Diversion from Prosecution for Young People in England and Wales − Reconsidering the Mandatory Admission Criteria

Introduction

The United Kingdom Coalition Government recognized in the Green Paper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (Ministry of Justice, 2010) that the rigid out of court disposal system provided by the Crime and Disorder Act 1998 (CDA) had needlessly drawn too many young people into the criminal justice system, regardless of their circumstances or the nature of any offence committed. Given this encouraging recognition, it was anticipated that any subsequent legislation would re-consider the mandatory pre-conditions for an out of court disposal.

In the event, the resulting legislative initiative, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), adopted the pre-existing principle that a young person must first make an admission to the commission of an offence in order to gain eligibility for diversion. Thus, despite the laudable intentions expressed in the Green Paper, and LASPO providing some relief from the rigours of the CDA, the statutory requirements still retain a significant restriction on diversion. The aim of this article is to explore whether that restriction is justified. It will be argued that the mandatory admission criterion that was incorporated into LASPO seemingly without question is an onerous and sometimes unhelpful pre-condition for many young people who commit low level offences. It is perhaps one of the primary reasons for young people entering the formal criminal justice system unnecessarily.

The Benefits of Diversion

Diversion from prosecution by way of an informal warning or formal police caution for a young person who has committed a low level offence has been practised since the creation of organized police forces and was first documented in 1858 (Steer, 1970: 55). It is often a constructive and pragmatic response to offending by young people when a formal prosecution is unnecessary (Lord Bingham, R v Durham Constabulary and another [2005] UKHL 21:33) and the practice is enshrined in international law in Resolution 40/33 United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (‘The Beijing Rules’, United Nations General Assembly, 1989).

The conventional notion of ‘diversion’, however, requires careful consideration and should be treated with some circumspection (Dingwall and Koffman, 2007). Formal pre-court disposals, while offering a mechanism for avoiding prosecution, still result in a recordable criminal sanction and subsequent criminal record, which may not necessarily be immediately expunged (Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975), and there is some concern that they are issued when an informal disposal would be more suitable, or in order to secure a recordable detection in the absence of sufficient evidence (Reid, 2013). Formal diversion from the Youth Court thus frequently falls short of diversion from the criminal justice process in its entirety (see for instance Goldson, 2000) and, paradoxically has arguably resulted in net widening and the escalation of young people into the criminal justice system (Bateman, 2002).

Notwithstanding the limitations of ‘diversion’ in this sense, the benefits of out of court disposals are still considerable. A young person is spared both being photographed and fingerprinted post charge and having their DNA taken and retained. They also avoid being exposed to the rigours of the Youth Court and having a recordable conviction and are further excused the demands of any sentence imposed. There is also evidence to suggest that diversion has a positive effect on reducing recidivism (Wilson and Hoge, 2013). Within this context it is regrettable that young people who fail to make an admission under LASPO are deemed ineligible for any diversionary measures and are excluded from the benefits (or otherwise) of such a course of action.

The Admission Criteria in England and Wales

From the first collation of statistics in 1954, an admission of some form to an offence has been mandatory for a young person to receive an out of court disposal. Home Office Circulars (Home Office, 1985, 1990, 1994) all stipulated that an admission was an essential element of the cautioning process, with Circular 14/1985 stating that not only should a young offender admit all or some of the facts, but also ‘recognise his guilt’ (Home Office, 1985: 1).

This rigorous test was approved in the case of R v DPP Ex p. B [1993] 1 All E.R. 756, where the court held that a 12 year-old girl with no previous convictions, suspected of committing the offence of theft, was not eligible for a caution for the singular reason that she failed to make an admission. The court found that her young age, previous good character and the published guidance on the ‘positive advantages for society as well as the individual in using prosecution as a last resort’ (Home Office, 1985: 1) were outweighed by her reluctance to admit the offence. Likewise, failures by the police and the Youth and Community Service to consider any wider issues surrounding her personal circumstances, in the spirit of the relevant Home Office Circulars, had no bearing in the absence of an admission.

Similarly, the court in R v DPP Ex p. B made no inquiry or distinction between a young person who wilfully refused to make an admission and a young person who may have felt unable to make an admission. In this case a 12 year-old girl had denied the offence despite overwhelming evidence. Factors which may have contributed to her denial, such as her young age, immaturity, fear of the consequences of making an admission either of the criminal justice system or parental disapproval, or inadequate knowledge of criminal processes, were considered less important than whether an admission had been made.

This rationale was incorporated into the CDA and the Final Warning Scheme Guidance for Police and Youth Offending Teams 2002, as amended 2006 (Home Office, 2006), which was promoted as a radical departure from long established practices (Home Office, 1997). By adopting, however, the prevailing policy that an admission was a mandatory prerequisite for diversion (a reprimand or final warning), in some respects the CDA constituted not ‘a brand new diversionary scheme which leapt on to the statute book’ (Lady Hale, R v Durham Constabulary: 37) but a continuation of the previous precondition that to be diverted from formal proceedings (by way of a police caution), a young person must first admit their guilt.

The CDA was the subject of considerable academic critique, described as having an ambiguity of principle (Fionda, 1999), representing institutionalized intolerance (Muncie, 1999), potentially consolidating delinquent identities (Goldson, 2000), expurgating youth justice knowledge (Jones, 2001), being punitive and controlling in principle and practice (Evans and Puech, 2001), accelerating young people through the system and producing net widening effects (Bateman, 2002) and comprising a strange blend of authoritarianism and liberalism (Fortin, 2009).

Despite the depth of such critique, however, there was little consideration of the fact that in one significant respect the CDA brought about no change at all. Eligibility for diversion by either a caution or caution plus under the previous arrangements, or via a reprimand or final warning under the new provisions, was still wholly reliant on an admission by a young person to an offence. LASPO, the successor to the CDA, has seemingly perpetuated this policy without any consideration as to why an admission is necessary for an out of court disposal and, as such, should be subjected to similar critique.

The ‘Amplified’ Admission Criteria

It is conceivable that young people have been subjected to admission criteria that is ill-defined, unduly onerous and applied more rigorously than initially intended. Section 65(1)(c) of the CDA required simply that ‘the offender admits to the constable that he committed the offence’. This test was seemingly made more rigorous, however, in the Final Warning Scheme Guidance for Police and Youth Offending Teams 2002 (Home Office and Youth Justice Board, 2002) which at paragraph 4.7(c) stated: ‘There must be an admission of guilt’ and, moreover, paragraph 4.12 provided:

A reprimand or warning can be given only if the young person makes a clear and reliable admission to all elements of the offence. This should include an admission of dishonesty and intent, where applicable.

Unhelpfully, the 2002 Guidance also described the admission criteria as ‘the young person admits the offence’ (Home Office and Youth Justice Board, 2002: Annexe A 3(iii)) and the ‘young person admits a specific criminal offence’ (Home Office and Youth Justice Board, 2002: Annexe B).

The substantially more rigorous admission criteria provided by the 2002 Guidance was considered in R. (on the application of M) v Leicestershire Constabulary [2009] EWHC 3640, with the court finding that the new Guidance had considerably ‘amplified’ the original statutory admission criteria. Although this amplification was perhaps intended to ensure the quality and consistency of decision making and safeguard the rights of young people by ensuring any admission made was reliable, its practical effect was to impose a complex and demanding precondition for young people (Evans and Puech, 2001; Gillespie, 2005).

A New Approach under LASPO?

On election in 2010, the UK Coalition Government appeared to recognize that out of court disposals are particularly important, accounting for over 40 per cent of responses to youth offending. It further criticized the automatic escalation of young people into the youth justice system and proposed to simplify diversionary procedures (Ministry of Justice, 2010: 68).

Consistent with this position, section 135 of LASPO repealed reprimands and final warnings and replaced them with a ‘youth caution’. The changes were significant: there is now no limit to the number of pre-court disposals which are available, even where a young person has previous convictions. Nevertheless, LASPO (section 66ZA(1)(b)) continues to stipulate that a youth caution may only be issued if a young person (Y) ‘admits to the constable that Y committed the offence’. Moreover, the 2013 Guidance for Police and Youth Offending Teams (Ministry of Justice and Youth Justice Board, 2013a: para. 4.6) has also adopted the rigours of the amplified admission criteria and states: ‘A Youth Caution can only be given if the young person makes a clear and reliable admission to all elements of the offence. If a defence is raised a Youth Caution should not be given’.

The inclusion of this mandatory requirement is arguably incompatible with the expressed intention of promoting a ‘more flexible response’ to youth offending and encouraging greater use of out of court disposals for young people who commit low level offences (Ministry of Justice and Youth Justice Board, 2013a: para.1.6). The same requirement also fails, as its predecessor did, to offer any guidance on what could be considered a ‘clear and reliable’ admission from a young person.

Although it is a common expectation in many jurisdictions that a young person should either admit to an offence, or acknowledge their wrongdoing, in order to qualify for an out of court disposal, LASPO is especially rigorous in requiring a clear and reliable admission to all elements of the offence, at an early stage in the proceedings. There is precedent in other jurisdictions that the lesser requirement of an ‘acceptance of responsibility’ is sufficient for an out of court disposal to be considered (see, for example, Section 10(2)(e) Youth Criminal Justice Act 2002 in Canada and Section 18 Children Act 2000, in Ireland).

Alternatively, in the State of Illinois in the USA, the necessity for an admission is determined by the gravity of the offence, relevant antecedents and the eventual disposal, with an admission not necessary for an informal caution or ‘informal station adjustment’, and necessary only if a formal caution or ‘formal station adjustment’ is to be issued (705 ILCS 405/5-301). This is particularly advantageous for children and young people in cases where minor offences have been committed. Furthermore, legislators in New Zealand − anticipating that young people may on occasion find it difficult to understand or acknowledge their wrongdoing − have provided supportive measures to encourage young people to ‘accept responsibility for their behaviour’ (Children, Young Persons and Their Families Act, 1989: Section 4(f)(i)). The rigorous LASPO requirements in England and Wales are seemingly out of step with the more pragmatic (and progressive) practices elsewhere.

Admissions and the Welfare Principle

The opportunities available to children and young people to make an admission under the CDA and now LASPO are narrow, and are often only available in one police interview. The inflexible mandatory admission criterion is in tension with other statutory and non-statutory duties decision makers must comply with when determining whether a young person has satisfied the criterion for diversion. These include considering the welfare of a young person and what outcome is in their ‘best interests’ (Section 44 Children and Young Persons Act 1933 and Article 3(1) United Nations Convention on the Rights of the Child, (United Nations General Assembly, 1989)); considering what outcome best prevents criminalizing a young person and avoiding their escalation through the criminal justice system (Sentencing Council Guidelines, 2009: 1.3); and also determining what outcome best prevents a young person committing further offences (section 37(1) Crime and Disorder Act 1998).

Such anomalies were apparent in R. (on the application of F) v Crown Prosecution Service and Chief Constable of Merseyside Police [2003] EWHC 3266, where F answered ‘no comment’ in his single police interview and was consequently deemed ineligible for a reprimand. Post-charge, however, he requested another interview so that he could make an admission and receive an out of court disposal. The police refused to offer a second interview, arguing that they had no duty to do so under Code C paragraph 16.5 of the Police and Criminal Evidence Act 1984 (‘PACE’). The court upheld the police decision, declaring that the official Guidance encouraged ‘early frankness’ and a reprimand or final warning should be given post-charge only in exceptional circumstances if a satisfactory admission is not made in the first interview (Home Office and Youth Justice Board, 2002). The court rejected the argument made on behalf of F, that only one opportunity to make an admission may be unduly restrictive for some young people, especially for those with no prior experience of the criminal justice system and subject, at the time of interview, to the pressures of arrest and detention in police custody (often at an unsocial hour). The court prioritized expedition and early frankness to the detriment of whether F’s welfare was best served by receiving an out of court disposal.

As LASPO and the Guidance (Ministry of Justice and Youth Justice Board, 2013a; Ministry of Justice and Youth Justice Board, 2013b) is intended to afford decision makers greater flexibility − and increase the number of young people receiving out of court disposals − the ‘early frankness’ provision needs to be reconsidered. Decision makers should also be encouraged to consider not just whether a timely admission has been made, but additionally, what outcome is in the best interests of the young person in accordance with their other obligations concerning the welfare of children and young people.

The prioritization of the admission criteria over welfare considerations was also apparent in R (on the application of O) v DPP [2010] EWHC 804), where the court upheld the refusal by the Crown Prosecution Service (CPS) to offer a final warning to a 14 year-old child (O). O had accepted he had been in possession of a bladed article, but had also claimed, somewhat incredulously, that he had only just found it and was going to throw it away at the earliest opportunity, which raised a defence in law. The police offered a final warning in the mistaken belief that O had made a satisfactory admission; however, the CPS subsequently withdrew the offer and O sought to argue that he had a legitimate expectation that he would receive a final warning. The court held that despite the initial offer of a final warning, which ordinarily would have created a legitimate expectation, (Wells, 2011), this did not override the fact that O’s account to the police raised a defence, even if he believed he was making an admission. O’s willingness to accept a final warning and the considerable benefits this afforded him, were outweighed not by the gravity of the offence, his antecedents or any concerns about any future offending, but solely because the responses he made in his police interview, perhaps unknowingly, raised a defence in law.

It would no doubt be administratively burdensome to re-interview young people who fail to make an admission and then, post charge, seek to change their position in order to secure an out of court disposal. It might also be deemed undesirable to enable children and young people guilty of offences but who refuse to admit their guilt, to subsequently benefit in the same way as if they had made appropriate admissions at the outset. But such objections are only relevant to the extent that an admission is a prerequisite to an out of court disposal.

In the above cases, F was only 15 years of age, had only one opportunity to provide an account to the police, and was perhaps considerably more reliant on legal advice than an adult would have been when he answered ‘no comment’ in his police interview. His decision not to answer police questions − if indeed it was a decision made by him as distinct from for him by his legal adviser or appropriate adult − was reached whilst subject to the pressures of arrest and detention and perhaps without understanding the consequences. Similarly, O was only 14 years of age, the legal elements of the offence of possession of a bladed article were most likely unknown to him, he had only one opportunity to provide an account, and he did so without the benefit of any legal advice.

The decisions to prosecute F and O, therefore, focused entirely on whether an admission had been made at the earliest opportunity and appeared to overlook what outcome was in their best interest. These cases also raise the question as to whether the decision to admit or deny an offence, or exercise a right to silence, is in fact made by the young person, or by a legal adviser or appropriate adult. The CDA and now LASPO, however, hold the young person entirely accountable for this decision.

Youth Conditional Cautions – Abandoning ‘Early Frankness’

The recently introduced youth diversionary disposal, Youth Conditional Cautions (YCCs) (Crime and Disorder Act 1998 (as amended by the Criminal Justice Act and Immigration Act 2008 and LASPO) does not require an admission to an offence by a young person in a police interview before a decision maker might determine that a YCC is an appropriate disposal, but rather requires an admission only at ‘the time the youth conditional caution is given’ (Ministry of Justice, 2013: paras. 14.2−14.3).

This is a reversal of previous practice concerning how young people are deemed eligible for an out of court disposal, and it abandons entirely the need for ‘early frankness’ or for a young person to acknowledge guilt at the ‘earliest opportunity’. Decision makers can offer a YCC if they are satisfied that: there is sufficient evidence; there has been no denial or a defence raised; the offence is not deemed too serious; the young person does not have prohibitive antecedents and it is in the public interest to offer a YCC.

Remarkably, the YCC criterion results in a significant anomaly between the two diversionary regimes to which children and young people are now subject, and begs the question as to why ‘early frankness’ is not necessary for a YCC, but is for a youth caution? This is especially perplexing given that a YCC comprises a disposal for offending deemed too serious for the purposes of a youth caution.

The Complexities of What Constitutes a Clear and Reliable Admission

The criminal law makes few concessions to the age of an accused (Ashford et al., 2006: para. 6.13) and neither the CDA or LASPO make any allowance for the probability that children and young people are likely to have limited knowledge or understanding of legal complexities. Young people are often confronted in police interviews with questions concerning intention, dishonesty, knowledge, recklessness, foreseeability, joint enterprise, duress and self-defence. Section 34 of the CDA, by formally abolishing the principle of doli incapax − the rebuttable presumption that a young person aged between 10 and 14 years was deemed incapable of forming the intent to commit an offence − accentuated this problem (McDiarmid, 2013).

In determining whether or not a young person has made a clear and reliable admission, decision makers are faced with a myriad of subjective and objective tests. Young people who commit an assault can have their age, intellectual capacity and maturity considered when assessing whether they acted reasonably and/or whether they acted in self-defence (R v Shannon (1980) 71 Cr App R 192). Likewise, if a young person claims they acted under duress, their age is taken into account when considering the reasonableness (or otherwise) of their behaviour (R v Bowen [1997] 1 WLR 372). The statutory admission criterion, however, assumes that young people adequately understand complex legal issues and are sufficiently competent to articulate a clear and reliable admission to all elements of an offence. This requirement is ‘a dangerous blindness to the incapacities of childhood’ (Fionda, 1999: 39) and contrary to Lord Diplock’s view that ‘to require old heads upon young shoulders is inconsistent with the law’s compassion to human infirmity’ (Director of Public Prosecutions v Camplin Appellant [1978] AC 705-727:717). Despite the complexities of determining what is a clear and reliable admission for the purposes of diversion, however, the courts are ordinarily reluctant to interfere with decisions not to offer young people an out of court disposal unless the decision is deemed perverse or irrational (R v Chief Constable of Police Ex p. L and R v DPP Ex p. B [1993] 1 ALL E.R. 756; R. (on the application of A) v South Yorkshire Police [2007] EWHC 1261 Admin; D v Commissioner of Police of the Metropolis [2008] EWHC 442 (Admin); Stone, 2007).

Given that law and policy provides that an admission − either at the outset of the proceedings for a youth caution or at a later stage when a YCC is issued − is necessary, then a reconsideration of what constitutes an admission from a child or young person is desirable. Requiring an admission for the purposes of diversion might be satisfied by securing no more than an acknowledgement of wrongdoing, or as Ireland and Canada prescribe, an ‘acceptance of responsibility’ by a young person. LASPO appears unduly onerous in demanding a clear and reliable admission to all legal elements of an offence, especially where there is (a) sufficient evidence for a realistic prospect of conviction, (b) a young person has not denied an offence and (c) they have expressed a willingness to accept a formal diversionary package.

Arrest, Detention and Admissions

For children and young people suspected of committing a low level offence and who express from the outset a willingness to cooperate fully with the police, their arrest and detention is unnecessary and arguably even unlawful (Cape, 2011: 2.11). Furthermore, the quality of any responses that a young person may make in a police interview must be considered in light of the conduct of the police interview and the nature and type of questions put to them. In R. (on the application of M) v Leicestershire Constabulary [2009] EWHC 3640 (Admin) the court was highly critical of the aggressive and at times oppressive nature of police questioning of M − a 13 year-old − and reminded decision makers that the PACE Codes of Practice recognized that the answers young people provide in police interviews can be unreliable if made under pressure, or as a result of confusing or leading questions.

Equally there is no explicit legal requirement that any admission made to a constable − for the purposes of diversion − must be made while the child or young person is under arrest and detained in custody. Despite this, the current default position is that the majority of young people − including those with few or no antecedents − are routinely subjected to such processes. Although detention in custody and interview under caution may be a salutary experience for some children and young people − and, on occasion, used by the police as a form of discretionary deterrence (Brookman and Pierpoint, 2003) − it can also prove to be a very frightening experience (Criminal Justice Joint Inspection, 2011: 5) and may engender an unnecessarily negative perception of the police.

Conversely, there is precedent that an admission made by an adult suspect outside of, or contrary to, a PACE compliant interview might be deemed adequate for the purpose of diversion − (R v Commissioner of Police of the Metropolis Ex P. Thompson [1997] 1 W.L.R. 1519) − and the court has consistently held that where an adult makes a clear and unequivocal admission to an offence it is acceptable for the police to issue a caution, even in circumstances where the admission is not strictly PACE compliant and/or would be rendered inadmissible in formal criminal proceedings (R v Chief Constable of Lancashire, Ex P. Atkinson (1998) 162 J.P.). The CDA and LASPO, however, do not apply similar principles to children and young people, with the consequence that they are routinely arrested, detained in custody and subjected to the formalities of an interview at a police station.

Any erosion of a young person’s PACE rights should not be considered lightly, and the dangers of interviewing suspects outside of a police station are known (Moston and Stephenson, 1993). It also follows, as Kemp et al. (2011:29) observed, that ‘within this new context of pre-charge decision making, the need to ensure the legal rights of children are properly protected within the early stages of the criminal justice process [are] more urgent’. There must, however, be a balance between the benefits of protection under PACE on the one hand, and the implicit problems of undue arrest, custodial detention and questioning of children and young people in police stations, on the other hand.

Legal Advice and Admissions

General practices and procedures concerning children and young people who offend differs considerably to those that apply in the case of adult offenders and, accordingly, the CPS has developed specialist accredited youth lawyers. Remarkably, there are no similar standards and/or accreditation for legal representatives and/or solicitors who advise children and young people in police custody or represent them at court. Indeed, research suggests that law firms routinely deploy inexperienced staff for less serious matters (Baldwin, 1992; McConville and Hodgson, 1993) and it is reasonable to assume that children and young people − especially those charged with low level offences − are disproportionately represented in this way. The implementation of a fixed fee payment structure for advice at the police station and the ‘relentless reduction in the public funding for those who find themselves in need of a criminal lawyer’ (Spiro and Bird, 2010: xiii) can only compound such problems.

There is evidence to suggest that some legal advisers have been known to facilitate admissions from children and young people − in the absence of satisfactory evidence against them − in order to ‘benevolently’ ensure that they are cautioned and spared the rigours of the formal court process (Kemp et al., 2011; Morgan and Stephenson, 1994). There is also evidence that young people themselves may, on occasion, make admissions in the absence of evidence for similar reasons (Hine, 2007). What is incontrovertible, however, is that legal advice is a crucial determinant of the outcome for young people (Lamb and Sim, 2013) and any prospective negative aspects of poor legal advice are outweighed by the known benefits of good legal advice and representation in police custody (Skinns, 2009). This is particularly pertinent in view of the fact that legal advisers are often required to advise, and obtain instructions from, very young children whom they have had no prior involvement with and who have no previous experience of police custody, are distressed by the experience, may have complex behavioural or intellectual difficulties, may be accompanied by hostile or distressed appropriate adults, and who are subject to the routine pressures, time constraints and adversarial nature of the interview process (Coleman et al., 2011; Department of Health, 2009; Evans, 1993; Talbot, 2010).

Inadequate Pre-interview Disclosure and the ‘No Comment’ Interview

An impediment to diversion that is often overlooked derives from legal advice to a child or young person to answer ‘no comment’ throughout their police interview. It is not uncommon for such advice to be a consequence of inadequate disclosure of police evidence to a legal adviser prior to interview. Indeed, despite the principle that acceptance of a caution is inextricably linked with entitlement to informed legal advice (DPP v Ara [2001] EWHC Admin 493), there is a culture of doubt shared by many legal advisers regarding the reliability of police pre-interview disclosure, and children and young people can find themselves at the mercy of such scepticism.

On the one hand, legal advisers are warned that ‘any information that the officer gives concerning evidence against the suspect should be treated cautiously for a number of reasons. In some cases the information may be exaggerated in order to encourage the suspect to confess’ (Cape, 2011: 4.58). On the other hand, Blackstone’s 2014 Handbook for Policing Students advises officers − when preparing for an interview − to consider:

What is the evidence? What evidence should be disclosed immediately? What evidence shall be withheld (at least for the time being)? When will this evidence be disclosed in the interview process? Can withholding this evidence be justified? (Bryant and Bryant, 2014: 497)

Furthermore, the official guidelines (Ministry of Justice, 2013) are conspicuously silent on this issue and they appear to assume that children and young people will, in every case, have the benefit of adequate pre-interview disclosure and, on that basis, will be enabled to make informed decisions as to whether or not to make an admission to the police. Improving the quality of pre-interview disclosure, therefore, may go some way towards offsetting unnecessary ‘no comment’ interviews and, in so doing, secure diversion for a greater number of children and young people who offend.

Admissions and Inducement

The police can understandably be reluctant to explore the possibility of diversion with children and young people prior to an interview, as to do so may expose them to unfounded allegations of inducement. There are significant anomalies the police must contend with.

The official guidance issued by the Ministry of Justice and the Youth Justice Board (2013: para. 4.8) states that:

Young people and their parents/carers or other appropriate adults should have access to information about the options available, including Youth Cautions, so that they can make an informed decision before the question as to whether they admit the offence is put to them.

The courts, however, have strictly adhered to the principle that any admission on which the police rely must be made by an offender before a decision to caution is made (R (Thompson) v The Commissioner of the Metropolitan Police [1997] W.L.R. 1519). Indeed the Police Student Handbook gives a ‘major warning’ (Bryant and Bryant, 2014: 497) that an officer should never disclose an opinion on the likely outcome for a suspect prior to interview, and this warning is applicable to all suspects in custody, including children and young people. The police face genuine difficulties, therefore, in complying with paragraph 4.8 of the official guidance, as to do so can expose them to allegations of inducing admissions (Ministry of Justice and Youth Justice Board, 2013a).

It is quite right that an admission should not be induced under any circumstances. Equally, however, a child or young person and/or their appropriate adult should be aware of the consequences of failing to make an admission in a police interview. The fear of risking allegations of inducement on the one hand, might be a barrier to the police providing practical and objective pre-interview information on the other hand, and it is regrettable that the official guidance fails provide adequate assistance to the police in this regard.

Admissions, Parents and Appropriate Adults

PACE and the accompanying Police Codes of Practice introduced the role of the appropriate adult. The ambiguous definition of this role, however, together with concerns that parents are often unable to fulfil the role adequately (Littlechild, 1998; Pierpoint, 2006), may contribute to children and young people unnecessarily losing the opportunity for diversion.

The court has upheld decisions to allow parents to act as appropriate adults against the express wishes of children and young people (DPP v Blake [1989] 1 W.L.R. 432). This, together with the fear that some young people may have of admitting an offence in the presence of their parent(s) should not be underestimated. This is especially salient for children and young people who inexplicably fail to make an admission in the face of overwhelming evidence against them, especially when diversion is seemingly in their best interests.

In 2002 the Home Office and the Youth Justice Board published guidance that extended the role of the appropriate adult − beyond detention and interview at the police station − to include mandatory presence when reprimands or final warnings were being issued to children and young people (Home Office and Youth Justice Board, 2002: para. 9.14. See also Ministry of Justice, 2013: para. 9.13). Williams (2000) argues persuasively that the supportive role of the parent as appropriate adult defined by PACE, is seriously compromised by the more authoritarian role expected of the parent in order to enhance the force of a reprimand or final warning. More significantly, perhaps, the introduction of the Parenting Order in s.8 of the CDA (Stone, 2003) − which places a parent under a court order for up to 12 months with the possibility of criminal sanctions for non-compliance − might further compromise the supportive role of the parent as an appropriate adult at the police station. Indeed, in facing the prospect of a Parenting Order a parent may well have a personal interest in any police investigation concerning their child that might conflict with their ‘supportive’ role as an appropriate adult (Burney and Gelsthorpe, 2008).

Conclusions

Following the general election in the UK in 2010, the incoming Coalition Government proposed to end the rigid decision making process under the CDA and to extend out of court disposals to more children and young people (especially those who commit low level offences). Under LASPO, however, any failure on the part of a child or young person to make a clear and reliable admission to all elements of an offence at the earliest opportunity continues to hamper the application of diversionary practices, even for the very young and/or those suspected of committing the most trivial offences.

The mandatory admission criterion is a complex and onerous pre-condition for many children and young people to readily comprehend, it can obstruct decision makers in taking account of their statutory welfare obligations and, ultimately, it results in too many children and young people being denied the benefits of diversion. In circumstances where there is adequate evidence that a young person has committed a low level offence and they are willing to accept an out of court disposal, the necessity for an early admission − in order to administer diversion − is questionable.

If, however, an admission is to remain a mandatory element of youth justice diversionary regimes in England and Wales, then replacing the existing rigorous criteria with the lesser requirement that a young person ‘accepts responsibility’ for their offending − as prescribed in some other jurisdictions − should be considered. Alternatively, the YCC criterion − which does not require an immediate admission in a police interview − might comprise a more suitable and effective means of ensuring that children and young people who offend (particularly those who commit low level offences) are not needlessly drawn into the youth justice system for the singular reason that they failed to make a clear and reliable admission to all elements of an offence at the earliest opportunity.