The Catholic Commission forJustice and Peace, an excellent Civil Society organization that we have partnered with since coming to Lilongwe have been running another training session on diversion this week over two days, this time with police officers and magistrates who will be, unarguably, the most important players in assuring the success of this innovative pilot project. As I have previously mentioned Magistrates are the lower court judges in the legal system. There are a number of different level Magistrates and they are lay people, sometimes with little to no legal training before they take up their posts. They have a wide range of powers and unlike District Court Judges in Ireland do not have a limited sentencing power and the higher level magistares can sentence for all offences apart from Rape, Murder and Treason. Unfortunately only 5/6 magistrates attended the training session with the majority attending being police prosecutors or investigators although those present were quite vocal during the session.
Mr Pacharo Kayira, of the Directorate of Public Prosecutions and our informal mentor, set out the legal basis for the diversion project from the laws of Malawi to the group in the first session in a lecture on the Prosecution Guidelines for diversion. Mr Kayira completed his masters in International Human Rights law in Lund University Sweden in 2006 and wrote his masters thesis on the topic of “The Right to Fair Trial: Malawi’s Quest to Meet International Standards”. He was a key author of a number of chapters of the August 2011 OSISA report “Pre-trial detention in Malawi: Understanding case flow management and conditions of incarceration”. He is also a key member of staff of the Directorate of Public Prosecutions and so has been an invaluable asset to our project in its early stages as a human rights advocate and a public prosecutor.
He stated that the legal basis for diversion was found in a number of Malawian provisions. Section 13 of the Constitution mentions amicable resolution of disputes, in addition section 161 of the Criminal Procedure and Evidence Code also promotes reconciliation. Finally the Child Justice Act has comprehensive provisions on diversion but only in respect of child offenders under 17. However it must be noted that this new diversion project is separate from the Child Justice provisions and will not be utilized in conjunction with it. Finally he highlighted that the new Local Courts Act (2010) has sections on the settlement of issues outside of the formal justice system. He then went on to discuss the primary purposes of diversion, which he set out as rehabilitation and reparation, and the secondary purposes of the project, that is that the offender does not gain a criminal record, which will effect his future, educational, so that the offender looks to the reasons that they committed the offence and finally (and most importantly for our project) it will lesson the caseload of the formal Criminal Justice System which is currently swamped with small offences.
The criteria for diversion was set out as follows:
1. Diversion must be in the best interests of the public
2. It must be in the best interest of the Criminal Justice System
3. It must take into account the views of the victim
4. The offence must not be serious (examples included theft of a chicken, a sugar cane or corn maize or a minor assault)
5. Offender must accept full responsibility for their actions and agree to the terms of the diversion
He then went on to discuss the 6 stages of diversion which he noted could be adopted at the pre-trial stage (which I would argue is the only real diversion from the formal justice system) where an offender could be cautioned and released, at the pre-sentence stage where the trial has commenced but before sentence and finally at the post sentence stage where it becomes almost a part of the sentence itself. The 6 stages were set out as follows:
1. Commission of the Offence
2. Evaluation and consideration for diversion (prosecution driven but could informally be pushed by the paralegals who have also been trained in this project)
3. First Court appearance and adjournment for diversion
4. Diversion interview and agreement (where no agreement prosecution continues)
5. Monitoring compliance
6. Completion of diversion
· Compliance report reviewed
· Offender is released without charge or
· Prosecution proceeds where offender non compliant
The next section discussed the aggravating and mitigating factors, which should be considered when looking at diversion. Most of these would be similar to those you would use in a plea in mitigation or that the prosecution would put to the court on sentencing although two noted differences in sentencing here are that the court is reluctant to take into account health issues unless they are exceptional and medically certified (very rare, especially if someone has spent a period of time in prison awaiting sentence) and family responsibility, unless there is proof of exceptional hardship as the court notes that every family will suffer from hardship if the main wage earner or carer is imprisoned and that the offender should have considered this before committing the crime. Finally it was noted that the conditions of the diversion agreement should be proportional, achievable and appropriate and that the offender can be referred for other restorative justice programmes such as counseling or community service (although how a low level offender would afford to pay for these is unclear).
I don’t think it would be fair to promote this project, although innovative, without speaking about a number of areas in which it could potentially fail to be effective. I would make a brief comment on stage 4 of the process, which I believe may be the blocking point for the diversion project. The Diversion interview must be presided over by a diversion officer who must be trained in diversion, if the police station has no police officer trained then it is my understanding that the process will stall at that point unless the offender can be brought to another station where an officer is trained. However this will be more costly and will necessitate the police officer in the first station to have faith in a process they may have never heard of before. In addition for stage 6 to be completed a compliance report must be written and reviewed, this again needs a diversion officer to be very proactive and it may be more work intensive that just prosecuting a case in the formal fashion and I think that work will need to be done on the attitudes of police officers towards offenders before this will be preferential to them than regular prosecution. Finally I would foresee that if there isn’t proper monitoring of compliance then an offender could be stuck in the system for a longer period of time than it would have taken to go through the formal system if they are ever properly diverted at all.
Particularly progressive aspects of the program include permission for the offender to have a support person of their choice present for the stage 4 interview, a mention that financial difficulties should be taken into account as a mitigating factor (quite a controversial aspect), discussions are on a without prejudice basis, if the offender admits other offences they must be passed to another officer and they must be read their rights and cautioned. Whether these important safeguards are adhered to remains to be seen but will be critical to the success of the project.