A more recent version of these Youth Justice notes – written by Oxford students – is available here.
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YOUTH JUSTICE OVERVIEW UN Convention on the Rights of the Child (UNCRC)Art 40: States Parties shall promote the establishment of laws, procedures, etc. specifically applicable to children o Should also deal with children without resorting to judicial proceedings where possible and appropriate
HISTORICAL DEVELOPMENT IN UK-Originally viewed as "children in trouble" o Use of industrial and reformatory schools to "help" save them from crime 1960s: "heyday of youth justice welfarism" (Muncie and Hughes, 2002) Increasing consideration of punishment for youth offenders o Politicization of the welfare and justice approaches Bifurcation o Bottoms (1985): bifurcation is the policy of diverting most young offenders from prosecution, which is reserved for serious offenders o NOTE: diversionary action (e.g. warnings, conditional cautions) are made available to a court when sentencing for a subsequent conviction o 1950s: juvenile liason schemes o 1970s and 1980s: guidance issued to encourage use of cautioning
? Use of cautions increased vastly for juvenile offenders (Goldson 1999) o 1980s: managerialist approach to the punishment half of bifurcation o Need for diversion supported by labeling theory (Lemert, 1967)
? Idea that children would "grow out" of offending if they didn't internalized the label of criminal
? Home Office supported this view: custody might confirm children as criminals by labelling them as such o 1990s: change in approach to focus on justice
? Reduction in diversion o CPS Code (1994 and 2000): "should not avoid prosecuting simply because of the defendant's age" o Audit Commission (1996): custodial sentences were ineffective for young offenders
? 90% of those aged 14-16 sentenced for up to 1 year were reconvicted within 2 years: didn't make economic sentence to imprison them
? 1-2 cautions would be more effective (but they lose their effectiveness as more cautions are given)
? BUT political climate in 1990s was very focused on justice and toughness 1997: No More Excuses (White Paper by Labour government) o Interventionist approach, argued for earlier use of prosecution, increased use of warnings and reprimands o Importance of restorative justice Crime and Disorder Act 1998
S34: abolished the doli incapax presumption so all children over 10 can now be prosecuted (previous presumption of no criminal responsibility under 14)
? Brooks (2011): doesn't make sense that a child who isn't old enough to legally by a hamster can be criminally responsible
? Criticized by UN (2007): should be at least 12 years o S38: youth offending teams to be set up and cooperation between authorities to provide "youth justice services" o S37(1): first introduction of an aim (preventing offending) for youth justice system o S41: set up the Youth Justice Board o S65-66: replaced cautions with reprimands and warnings
? Still pre-court diversion (by the police) as "community intervention"
? Aimed at allowing for earlier intervention, doesn't require minor's consent
? Warning can be cited as a conviction
? Offences ranked according to gravity: Gravity Factor System scores them from 1-4 with 4 leading to charge and 3 to warning (1 st offence) or charge o Introduction of ASBOs (for offenders above 10 years old) and child safety orders o Durham (2005): young person not told that final warning for indecent assault involved registration as sex offender
? UKHL: warnings are not punishment so informed consent not required
? ISSUE (Dingwall): diversion is to other forms of punishment, not away o Youth offenders expected to be involved with rehabilitation and restorative justice CJIA 2008 o Introduced Youth Conditional Cautions
? Pre-court disposal for 10-17 year olds who admit the offence
? Results in suspension of prosecution for as long as the youth complies with the conditions 2009 Sentencing Guidelines o When "having regard to" welfare, the court should consider:
? High incidence of mental health problems and learning difficultiesamongst youths in the criminal justice system
? Vulnerability to self-harm o General expectation that a young person will be dealt with "less severely", but this distinction "diminishes as the offender approaches age 18
? This is because they are "unlikely to have the same experience and capacity as an adult to realize the effect of their actions on other people or to appreciate the pain and distress caused"
? Also less able to "resist temptation, especially where peer pressure is exerted" o-
TRENDSYouth offending fell between 2007-2010 (National Audit Office 2010) Proven offences by young people aged 10-17 in 2010 fell by 19% from 2009 and 33% from 2007 (Ministry of Justice, 2011)
--Farrington: peak ages for offending are usually 15-20 o With deviation between specific offences and genders Most offences are property based and not very serious o Increasing number of cases for violence against the person (2 nd largest group) Who are the offenders o Usually those marginalized and with various problems (medical/social/economic)
? Goldson (1999): these young offenders are affected by "multiple interrelated forms of disadvantage"
? Research shows that many are from abusive backgrounds
? NOTE: these risk factor trends also apply to the prison population in general 2011 Riots o Home Office (2011): various complex factors which led to young people offending
? Only 13% were affiliated to gangs
? Many were from disadvantaged backgrounds
? Poor families, lack of education, unemployed Recent trend in possible civil orders available indicate an emphasis on responsibility (for both parents and children)
PRINCIPLES WELFARE PRINCIPLE-Children and Young Persons Act 1933 o S44: Courts must have regard to the welfare of the child o This ensures that they receive special treatment (compared to adults) NOTE: this is not as strong as the paramountcy principle in family law o Here, the Courts can still give precedence to other interests (e.g. public protection, need to reduce reoffending) as long as the child's welfare is considered CJA 2003 o S142A: Court must have regard to "the principal aim of the youth justice system" as well as the welfare of the offender and purposes of sentencing o Principal aim is "to prevent offending (or reoffending)" o Purposes of sentencing set out in subsection 3
? Reform and rehabilitation
? Protection of the public
? Making of reparation o Exception: if sentence is fixed by law Welfare approach o Paternalistic and interventionist o Seeking to address children's needs based on scientific/psychological evidence o Scraton (2002): this leaves children to the "discretionary, permissive powers of professionals" o Asquith (2002): what kind of punishment would be in their "best interests"?
ISSUE: rights are only truly protected if the children are punished for what they have actually done Justice approach o Punishment is "portrayed as rational, consistent and determinate" (Scraton, 2002) o Retributivist approach o ISSUE: fails to take account of social mitigation Clarke: cannot cleanly divide criminal justice into welfare and justice o Welfare policies (social work) also contribute to punitive justice o-
View that increasing lawlessness among the young was a result of not having been taught right from wrong (failure to internalize norms of self-control) Involvement of families (and parents) to inculcate morality o Comes with increased parental responsibility o Parents might be liable to fines and sanctions for non-compliance along with civil orders imposed on their children o Government views family as the building block of society Junger-Tas (2002): if moralization cannot be carried out by the family, the criminal and juvenile justice system must "fill the void"
ORDERS REFERRAL ORDERS-
Introduced by Youth Justice and Criminal Evidence Act 1999 Criminal order imposed by the youth court o Unlikely for first offence (which would probably receive a warning) Diverts the offender to a Youth Offender Panel o Panel includes lay members o Offender is to negotiate a contract of activities to address offending MoJ (2011): 25% of youth court orders are referral orders Originally would automatically apply for offenders under 18 who pleaded guilty and had no previous convictions (unless very serious) o Resulted in tactical guilty pleas and increased use of absolute discharges o After 2003, additional requirement that the offence is imprisonable o After LASPOA 2012, can make either a conditional discharge or referral order
? Even if offender had been dealt with by a court on one previous occasion Might include participation in restorative justice
Purpose of providing the court with "detailed information about how the offender could be punished in the community, so that option can be fully considered" For youth offenders, based on 'Asset' assessment o Measures likelihood of reoffending, risk of harm to others and vulnerability ISSUE: service providers and Youth Offending Teams may not know how to use the assessment properly o Calder (2003): Without training, they might focus on the risk of offending rather than the offender's needs Use of a "Scaled Approach" to determine the level of intervention required
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