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He suggested one shortcoming is that it relies on police discretion. And, that sometimes that can be subject to whim and caprice.
The solution, according to @fchralph? Get rid of police consent to diversion!
It’s not that easy though. I reckon the current legal position is that it’s not possible — or at least, lawful — without police consent.
The underlying law is not well understood. I was going to say, “Even by the police,” but in my experience, it’s more accurate to say, “Especially by the police.”
Discretion to investigate or police
Police are the gatekeepers to the criminal justice system.
They have the choice whether to act on crime, whether reported to them or perceived by them. No one bats an eyelid if a police officer stops a motorist going over the speed limit by a few kilometres an hour, or a pedestrian crossing against a red light, and sends that person on their way with a warning.
But if a police officer does’t act on a serious offence that comes to their notice, that’s usually not justified, and might even constitute misconduct in public office. (I plan to do a post on that in the near future.)
That’s all to do with the discretion police have to act, or not, when they identify alleged criminal offending.
There’s a bit of law on it, mainly from two areas: demonstrations or other public-order policing; and negligence claims brought by victims or families of victims affected by alleged police inaction.
Unsurprisingly, there are no cases (at least, that I can find) where an offender complains the police did not take action against them.
The starting point is that police exercise an original, not delegated, authority to exercise their common law and statutory powers. One of the most well known statements of this is in R v Commissioner of the Metropolitan Police; Ex parte Blackburn  2 QB 118. In that case Mr Blackburn was unhappy that the Commissioner of the Met decided not to enforce certain gaming laws, and sought a writ of mandamus ordering the police to enforce the law. At 136, Lord Denning MR said:
I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. That appears sufficiently from Fisher v Oldham Corporation  2 KB 364 and Attorney-General for New South Wales v Perpetual Trustee Co Ltd  AC 457.
Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than £100 in value. I should have thought that the court could countermand it. He would be failing in his duty to enforce the law.
In Hinchcliffe v Commissioner of the AFP (2001) 118 FCR 308, the Federal Court applied ex parte Blackburn when considering an application for a writ of mandamus to compel the AFP to investigate a complaint. At 320 Kenny J said:
I accept that where a member of the AFP receives a complaint from a member of the public, the member discharges his or her duty to enforce the law if:
(1) he or she gives due and proper consideration to the question whether and in what way an initial inquiry into the complaint should be made; and
(2) he or she acts appropriately upon the view which he or she has formed. A range of matters may be pertinent to the member’s consideration of the complaint, depending on the circumstances.
In Scott v Northern Territory  FCA 658 Madgwick J considered if police decisions to investigate were subject to judicial review, and applied Hinchcliffe in concluding they could be.
 It is true that the courts should respect the importance, subtleties, and intricacies of the processes of investigating and prosecuting crimes and should not be quick to intervene. Nevertheless, police officers, like other public officers, are not above the law. They are, in my opinion, expected and legally required to act “according to law and not humour”. While they have a large discretion about the extent, if any, to which they investigate or re-investigate alleged crimes, they must certainly exercise this discretion honestly, in good faith and without caprice. There may well be other limitations on their discretion. I see no reason why, in a proper case, a court ought not intervene to see that police duties, including of investigation, are carried out lawfully. Appropriate exercise of the court’s discretion can well prevent any undue disruption of the orderly and proper work of police officers or of the process of vindication of the criminal law.
 … I have difficulty seeing why, if a court will go as far as Kenny J (as it seems to me rightly) did, the court should not, in a proper case, go further. It ought not be seen as only “policy decisions” that, while preserving real respect for the proper authorities’ capacity to manage a police force, the courts might investigate. Australian experience of the last 20 or 30 years does not support the proposition that all is necessarily well in every police force in the country. Citizens in my view are entitled to look to the courts for assistance in having police do their duty in considering whether to make further inquiries. Different considerations may apply once prosecutions have been launched in a court, but obviously different questions and a different and now well-known framework of legal analysis, founded on preventing court processes being used as a means of injustice, are then involved: see Jago v District Court(1989) 168 CLR 23 and many subsequent cases.
 There is, however, as it seems to me, nothing unlawful in a police officer bona fide determining, where there is some proper material to support the view, that one or more crucial witnesses are unlikely to be believed by a jury, and on that account to cease an inquiry. It must happen frequently in police work. In the case of a very serious crime, such as the various applicants allege here, one would usually expect that such a determination would not be made without interviewing the witness(es) concerned. Nevertheless, unusual circumstances may exist such that a police officer might reasonably come to the view that the matter is not worth investigating further or taking to court.
In O’Malley v Keelty (2005) 148 FCR 170, Mr O’Malley complained that his phone had been tapped for years, and asked the AFP to investigate. The AFP concluded there was no evidence of this, and that in any event, assuming such offences had actually occurred the breach would have been relatively minor with a likely low penalty, and so was a low priority for investigation. The Court declined to order further investigation. At 179 – 180 Madgwick J said:
Organising and assigning priorities in a modern police force are patently complex, difficult, and likely politically controversial matters. Courts should exercise very considerable restraint before intervening in such an area. But a court should in proper cases act to ensure that police forces and their commanders are not, in their dealings with complainants, beyond the necessity to deal lawfully and not according to whim with the concerns of citizens, no matter how humble.
Nevertheless, a court cannot and should not compel a police force to investigate every breach of the law. There are many mysteries in this world. Some of them involve possible commissions of crime. It is not, however, the responsibility of police officers to investigate all of them. Indeed, the role of the police is not to investigate whether, at large, there has been a breach of the law. Rather, their duty is to investigate whether there has been a breach of the law for which an identifiable person might be convicted if prosecuted.
…it is clear that a reasonable and honest police officer might consider the matter to be of such low priority as to warrant the devotion of no further resources to it.
(It’s worth noting that at the end of that case, the Court prohibited Mr O’Malley from commencing any further legal proceedings on this topic unless the application was settled by a lawyer who certified that the proceedings were reasonably and properly taken, or if a judge gave leave for him to do so.)
We also see the original powers doctrine affirming the broad discretion of the police to decide how they will police demonstrations and other public-order events: Wright v McQualter (1970) 17 FLR 305; R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board  QB 458; Commissioner of Tasmania Police; Ex parte North Broken Hill Ltd (1992) 61 A Crim R 390; R v Chief Constable of Sussex  2 AC 418.
The original powers doctrine is reflected also in the employment status of police (see Joseph Carabetta ‘Employment status of the police in Australia’ (2003) 27 Melbourne University Law Review 1; Enever v The King (1906) 3 CLR 969), and in the rule that a power of arrest based on reasonable grounds to suspect (or believe) can’t be exercised by mere order and requires a police officer to personally suspect (or believe) the person arrested committed the relevant offence: O’Hara v Chief Constable of Royal Ulster Constabulary  AC 286.)
The same reasoning has been consistently applied by the Courts to declare police are not liable in negligence to victims of crime or their families, because the conduct of investigations is for the policy and discretion of the police: Hill v Chief Constable of West Yorkshire  1 AC 53; Sullivan v Moody (2001) 207 CLR 562; Brooks v Commissioner of the Police of the Metropolis  1 WLR 1495. (The police are also generally not liable because they don’t owe a duty of care to individual members of the public who might suffer from a criminal’s activities, except where their failure to apprehend or act creates an additional exception risk, such as in Batchelor v Tasmania (2005) 13 Tas R 403.
This broad discretion is the basis for police to caution or warn people for offences, rather than prosecute.
Following on from this, the prosecution — which is typically conducted by the police in the Magistrates’ Court — has an absolute discretion to determine which charges it will lay and proceed with. (In summary criminal proceedings, police officers file charges in their personal capacity as a constable, not in the name of Victoria Police, the State of Victoria, or the Crown: Kirsch v Dolman (2001) 123 A Crim R 331 at 336 – 7; Munday v Gill (1930) 44 CLR 38 at 86; Perkins v County Court (2000) 2 VR 246 at .)
Prosecutorial discretion is not generally susceptible to judicial review, mainly for policy reasons. In Likiardopoulos v The Queen (2012) 217 A Crim R 539 at , French CJ suggested several of those reasons:
- To maintain the both the reality and perception of judicial impartiality;
- Maintain the separation of powers between executive decisions to commence prosecutions, and judicial power to hear and determine criminal proceedings;
- It is not the function of Courts to conduct such reviews, and they are often not resourced or experienced in so doing.
Similarly, the decision to lay or proceed with charges is not amenable to judicial review: Barton v The Queen (1980) 147 CLR 75; Maxwell v The Queen (1996) 184 CLR 501 at 534; R v McCready (1985) 20 A Crim R 32 at 39; Chow v DPP (1992) 28 NSWLR 593; Davy v The Queen (2011) 207 A Crim R 266 at .
Just last week, the High Court referred to these principles when it pithily stated in Magaming v The Queen  HCA 40 at :
It is well established that it is for the prosecuting authorities, not the courts, to decide who is to be prosecuted and for what offences.
The effect of these discretions
This means that police officers have an independent and individual discretion to determine which offences they investigate, and what charges they lay. As a matter of law, they cannot be directed how to exercise that discretion because … well, because it’s a discretion.
In practice, Victoria Police provides policy and other directions to police officers about how they should proceed. That’s not necessarily a bad thing, because it promotes some consistency and reduces the potential for caprice and whim. (As a matter of law, individual police could refuse to toe the line, but the Chief Commissioner might have something to say about paying any costs incurred as a result…)
Similarly, although judicial officers might express their views about which charges should and should not be brought, they cannot compel the prosecution to lay or withdraw particular charges.
Once an offence is before the Court, it is obliged to hear and determine the case.
So when magistrates have jurisdiction to hear a case, and it’s properly before them, it is their duty to deal with it. They have no power to remit the case for hearing to a court outside their jurisdiction: Ex parte Punch (1915) 32 WN (NSW)
So too, magistrates have no right to decline to exercise jurisdiction. If they have jurisdiction they are bound to exercise it: Ex parte Mylecharane (1898) 19 LR (NSW) 7; 14 WN (NSW) 125.
This means, unless the prosecution consents, the Court is obliged at law to consider and determine the charge.
So generally, any diversionary system needs whoever brings the charge to agree to it. This was certainly the position with the diversion program before it receives the statutory basis it now has. It also applies to the Ropes program in the Children’s Court.
The reason these programs require police consent is because as a matter of law, the prosecution is entitled to insist that the courts adjudicate the charge. Consent to jurisdiction is a formal way of the prosecution waiving that legal right, and freeing the Court to take a different pathway.
I know that sometimes lawyers complain about the police declining to exercise their discretion. It’s easy to forget how often the police do exercise discretion though. In any given year, the average police officer probably observes many hundreds of acts that might constitute criminal offences. Only some might result in them doing something. Sometimes, they informally warn a person; other times, they use the discretionary powers I’ve been discussing and use the various formalised policy cautioning programs; or, they might compile a brief, yet recommend no prosecution because it’s not in the public interest, or a relatively minor offence that doesn’t justify the public expense of a court hearing.
That’s not to say that discretion is always exercises when it should be, or appropriately. I’ve known police who actively avoided dealing with offences they should have acted upon. I’ve known police to decline to exercise their discretion based purely on emotion. I suspect that education would go a long way to addressing that, but ultimately, when people have the power to decided things, other people won’t always agree with them.
In the unjustifiable cases, I think there might be a remedy. Earlier, I said that prosecuting decisions are not amenable to review. But there’s no authority on a police decision to recommend or refuse diversion. It could be that it’s reviewable under the Administrative Law Act 1978. If you look at the meaning of ‘decision’ and ‘tribunal’ in s 2, it seems at least arguable that a police decision about diversion is open to review if the decision maker took into account irrelevant considerations, or failed to take into account relevant decisions.
Understanding something about the diversion program probably helps when considering if a diversion recommendation should be made (and accepted by the courts).
Diversion commenced as an informal pilot scheme in 1997, introduced by Deputy Chief Magistrate Robert Kumar. Its purpose was to divert first-time offenders out of the formal justice system;to provide restoration to victims, and;to rehabilitate offenders within the community. (I’m sure there used to be guidelines for the scheme that incorporated these purposes, available in police internal documents as well as industry publications like Nash’s Victorian Courts … but, I can’t find them any more. The best I can find about these initial purposes is in the Springvale Monash Legal Centre’s discussion paper and the Court Diversion Program Evaluation overview and final report on the criminal justice diversion scheme.)
In any event, my memory is that the old guidelines used to expressly say that diversion was only appropriate for “minor offences”, in contrast to the current scheme’s legislative provisions in Criminal Procedure Act 2009 s 59 and the Court’s eligibility guidelines. The only appellate Victorian considering diversion is Rumbiak v Hough  VSC 95, dealing with s 128A of the Magistrates’ Court Act 1989. That essentially endorsed the necessity to comply with the statutory provisions, and also accepted that a magistrate’s decision to grant or refuse diversion might be subject to judicial review. (The position in the UK seems to be the same, with judicial review of cautions and refusal to withdraw them in two cases: R v Metropolitan Police, Ex parte Thompson  1 WLR 1519 and Lee v Chief Constable of Essex Police  EWHC 283 (Admin). (Hat tip to Dan Bunting on the UK criminal law blog for those cases.)
Similar South Australian provisions were considered in Crockford v Adelaide Maigstrates Court (2008) 100 SASR 195 at  – ; HT v Police (2005) 91 SASR 329 at ,  – , where the Supreme Court held that the Magistrates’ Court couldn’t be bound by non-statutory guidelines when exercising its discretion to grant or refuse diversion. When diversion is considered and granted general deterrence is not typically the dominant consideration: Miller v Burgoyne (2004) 150 A Crim R 7 at .
The United Kingdom has a similar system of cautions (though tweeters will know there’s been some recent outrage over their use there), with detailed guidance for prosecutors on the CPS website, and the Ministry of Justice.
Another good consideration a colleague of mine helpfully suggested was the real scope for the prosecution to have significant influence over the result from diversion. Police informants usually recommend program conditions, and the courts often act on those recommendations. It’s not always the case that the police have the same degree of influence for charges that proceed to determination.
In short, the prosecution can decide what charges it wants to bring before a court, and if it wants a decision or not. The court can only decide what is before it, and must do that, unless the prosecution consents to something else.
In other words, it’s a system of checks and balances.
It’s not always perfect, but there are some remedies if the police don’t want to consider diversion, or the courts don’t properly consider a recommendation. More often than not though, reasonable minds might differ about the proper outcome, which is where a bit of negotiation and persuasion is often the best way, rather than recourse to strict legal remedies.