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Youth Justice Chapter 8: 'Treating Children Differently' (Eatson and Piper, 2012)?The ways in which, and the extent to which, the state deals differently with children and young ppl under 18 who commit crimes. Policies over the last century to divert minors from prosecution include cautioning, reprimands, warnings and the new youth conditional caution. Key elements of the youth justice system set out by Crime and Disorder Act 1998 (CDA).
A separate system?Art 40 of the UN Convention on the Rights of the Child - lays down principles of diff treatment for children - defined as being under 18. it endorses diversion away from the CJS. UK ratified it in 1991, but there has been for a long time before this a separate system for dealing with children who offend. The long-standing policy aim of ensuring that formal processes are child-friendly and that where poss criminal proceedings are avoided stems from our ideas about children development - fears for their 'contamination' by adult offenders.
Off ending by minors?1998 MORI survey of 11-16 year olds found that only 70% of children could say with certainty that they had not committed an offence in the prev 15 months - but the MORI Youth Survey (2008) showed that the overall proportion of young people reporting that they'd committed an offence in the prev 12 months had declined compared to prev surveys. Peak ages for offending are from 15-20yrs old, 2005 stats of recorded indictable offences suggested peak age of 17 for males and 15 for females. Youth Justice Board (2009) - girls involved in offending for a shorter period, commit fewer offences, and commit less serious offences, than boys.
The off enders: who and why???
Factors associated with offending show that young offenders are marginalised young ppl
- with a range of problems that require medical, social work or educational responses. Goldson (1999) - argues that 'it's well estab'd that the social circs of children in trouble, 'young offenders' are invariably scarred by complex configurations and multiple interrelated forms of disadvantage'. Berman (2011) - 47% of male sentenced prisoners and 50% of female sentenced prisoners had run away as a child - vs 10% of the general pop. Over 25% of prisoners had been taken into care as a child vs 2% of general pop. The idea that responsibility and culpability should be mitigated has more force in its application to young offenders - they do not have the capability and independence to rise above their circs and propensities to offend can be more easily 'treated' when the offender's young.
England riots 2011 - Home Office (2011) Used notions of 'nudge' factors which facilitated involvement and 'tug' factors whichinhibited involvement. These official stats rebutted the common belief that the riots were result of gang culture ?
onlt 13% of arrestees were affiliated to a gang. The report included the following findings which bears out the links btw offending anddeprivation: 1 35% of adult defendants were claiming unemployment benefits compared to 12% of the working age population.
2 342% of young people brought before the courts had free school meals during their time at school - compared to only 16% in maintained secondary schools. 64% of those young people lived in one of the most 20 deprived areas in the country - only 3% lived in one of the 20 least deprived areas. Home Office report on the riots - 'nudge' and 'tug' factors. Facilitators (nudge factors)
Group processes swept along by power of the group, seeing others get away with it, feeling anonymous
Group processes: focusing on the 'her
Peer pressure: friends getting involved
Peer pressure: frie
Information: seeing it on TV, getting texts/fb/BBM messages
Circumstances: not otherwise occupied, was easy/nearby to go
Presence of authority figure: no adult telling them not to, everybody doing it and nobody seemed to be getting caught
Presence of autho workers telling them not to
Previous criminal activity
Attitudes towards authority: cynicism/anger towards politicians, authority, neg experience of the police.
Prospects: poor job prospects, low income, low hope for the future
Prospects: in work lose
Family attitudes: relatives not disapproving
Family attitudes: d
Community: attachment to a community with a culture of low-lvl Community: attach criminality culture (including re
Belonging: little sense of ownership or stake in society
Poverty and materialism: desire for material goods but no way of paying for them
Belonging: sense o
The Welfare Principle s.44 Children and Young Persons Act 1933 estab'd that courts must 'have regard to' thewelfare of the child: a mandatory statutory requirement to ensure that children have been given at least a modicum of special treatment when appearing in a court, partic when appearing in a Youth or Crown Court. Under s.10(4) and (5) of the Children Act 2004 a youth offending team (YOT) is one of theauthorities which is a 'relevant provider of a children's services authority in England' and therefore under a duty to co-operate with the authority in making relevant arrangements. s.10(2) - authorities must make arrangements: With a view to improving the well-being of children...so far as relating to: a Physical and mental health and emotional wellbeing b Protection from harm and neglect c Education, training and recreation d The contribution made by them to society e Social and economic wellbeing
s.11(2) of the 04 Act also makes clear that a YOT is one of the bodies which must make arrangements for ensuring that they discharge their functions 'having regard to the need to safeguard and promote the welfare of children'. The duty to 'have regard to' means that, providing consideration has been given to the interests of the child, magistrates' and Crown Courts can legally give precedence to other interests than welfare, such as the need to protect the public/prevent reoffending. The new s.142A in the CJA 2003 states that the court must have regard to the principle aim of the youth justice system (which is to prevent reoffending), the welfare of the offender (in accordance with s.44 of the Children and Young Persons Act 1933) and the purposes off sentencing.
Conceptualising welfare and justice???
'welfare' and 'justice' need explanation in the juvenile justice context - they are words used to indicate whether the main focus of policy and practice is the child's needs or the child's offending - whether the constraining principle is in the child's best interests or the young offender getting his just deserts. The justice approach is characterised as involving 'informed and transparent decisions' in courts with an end product of punishment 'portrayed as rational, consistent and determinate' (Scraton and Haydon 2002). In contrast, the welfare approach is associated with interventionist measures of care, protection and rehab. Associated with decision making by professionals trained in social work, exercising their discretion to determine what's in the child's best interests. Justice perspective criticises this - 'leaving children to the discretionary powers of professionals' (Scraton and Haydon 2002). Welfare approach is utilitarian - its justification lies in the intended outcome of improvements in the child's well being. Justice approach is retributivist with a focus on personal culpability. Clarke (2002) said it was 'ill conceived' to see juvenile justice as the site for the 'justice v welfare' debate - argued that social work had contributed to, rather than replace, punitive juvenile justice.
Developments in diversion?Children Act 1908 estab'd juvenile court for the whole of the UK apart from Scotland. The name and role of the court lasted for almost 100yrs. 1960s - watershed in the way young ppl were dealt with in diff parts of UK - juvenile justice became more politicised (Pitts 1988) - the Left aligned with the welfare approach and the Right with the justice approach. The Children and Young Persons Act 1969 retained juvenile courts but gave Social Services Departments a bigger role, ended detention in the CJS, and lowered age of criminal responsibility. So it tried to compromise.
Diversion before the 1990s??The development of diversion of children from the CJS stems from period after WW2 when there was consensus that policy should move towards treating children who offend in terms of their welfare - diversion was in their best interests. Diversion became part of the policy of 'bifurcation' - the policy of diverting most young offenders from prosecution whilst a smaller number of serious offenders are processed thru the CJS and punished (Bottoms 1985). This policy means that the higher-profile serious cases can be treated in a touch justice fashion whilst the rest can be diverted. In UK the main policy tool for diversion was cautioning - Home Office Circular in 1978 stated that first offenders should be cautioned for all but serious offences - subsequent offences could still result in cautions if the offence was trivial and not committed a short time after the first offence. Fewer children were prosecuted and the use of cautioning vastly increased in the 70s and 80s.
But by the 1990s the juvenile system had proved that it wasn't immune from the influence of manegerialism - 'corporatism' and 'systems management' - Locke (1988) - 'if we are to succeed in effectively managing the problem of juvenile offending, then it must be effectively organised'. Cautioning turned out to be much cheaper than prosecution followed by detention. Policy attitudes to diversion and use of custody changed again in the 1990s.
Changing ideas Home Office Circular in 1994, and the revised Code for the CPS (1994) were earlyevidence of a sea change in thinking about young offenders - Evans (1994) said this 'threatened with reversal' the practice of diversion. The Circular on cautioning no longer referred to young offenders as those who shouldnormally be diverted from prosecution - appeared to amend the policy of multiple cautioning as well. The revised CPS Code indicated a tougher approach - Home Secretary Michael Howardintroducing the Code said 'from now on your first chance is your last chance. Criminals should know that they will be punished'. The Code said 'Crown Prosecutors should not avoid prosecuting simply because of thedefendant's age. The seriousness of the offence of the offender's past behaviour may make prosecution necessary' - CPS 1994. Statistics showed that the % of those cautioned fell from 70% in 1992 to 58% in 1999.Political climate motivated the change in approach. Littlechild (1997) - said there was a'Dutch auction of who could seem to be most tough in relation to young people'. Bulger murder was also important.The 'new' youth justice system Has actually been in place for over a decade - intro'd by CDA 1998. for the first time, thediversionary framework was statutory. 1997 - new Labour govt issued a White Paper 'No More Excuses: A New Approach toTackling Youth Crime in England and Wales' - indicated a more interventionist response to offending, holding young offenders to account and assuming responsibility in young offenders. Preface stated that the govt aimed to 'nip offending in the bud' to prevent youngoffenders growing up into 'hardened criminals'. Proposed reprimands and warnings to replace cautions and argued for the earlier use ofprosecution - less diversionary approach. Also extolled the benefits of RJ - 'reparation can be a valuable way of making youngoffenders face the consequences'.
The national system???
CDA 1998 set up a national and local administrative framework for the youth justice system in Eng and Wal. S.38 imposes duties on each local authority, police authority, probation committee and health authority to provide youth justice services. Act required YOTs be set up in each local authority area (s.39) and mandated the implementation of a youth justice plan (s.40). This has led to better 'joined up thinking' - but still room for more progress. Act set up a national Youth Justice Board for Eng and Wal to monitor the youth justice system and to advise the SoS (s41). Introduced for the first time in legislation an aim for the new YJS - to prevent offending.
The youth justice system - how it works
The Ministry of Justice, Home Office and the Department for Education set out a 'Youth Crime Action Plan', and provides funding and advice to local authorities for work with 'at risk' young ppl and families. The Youth Justice Board allocates offenders to custodial places such as Young Offender Institutions, Secure Training Centres, and Secure Children's Homes. The Board also has other jobs: Commissions facilities, manages contracts and works to improve regimes
1. Monitors performance
2. Provides guidance based on effective practice
3. Leads implementation of system reforms
4. Provides training
5. Provides general funding and specific grants for prevention work and Intensive Surveillance and Supervision. Police, Probation Service, Health services, Social Services and Education services all contribute funding and staffing for Youth Offending Teams (multi-agency partnerships). The YOTs are established, funded and managed by the local authorities.
Reprimands, warnings and the youth conditional caution?????
SS 65-66 of the CDA 98 intro'd a new pre-court system of reprimands and warnings to replace cautions. Like cautions, these are the responsibility of police but unlike cautions, they do not require the consent of the minor. The reprimand is in effect the first caution. Normally the first warning is the only warning - and a warning can be cited as a conviction. Guidance emphasises that seriousness of offending will be a v important factor in the decision whether or not to reprimand, warn, or prosecute and the police should use the Gravity Factor System devised by the Association of Police Officers. This gives all offences a scale of 1-4 and a score of 4 should always lead to a charge, 3 a warning (for first offence) or a charge, according to the guidance. Rights issues about the final warning were raised in the Durham (2005) case. A young person had not been told that a final warning for indecent assault involved a registration requirement as a sex offender. HoL concluded that reprimands and warnings do not constitute punishment and that informed consent is not required for their use. YJB policy is that the warning should be given, if possible, at a restorative conference. The warning is accompanied by referral to a YOT for assessment - presumption in s.66(2) that the offender will engage in a rehabilitation programme. The principles of early intervention and offender accountability are seen as crucial to the effectiveness of reprimands and warnings in reducing reoffending. CJIA 2008 intro'd the youth conditional caution for 10-17 yr old offenders - came into force early in 2009 but implementation has been phased - piloted since 2010 in a small no of areas with 16-17yr olds. A young person who had previously been given a reprimand and/or warning is eligible for a YCC - providing the offence is admitted and is a listed offence in the guidance. The decision to give a YCC will suspend the prosecution while the youth has the chance to comply with the conditions - where they are complied with the prosecution shouldn't proceed. But where there's no reasonable excuse for any non-compliance, prosecution for the original offence should go ahead as if the YCC had not been issued. YOTs are responsible, subject to oversight by the CPS, for monitoring compliance with YCCs and supervising young ppl on them - including delivering the conditions.
Discipline and responsibility
Constructions of childhood and adolescenceFortin (2003) - the YJS is a 'strange blend of authoritarianism and liberalism - permeated with contradictions and tensions'.
Evidence of a punitive and more controlling policy rhetoric - in contrast to the ideas about childhood that helped ensure the establishment of juvenile courts 100yrs ago, we now have pejorative views about young offenders. Minors have been transformed from 'juveniles' to 'youths' in public perception - the cultural meanings around 'youth' are often negative Burney (2002) - 'youths hanging about' has become the 'universal symbol of disorder' also London riots added to pejorative undertones of the word 'youth'. Vaughan (2000) argued that referring to minors as 'youths' has facilitated the intro of crim justice policies for minors which are at odds with former ideas about the offending child as 'in trouble' and in need of help.?Re-moralisationIn 1990s an influential moral discourse explained the perceived increased lawlessness of the young as being the result of their not having been taught right from wrong - part of a wider project to 're-moralise' the family. A liberal state depends on its members internalising norms of self-control and citizenship
- so the concern was that western societies had low social cohesion. Parents should be made more responsible - this approach has continued under coalition Dave Cameron after the London Riots mentioned 'moral collapse...failure to recognise right from wrong'?
Youth Justice Board National Statistics (2013)??????YJS works to prevent offending and reoffending amongst young people under 18. Structured to address the needs of young people specifically, different to the adult system Overall number of young people in the system continued to reduce Fall in the number of reoffenders and also a fall in the numbers offending for the first time 36% fewer younger people in custody than in 2009/10 Around 99,000 proven offences, down by 28% from 2011/12 First time-entrants to youth justice system had fallen by 20% in the last year Although the number of youths entering custody was down, the average length of time spent in custody is up. Now at 85 days Number of ways which proven offences can be resolved both in and outside the courts PND (financial penalty for low level offences) ASBO (not a formal criminal disposal, but breach may result in criminal proceedings) Reprimands/warnings/conditional cautions (issued by police, lowest level of disposal) More formal disposals include court convictions, includes first tier sentences, community sentences and immediate custody A number of schemes have been set up to try and divert people from the YJS. For example...
The Triage Schemes??
Based in police stations. Idea is that young offenders are directed towards RJ and other services. Aim is to ensure that needs of young people are assessed quickly so that appropriate interventions are put in place. Avoids unnecessary criminalization of young people on the fridges of criminal activity, and ensure that more formal criminal justice processes are targeted at more serious offences Increase use of restorative processes to make young people responsible
Youth Justice Liaison and Diversion pilot scheme
Designed to enhance health provisions in the youth justice system, facilitate help for young people with mental health issues, speech/learning difficulties More young males are arrested than young females Number of first time entrants have been falling Total number of young people sentenced fell by 28% since 2011/12 Most of the young people who are sentenced to immediate custody are given DTOs (Detention and Training Orders). The majority of young people are given community sentences
The Youth Rehabilitation Order (YRO)?This is a community sentence specifically for young people. 18 types of requirement can be attached. Most commonly used was supervision requirement, others include curfew, electronic tagging and attendance centre. 95% young people in custody were male 59% were white
Transforming Youth Custody: Putting Education at the Heart of Detention (Ministry of Justice, 2013)????
Notes that number of young people entering the YJS it at its lowest in a decade, yet there are still a small group of offenders who continue to commit prolific offences even at their young age. Estimates suggest that approximately 1/3 of youth offences are committed by 5% offenders. Education is the key to this proposal. Secure Colleges to provide education in detention, rather than detention being a mere afterthought. Recognition that young offenders often lead chaotic and complex lives, where literacy levels are low with the vast majority of offenders having been excluded from school Custody should provide the chance to end that chaos! Through education young people will be able to gain qualifications for employment and develop self-responsibility and respect. The beginning of a law-abiding life. Think about the transition from custody back into community life while the young person is still in custody to ensure they continue in the right direction on release Secure Colleges will have education at their heart in order to equip young offenders with skills to turn their life around Low levels of educational achievement are linked to increased risk of reoffending. Special educational needs are quite common. 73%young offenders sentenced to custody reoffend within 12 months of release, suggesting that time inside has no effect on reoffending, government believes that education is the solution to the problem.
'Time For a Fresh Start': Report (Independent Commission on Youth Crime and Antisocial Behaviour, 2010)?Inquiry concerned with failings in response to anti-social behaviour and crime in relation to children and young people Money is being wasted because the provisions aren't working. Young people are being criminalized when they shouldn't necessarily be, and this will only make their criminal behaviour worse Statistics show that both crime and youth crime are on the decrease, yet contrary to the evidence people still seem to think that crime is rising
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