There are ways to avoid a criminal trial, either partially or entirely, temporarily or permanently. This is called diversion of the criminal process. This may take the form of the conversion of a trial into an enquiry with the view to committing the accused to a rehabilitation centre, or an enquiry into mental illness. Put very simply, diversion is an alternative process used to finalise a criminal case outside the formal criminal court structure.
Diversion is often used where the offender is a juvenile. The Child Justice Act 75 of 2008 sets out the procedures and options for diversion for children, when the offence is minor. Several requirements must be met, and the diversion option must be made an order of court. This option can only be exercised before a preliminary enquiry is held, and the magistrate may make certain orders.
There is no specific legislation for adult offenders, but there are prosecutorial directives. The Minister of Justice recently announced that criminal cases should make use of Restorative Justice (RJ) methods (i.e. non-custodial sentences).
The National Director of Public Prosecutions’ Policy Directive No 7 defines diversion as: the election, in suitable and deserving cases, of a manner of disposal of a criminal case rather than through normal court proceedings. It usually implies the provisional withdrawal of the charges against the accused, on condition that they participate in particular programmes and/or make reparation to the complainant. Diversion is preferable to the mere withdrawal of cases as the offender takes responsibility for their actions. Although diversion primarily applies to juvenile offenders, there are other diversion programmes, such as victim-offender mediation and community service, as alternatives to prosecution.
Diversion is inappropriate in the case of murder, robbery with aggravating circumstances, rape or other serious offence. Offenders with a criminal record and those who were previously granted diversion are included only in exceptional circumstances. The following selection criteria serves as a guide to the prosecutor in determining whether or not an offender qualifies for the programme. The accused should:
- Have a fixed address
- Acknowledge liability for the offence
- Be prepared to participate in the diversion programme
- In the case of juvenile offenders, be between the ages of 12-18 years and have a parent or guardian prepared to take responsibility for their attendance and be present at court
A probation officer must screen any candidate for diversion and advise the prosecutor on their suitability. The final decision rests with the prosecutor, who is not bound by the recommendations of the probation officer. Participation in diversion is voluntary and, should the offender not meet all the requirements, the case will not be withdrawn.
The establishment of diversion programmes is primarily the responsibility of the Department of Welfare, but NGOs such as NICRO (the National Institute for Crime and Rehabilitation of Offenders) may be of assistance. After the offender has completed the diversion programme, the social worker submits a report to the prosecutor. If the offender has cooperated and benefited from the programme, the matter is withdrawn. If not, the prosecution will proceed.
The same process applies to the sentencing stage of a trial. If an accused appears to be a suitable candidate for a programme, the court may consider imposing a suspended sentence with participation in diversion a condition of suspension. If the offender does not successfully complete the programme, the prosecutor must apply in the normal manner for the suspended sentence to be reinstated.
The purpose of diversion is to encourage accountability, promote an individualised response to crime, re-integrate the offender back into society, provide opportunity for reparation, identify underlying problems motivating the offending behaviour, and provide education and rehabilitation that prevents less serious offenders from winding up with a criminal record, which can have a considerable negative impact on education and employment prospects, thus reinforcing the cycle of crime.