one.
This paragraph provides that: "A prosecution is less likely to be required if...the seriousness and the
consequences of the offending can be appropriately dealt with by an out-of-court disposal which the
suspect accepts and with which he or she complies. "This is a factor which will always carry a special
weight in the case of youths who are at a very early stage of their offending, and can be traced back to
historic police practice (as set out, for example, in Home Office Circular 18/1994) of starting from a
presumption of diverting youths away from the courts where possible.”
205 Ministry of Justice, Tackling Racial Disparity in the Criminal Justice System: 2020 Update, February
2020. – “Findings showed that children and young adults do not always utilise their right to legal advice.
Whilst police inform children of their entitlement to free legal advice, children do not always understand
what this means, the solicitor’s role or how this could benefit them. The Youth Justice Policy team,
Legal Aid Agency and Legal Aid Policy teams are working closely to ensure that young adults engage
with legal advice in the police station.”

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