#15631 - Youth Justice And Restorative Justice - Criminology

CSPS Supervision 7 – Youth Justice & Restorative Justice

I. YOUTH JUSTICE

Easton & Piper – Court orders for young offenders

Using the civil justice system

The policy contexts

• In the past decade there have been changes in diversionary policies and practices such that fewer children and young people are prosecuted and sentenced and more are the subject of community resolutions. P381

• This is at least to an extent the result of governments wishing to reduce the cost of court processing and detention.

The family and re-moralisation

• A trigger for these policy developments was a growing concern abut the role of the family.

• Appears that research on young offenders ‘habitually produces results that point to the adverse effects of certain features of family life’ (Day Sclater and Piper 2000). P382

• None of this proves that there is a decline in moral authority or parental discipline, but these attitudes feed into a belief ‘that the process of change and modernity has gone too far’ and legitimate provisions to make parents responsible for their children’s behaviour.

Anti-social behaviour

• In the 1990s the Audit Commission had flagged up the difficulties for the police in dealing with what they referred to as ‘juvenile nuisance’, the subject of 10-20% calls to the police.

• Anti-social behaviour order became very influential and legitimised introduction of new statutory responses to the behaviour of children and young people.

• Non-criminal deviance and anti-social behaviour began to be dealt with in ways which blur the boundaries of the criminal and civil systems and law. P383

Civil orders

• The civil orders and similar contracts and agreements constituted new tools but they have an ambivalent role: the orders are an alternative court-based method of responding to anti-social and criminal behaviour through the civil justice system and they are also seen as a method of delaying the ‘criminalisation’ of children.

• But these developments have arguably drawn more children and young people within the ambit of state surveillance and may hasten entry into the criminal justice system.

The first new orders

• ASBOs and child safety orders introduced in 1998.

  • Common criterion is that child or adult has acted ‘in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself’ (Crime and Disorder Act 1998, s.1(1)(a)).

• Anti-social Behaviour Act 2003 widened the scope and use of ASBOs, increased the range of the ‘relevant authorities’ who could apply for an ASBO and introduced a presumption that a parenting order is made with an ASBO. P384

• As a result of amendments made by CJA 2003 and Criminal Justice and Immigration Act 2008, a new s.1AA in CDA 1998 added the presumption that an ISO (individual support order) would be made alongside an ASBO for the under 18s ‘in the interests of preventing any repetition of the kind of behaviour which led to the making of the anti-social behaviour.

• By end of 2004, 52% of orders had been given to 10-17 year olds and Youth Justice Board (2006) found that a disproportionate number of the sample – 22% - were from black and minority ethnic groups.

• ASBOs were ineffective if the number of breaches of prohibitions is an indicator.

  • Audit Office found that over half of those in their sample group – 46% of whom were under 18 – breached their order, and a third did so on two or more occasions (Home Office 2007).

• Further issue is the ‘naming and shaming’ of those given orders.

Parenting orders

• Parenting orders have been available since 2000 and are triggered if the child or young person is subject to a range of orders and injunctions, is convicted of a criminal offence, or fails to comply with a school attendance order.

  • Introduced by CDA 1998 and can last up to 12 months.

• Held in R (M) v Inner London Crown Court that a parenting order did not breach either Articles 6 or 8 ECHR because it deemed a parenting order not to be disproportionate, given the pressing social need to address the problems created by juvenile crime and the early research on such orders.

• ASBA 2003 widened the scope of parenting orders.

Parental compensation orders

• PCOs introduced by Serious and Organised Crime and Police Act 2005 which inserted s.13A-13E into CDA 1998. P386

• Relates only to children under 10.

• Act has only been in force since 2006 in ten pilot areas.

Criminal behaviour orders and injunctions

• Legislation related to ASBOs repealed in March 2015.

• Anti-social Behaviour, Crime and Policing Bill introduced power to grant a new injunction ‘to prevent nuisance and annoyance’ (s.1).

  • Breach of injunction allows a Youth Court to impose a supervision order or a detention order. P387

• A criminal behaviour order in s.22 of the Act has been in force since October 2014.

  • May make CBO only on the application of the prosecution and only in addition to a sentence or conditional discharge.

Issues of concern

• We hope that the new orders are used more sparingly and appropriately.

Sentencing options

The youth justice system

• CDA 1998 set up a national and local administrative framework for the youth justice system in England and Wales.

• S.38 imposed duties on each local authority, police authority, probation committee and health authority to provide youth justice services. P388

• Required that each local authority set up inter agency YOTs.

• Also set up national Youth Justice Board to monitor the youth justice system and advise SoS and introduced for the first time in legislation in the UK an aim for the new youth justice system to prevent offending.

The range and use of orders

• Since the implementation of Children and Young Persons Act 1993, the youth court ‘makes an order upon a finding of guilt’ in relation to those minors who have been successfully prosecuted.

• On a first appearance at a youth court a minor is normally given a referral order which entails referral to a multi-disciplinary Youth Offender Panel.

  • This Panel agrees a contract of activities with the young offender and might be seen as an attempt to include a more welfare-oriented decision-making process.

  • On subsequent appearance at court the full range of disposals is available to the magistrates.

• Situation very different in Northern Ireland.

Use of orders

• The past decade has seen a fall in the numbers of young people given a custodial sentence.

• In 2014/15 the average population (under 18) in custody had fallen by 62% since 2004/5, and the number of young people sentenced to community sentences during that period also fell by 63%. P390

• The majority of juveniles aged 15-17 years old in prison are under sentence.

Sentencing guideline

• At the end of 2009 the Sentencing Guidelines Council (SGC) published a definitive guideline on sentencing young offenders in the context of the introduction of the youth rehabilitation order.

• Guideline included the important statement that ‘even within the category of youth, the response to an offence is likely to be very different depending on whether the offender is at the lower end of the age bracket, in the middle or towards the top end; in many instances, the maturity of the offender will be at least as important as the chronological age’.

• Also drew attention to requirement to ‘have regard to’ the welfare of the young offender and spelt out what this entailed.

• Guideline also addressed the question of the amount of impact on the sentence that the age of the offender should have. P392

Assessment and information

• A new assessment framework is in the process of being rolled out, but YOTs have for some time used the assessment tool Asset at various stages to determine what form and quantity of intervention is required to reduce the risk that the child reoffends.

• Children’s Services use the ‘common assessment framework’ so Asset is a separate tool from that used in relation to local authority child protection duties.

• An Audit Commission report (2004) concluded that Asset was usually completed to an acceptable standard and ‘is a major step forward in providing a comprehensive risk and needs assessment’.

• AssetPlus has now been published and is due to replace Asset in a phased introduction from late 2015. P393

  • It is based on research and will give more weight to the professional judgment of practitioners.

• For minors, as for adults, the court has required a pre-sentence report (PSR) since the Criminal Justice Act 1991.

  • Early research suggested that there is a correlation between the quality of PSRs and levels of custodial sentencing with more than 40% of PSRs being assessed as unsatisfactory or poor in high-custody areas.

Non-custodial orders

Referral orders

• This order was introduced by the Youth Justice and Criminal Evidence Act 1999, re-enacted in Part III, s.16-28 Powers of Criminal Courts (Sentencing) Act 2000 and since amended.

• Referral order can be for 3-12 months and amounts to a new form of diversion.

• The YOP to which the young offender is referred includes lay members and the young offender is expected to help negotiate and agree a contract of activities to address his offending.

• If the court considered the offence to be very serious, a custodial penalty could be imposed.

  • If court considered offence to be sufficiently minor, an absolute discharge could be given.

  • If Mental Health Act 2003 provisions are applicable, a hospital order can be made.

• Intent was to remove the discretion of the youth court to ‘punish’ young offenders on a first prosecution provided they pleaded guilty.

• Discretion to use the referral order or not...