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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. o 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. o 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. o 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). o 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. o 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. o 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. o 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 o 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. o 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. o If court considered offence to be sufficiently minor, an absolute discharge could be given. o 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 remained where the young offender pleaded guilty to only some of the charges. P395
? Referral conditions have been amended in response to several pressures. o There was evidence of a rise in the number of apparently tactical 'guilty pleas' and in the number of absolute discharges by youth courts, possibly because of concern by magistrates that the resources of the YOP were being 'unecessarily' expanded. o Compulsory referral conditions now have the additional condition that the offence being dealt with must be an imprisonable one (s.17(1)) while the court has discretion to impose the order on the same conditions if the offence is not imprisonable (s.17(1A) PCCSA 2000). o Legal Aid, Sentencing and Punishment of Offenders Act 2012 amended s.16(1)(c) such that courts can also impose a conditional discharge rather than a referral order, and repealed s.17(2A)-(2C) so that the discretionary conditions
are now simply that the compulsory conditions are not met and the offender has pleaded guilty to at least one offence before the court.
? When first implemented the scheme was criticised for assuming a young offender had sufficient maturity to engage in negotiating a package of activities or to understand fully the implications of breaking the terms of the 'contract'.
? Early Home Office research found that some of the concerns had not materialised, with positive comments being made by parents and young offenders. o There would seem to be more optimism that referral orders are effective in reducing offending rates and diverting from more penal options. First tier orders Financial penalties
? The young offender can be given a fine or compensation order, as can an adult. P396
? For offenders under 16, paying the fine is the responsibility of a parent/guardian and it will be their ability to pay that is taken into account when setting the level of the fine. Reparation order
? Introduced by s.67-68 CDA 1998, re-enacted in s.73-75 of the Powers of Criminal Courts (Sentencing) Act 2000 and continues as an order separate from the YRO.
? Reparation order can be imposed in relation to less serious offending.
? Order available only for those under 18 and cannot be added to a custodial or community sentence. Fixed penalties
? Non-payment of fixed penalty notices can result in a prosecution.
? Many FPNs are for environmental offences.
? Until April 2013, young people of 16 or 17 who had committed offences such as theft or being drunk and disorderly could receive a penalty notice for disorder. Youth rehabilitation orders
? What has replaced all the previous community orders is a similar order, for all minors and with a different name - the youth rehabilitation order introduced by Part 1 CJIA 2008.
? Available for all convicted offenders under 18 and involves the court adding any of the 15 requirements specified in s.1.
? YROs can include a mental health or drug treatment requirement or a local authority residence requirement, but also curfew, exclusion, electronic monitoring and prohibited activity requirements. Intensive supervision and surveillance programmes (ISSPs)
? ISSP introduced by Youth Justice Board in 2001, aimed at 15-17 year old offenders who had been charged or warned at least 4 times in the previous 12 months and so were at high risk of further imprisonment.
? ISSP uses a combination of electronic and other forms of tracking, with staff sent to deal with non-compliance as soon as possible.
? The ISSP is used in England and Wales.
? ISSP is used in England and Wales.
Research on first 41 pilot schemes concluded that the frequency of offending in the ISSP sample went down by over 40% over one year and by 39% over two years. P398 o Seriousness of any further offending went down by 13% in both one and two years after ISSP (Gray 2005).
? Scotland has a similar scheme - the Scottish Intensive Monitoring and Supervision programme.
? S.88 ASBA 2003 made available the fostering requirement - a child or young person can be required to live with a local authority foster parent for a period up to 12 months as part of the supervision order.
? The Youth Justice Reinvestment Custody Pathfinder Initiative, which began in 2011 in pilot areas, provided extra funding to YOTs in return for their pledging to cut the use of custody over two years. Detention The range, use and site of custodial sentences
? Children and young people can be sentenced to determinate and indeterminate custodial sentences. P399
? Main determinate sentence is the detention and training order - the DTO.
? There are also determinate sentences which have an extended supervision period post-release.
? The indeterminate sentences - those with no prescribed period of time - are imposed because the offence is murder (PCCSA 2000, s.90) and because the conditions for a sentence of detention for life under CJA 2003, s.226 are fulfilled, the young offender being deemed to be 'dangerous'.
? Overall, the average length of time spent in custody increased by 8 days to 85 days in 2012/13 with a further increase to 90 days in 2013/14 but remaining largely unchanged at 89 days in 2014/15. o For longer sentences the large increase from an average of 302 to 409 days in the previous two years has not continued and was at 323 days in 2014/15.
? In 2014/15 96% of children and young people under 18 held in the custodial estate were male, 96% were aged 15-17 years and 60%
were from a white ethnic background, while those from a black ethnic background accounted for 21% of young people in custody (Ministry of Justice 2016). Where served
? When a child or young person under 18 is sentenced to custody, the decision as to where he should be placed has been made since 2000 by the Youth Justice Board for England and Wales.
? Young offender can be allocated to a secure training centre (STC), a local authority secure children's home (SCH) or an under 18 young offender institution.
? Presumption is that 15-17 year old boys will be placed in YOIs, whether open or closed institutions, while 12-14 year olds will be accommodated outside the Prison Service.
? Vulnerability and gender may allow for different placements but in practice, discretionary placement outside the Prison Service is difficult because the majority of the secure juvenile estate is still to be found in Prison Service establishments. Determinate sentences o
Detention and training order (DTO)
? Criteria for imposition of a DTO, which is an option if the offence is one for which an adult could be imprisoned, are to be found in s.11 PCCSA 2000.
? S.101(4) allows a maximum of 24 months for the detention and training order for other offences, providing it does not exceed the maximum allowed for that offence for an offender over 21 years. P401
? CJA 1991 repealed relevant sections of CJA 1982 so that minors and adults are now subject to the same statutory criteria for the imposition of community and custodial penalties.
? DTO now available to all those over 10.
? Half the length of the order is served in an institution; the remainder is spent on supervision in the community, with breaches leading to further detention. Longer sentences for 'grave' crimes
? For particular offences, longer sentences than the 24 month maximum available to the youth court can be imposed.
? For murder and for certain serious offences the Crown Court has powers to make orders for detention at Her Majesty's pleasure or detention for a specific period (PCCSA 2000, s.90 and 91) and also an order for detention for life for specified serious offences (CJA 2003, s.226).
? Use of grave/serious crimes greatly increased over the years, particularly during 1993-7.
? There has been a decline in the use of s.91 since 2002, the total for 2010 being 250. Mandatory minimum sentences
? There is a new set of provisions in the CJA 2003 which import into the grave/serious crimes provision another means by which this loner sentences can be imposed on 16 and 17 year olds at the Crown Court. Extended sentences
? CJA 2003 introduced new protective sentences for both adult and juvenile 'dangerous' offenders, so that after April 2005 until December 2012, when the revised extended sentence came into force, the courts could use the 'old' extended sentence of detention. P403
? Both new and old versions constitute a determinate prison sentence with an extended period of supervision on release. Indeterminate sentence For murder
? Penalty for murder is mandatory - in effect a life sentence.
? There has been no noticeable trend in the number of murders by 10-17 year olds for whom a sentence under s.90 must be imposed, with total annual figures varying from 10 to 25 cases in 1989-99 to 7 in 2010. For 'dangerous' young offenders
? Detention for life can be imposed if the conviction of the young offender is for a 'serious' specified offence and the court believes that there is a significant risk to members of the public that the
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