Youth Offending and Restorative Justice

Adam Crawford, Tim Newburn

• Publisher: Willan
• Year: 2013
• Print ISBN: 9781843920113
• eBook ISBN: 9781134001545
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book provides an empirically grounded, theoretically informed account of recent changes to the youth justice system in England and Wales, focusing on the introduction of elements of restorative justice into the heart of the criminal justice system, and the implementation of referral orders and youth offender panels. Taken together, this amounts to the most radical overhaul of the youth justice system in the last half century, fundamentally changing the underlying values of the system away from an 'exclusionary punitive justice' and towards an 'inclusionary restorative justice'. The book explores the implications of these changes by using the lens of a detailed study of the implementation of referral orders and youth offender panels to explore wider issues about youth justice policy and the integration of restorative justice principles. It draws upon the findings of an in-depth study of the pilots established prior to the national rollout of referral orders in April 2002. The book will be essential reading not only for those involved in the task of implementing the new youth justice, but others with an interest in the criminal justice system and in restorative justice who need to know about the far reaching reforms to the youth justice system and their impact.

Chapter 1

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The origins and development of youth justice

Recent years have seen profound changes to the youth justice system in England and Wales. As is the case with much of the penal system, the pace of change has quickened markedly in recent decades. The increasing politicisation of crime has affected all parts of the justice system. In many respects, however, the particular concerns about young people that existed for the whole of the last century, and much of the previous one (Pearson 1983), led to ever more frequent calls for, and attempts to, reform the youth justice system. Our concern in this book is with the most recent and significant reforms of that system – the introduction of a restorative justice-influenced disposal: the referral order. A mandatory order, for firsttime offenders pleading guilty in the Youth Court, the referral order involves volunteers from the local community working with offenders, and possibly victims, to construct an appropriate set of activities aimed at combining reparation with punishment. The orders were piloted from 2000 and implemented nationally from 2002.

By the time of the 1997 General Election the Labour Party, having been out of government for almost two decades, had numerous well-developed policies it was ready to implement. Within the Home Affairs brief, reform of the youth justice system was very much top of the agenda. Within a short space of time legislation was introduced and passed – the Crime and Disorder Act 1998 – which made substantial changes to the management, the funding and the organisation of youth justice and the range of penalties available to the Youth Court. So far reaching were these changes that numerous commentators, echoing the emergence of ‘New Labour’, began referring to this as the ‘new youth justice’ (see, for example, Goldson 2000 and other contributors to that volume). It is this apparently ‘new’ youth justice that is the focus of this volume. Before examining the detail of the changes it is necessary to look further back. It is difficult, if not nigh impossible, to understand the contemporary politics and practice of youth justice without first examining its longer-term history. Though its origins go back some way further, this history is one in the main confined to the twentieth century.

Origins

Much of twentieth-century juvenile justice was characterised by a double taxonomy most usually summarised as ‘punishment’ and ‘welfare’. The English (and Welsh) juvenile justice system emerged out of the social reform movements of the nineteenth century, much as the probation service emerged out of the previous century’s temperance movement. During the latter half of the nineteenth century the idea was gradually established that young people should be dealt with separately from adults – both in the administration of justice and punishment. During the 1800s numerous reformers sought to establish means by which children might be removed, and kept separate, from the adult prison system. Reformatories and industrial schools were introduced by statute in the 1850s to deal with those convicted of vagrancy. Industrial schools were initially part of the educational system but by the 1860s they, like reformatories, came under the control of the Home Office.

The introduction of the reformatories and industrial schools led to the rapid increase in the number of young people in institutions. By the late 1850s there were over 2,000 young people in reformatories and this had grown to 7,000 by 1870 (Rutherford 1986a). As we shall see, this pattern of development – reform that was broadly welfarist in intention but which had punitive unintended consequences – was not untypical of what was to follow in the following hundred or so years.

In the 1890s two committees – the Gladstone and Lushington Committees – were established by the Home Secretary, Asquith, to examine the penal system. The Gladstone Report advocated ‘treatment’ alongside punishment in prisons, particularly in the case of young prisoners. The Lushington Committee advocated alternatives to imprisonment, looking in particular to education as one of the remedies for juvenile crime. Both recognised the importance of separate provision for juveniles. By this time juvenile courts were operating in numerous towns, and the advent of a Liberal government in 1906 brought substantial reform.

Borstals, catering for 16–21-year-olds, were also introduced in 1908, though it was some time before any distinctive regime emerged. Just as juvenile courts grew informally prior to the passage of legislation so arrangements for the supervision of offenders also existed before formal legislation was passed. The inter-war years saw a significant increase in recorded juvenile crime and by 1920 the vast majority of people under probation supervision were aged under 21 (Rutherford 1986a). At this period the focus remained firmly upon the ‘welfare’ of young offenders and the ‘treatment’ necessary to reclaim or reform them. The subsequent Children and Young Persons Act 1933 reaffirmed both the principle of a separate juvenile justice system and the assumption that the system should work in a way that promoted the welfare of young people.

Though there were shifts in emphasis from time to time, the general topography of juvenile justice continued to be dominated by ‘welfarism’ for a further 40 years. The Advisory Council on the Treatment of Offenders, established in 1944, ‘strongly emphasised the unwisdom of sending young persons to prison’ (Bailey 1987: 42) and the subsequent Criminal Justice Act 1948 placed restrictions on the use of imprisonment. One commentator (Stevenson 1989) has suggested that the Ingleby Committee, established in 1956 to inquire into the operation of the juvenile court, actually favoured the development of a local authority-based system of social service based on the existing Children’s Departments as a method of decriminalising juvenile justice. The committee recommended the raising of the age of criminal responsibility from 8 to 12 ‘with the possibility of it becoming 13 or 14’ (Morris and Giller 1987), and below that age only welfare proceedings could be brought. The Children and Young Persons Act 1963 raised the age of criminal responsibility to a compromise 10, though Bottoms (1974) suggests that even this was of considerable symbolic importance to later events.

The ‘high point’ of welfarism in juvenile justice was reached in the late 1960s and, like so much in penal politics, the shift away was rapid. The Ingleby Report was followed first by an inquiry under the chairmanship of Lord Longford which recommended the total abolition of juvenile courts on the basis that ‘no child in early adolescence should have to face criminal proceedings’, and subsequently by two white papers. The Child, the Family and the Young Offender included proposals to establish family councils and family courts, but was undermined by lawyers, magistrates and probation officers. Children in Trouble, by contrast, found legislative embodiment in the Children and Young Persons Act 1969. The Act abolished approved schools and the remand homes or centres that existed alongside them. Care was preferred over criminal proceedings; the intention was that the juvenile court should become a welfare-providing agency but also ‘an agency of last resort’ (Rutter and Giller 1983).

It was also intended that detention centres and borstals for juveniles would be phased out and replaced by a new form of intervention – intermediate treatment. ‘This [though] was less a policy of decarceration than a reiteration of the traditional welfare abhorrence of the prison system’ (Rutherford 1986b: 57). Between the passage of the Act and the expected date for its implementation there was a change of government and the new Conservative administration announced that it would not be implementing significant sections of the legislation. Rather than a sea-change in juvenile justice, the juvenile courts continued to operate largely as before. In fact, the welfare-oriented care proceedings were initially used very sparingly, and the more punitive disposals were used increasingly in the 1970s. The number of custodial sentences, for example, rose from 3,000 in 1970 to over 7,000 in 1978 (Cavadino and Dignan 1992).

By contrast, in Scotland a very significant set of changes to the juvenile justice system were set in train. Juvenile courts were abolished and replaced with welfare tribunals staffed with lay people. The Social Work (Scotland) Act 1968 gave local authorities considerable powers over, and responsibility for, young people’s welfare and, in the form of these new tribunals, established what has become known as the Children’s Hearings system. The system came into operation in 1971 implementing the bulk of the recommendations of the Kilbrandon Report (1964). Under the 1968 Act, a new official, known as a reporter, was appointed within the local authority to receive referrals relating to children in difficulty. A child or young person can be referred to a reporter by anybody, but in practice referrals are primarily from the police. The role of the reporter is then to determine what initial action is to be taken in response to the referral. The main courses of action are to:

•take no further action

•refer the case to the local authority for advice, guidance and assistance, or

•arrange a Children’s Hearing.

The decision to refer a child to a hearing is generally made where it appears that the child was in need of compulsory measures of care or supervision (Hallett et al. 1998). The hearing is a lay tribunal comprising three panel members. In addition to the panel, also present will be the reporter, the child or young person, at least one parent or carer and a social worker. Others – teachers, family representatives – may attend occasionally. The system is founded on the idea that the promotion of the welfare of the young person is paramount and that decisions taken should be based on ‘need’ rather than ‘deed’. The forum is intended to be non-adversarial and relatively informal. Both the child or young person and his or her parent/guardian should have an opportunity to participate. The purpose of the hearing is not to determine the facts but to decide upon a disposal. Where there is dispute or denial of the reasons for the referral then the panel is able either to discharge the case or to refer it to the Sheriff for adjudication. The Sheriff, where the case is found to be proven, may return it to the hearing for further consideration and the determination of a disposal. The three major disposals are discharge, a supervision order or a residential supervision order. As a welfare-based system the Scottish Children’s Hearings have, from time to time, been the focus of attention among those that would seek reform youth justice in England and Wales. Some of the more recent reforms, particularly the referral order, are indeed resonant of aspects of the hearings system – in an amalgam with restorative justice-based initiatives from other systems (Crawford 2003). Why the Scots were able to implement the hearings system whilst England and Wales quickly retreated from the 1969 Act is beyond the scope of this chapter (though see Morris and Giller 1987).

Notwithstanding the fact that its implementation was very partial, the 1969 Act became the scapegoat for all the perceived ills of juvenile crime and juvenile justice in the 1970s in England and Wales. Rutherford (1986a: 59) suggested that it was ‘the ideas and attitudes … culminating in the 1969 Act … on which the campaign for counter-reform was mounted’. The Act was attacked from all sides, not just those critical of its ‘welfare’ elements and it is hard not to agree with Morris and Giller’s (1987: 111) conclusion that juvenile justice policy at the end of the 1970s ‘bore little resemblance to that proposed in the 1969 Act’. As Jones (1984) notes, the ‘new orthodoxy’ of the ‘justice model’ began to take hold from the early to mid-1970s onward.

Pratt (1989) suggests there were four major sets of criticisms of the ‘welfare’ model. First, the treatment-oriented interventions encouraged by the welfare model were perceived to be ineffective. Second, evidence suggested that care could, intentionally or otherwise, become more coercive (and less just) than punishment. Third, professional expertise (that was assumed to underpin welfare approaches) was seen to be less important than hitherto believed. Finally, the welfare approach was alleged to be ineffective in controlling delinquency (referred to sometimes as the ‘decline of the rehabilitative ideal’). At the heart of the emergent ‘justice model’ was a retributive requirement to impose punishment, though this was to be ‘in a precise and restrictive form’.

The election of a Conservative government with a ‘law and order’ agenda seemed likely to reinforce and perhaps further fuel such developments. The reality is more complex however. In practice there was a significant and sustained decline in the use of custody for juveniles during the 1980s. The paradox was that ‘the decade of “law and order” was also the decade of what has been called “the successful revolution” in juvenile justice’ (Jones 1984). Underpinning this ‘revolution’ were the practices of multi-agency working and diversion that saw a huge expansion in the use of (informal and formal) cautioning, and an increasingly bifurcated system that sought to distinguish the serious, the dangerous and the persistent from the rest. How was this emergent system to be understood? Writing at the end of the 1980s, Pratt (1989) argued that the debate about justice and welfare was something of a ‘sideshow’, and that a new form of penological discourse and practice – corporatism – was emerging in juvenile justice. Efficient and effective ‘management’ of the offending population was now to the fore. This was legitimated by the rediscovery that ‘something works’; namely the infliction of a ‘just measure of (community based) pain’. For Pratt (1989), corporatism involved a set of strategies based on centralised managerial control with the aim of efficiently managing the offending population. As such it presaged the slightly later emergence of what Feeley and Simon (1994) have termed the ‘new penology’ in which actuarial techniques of risk assessment and classification come to dominate much penal decision-making and administration. The emergent managerialist and actuarialist discourses of the late 1980s were joined in the early 1990s by the embracing of ‘populist punitiveness’ by politicians of all hues. Bottoms (1995) suggests three reasons for the attractiveness of this new ‘disciplinary common-sense’ (Hall, 1980). First, its populist appeal derives from the belief that increased punitiveness may be effective in reducing crime through general deterrence and/or incapacitation. Second, there is a desired belief that it will help foster a sense of moral consensus around issues where currently dissensus or moral pluralism exists. Third, politicians believe that it will be a vote-winner. Rising levels of juvenile crime, a increasing popular and political belief that the youth justice system was ineffective, and widespread concern about the moral health of contemporary youth inspired by a number of high-profile cases involving young offenders – most spectacularly and influentially the Bulger case – provided the backdrop against which New Labour sought to redefine itself in the law and order landscape. In opposition, New Labour drew on the managerialism of the justice model, and added its own potent blend of communitarianism and populism (Newburn 1998). The consequence is, we are told, the emergence of a ‘new youth justice’ (Goldson 2000), the ‘broad contours’ of which ‘are easily described’ (Pitts 2000).

New Labour, New Youth Justice?

In reality, New Labour’s youth justice is somewhat more tricky to characterise than some commentators would have us believe. In part this is a result of the sheer volume of activity that the Labour government has undertaken in this area. At least as importantly, much of the governmental ‘style’ has been to ‘talk tough’ whilst behind the scenes enabling sometimes more enlightened practices to be developed and promulgated (Savage and Nash 2001). The consequence is a very broad and far-reaching set of changes that are not easily characterised or, indeed, summarised.

In early 1997 six consultation documents on the subject of youth crime were published (Home Office 1997a; 1997b; 1997c; 1997d; 1997e; 1997f), each of which contained considerable discussion of various proposals that had first been outlined in the Labour Party’s pre-election discussion paper, Tackling Youth Crime, Reforming Youth Justice (Labour Party 1996). The proposals in that document had been heavily influenced by the Audit Commission’s coruscating critique of the youth justice system in Misspent Youth (Audit Commission 1996). Its view was that the system in England and Wales was uneconomic, inefficient and ineffective. The emphasis in the commission’s report was on clarity of objectives, consistency of approach and targeting of resources. Central to this was the aim that resources be shifted from processing to prevention. Its central recommendations emphasised the need for consistency of aims and objectives in youth justice; improved inter-agency co-operation in meeting these aims and objectives; the creation of appropriate performance indicators for all agencies involved in youth justice; and the monitoring of performance so as to improve the functioning of the system.

The major proposals in Tackling Youth Crime, Reforming Youth Justice eventually found their way, largely unchanged, into the government’s flagship legislation, the Crime and Disorder Act 1998. This Act, though followed by others, contains the key elements of Labour’s ‘new youth justice’: the establishment of the Youth Justice Board (YJB), the creation of Youth Offending Teams (YOTs), and the restructuring of the non-custodial penalties available to the Youth Court. In its white paper, No More Excuses, the government had said that there was:

Confusion about the purpose of the youth justice system and principles that should govern the way in which young people are dealt with by youth justice agencies. Concerns about the welfare of young people have too often been seen as i...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• List of figures and tables
• Acknowledgements
• Introduction
• 1 The origins and development of youth justice
• 2 Restorative justice: practices and ideals
• 3 Implementing restorative justice initiatives
• 4 Referral orders and youth offender panels
• 5 Organising the delivery of referral orders
• 6 Referral orders and the courts
• 7 Youth offender panels
• 8 Contracts and their implementation
• 9 Community panel members
• 10 Young people and their families
• 11 Victims and referral orders
• 12 Implementing the new youth justice
• References
• Index