Youth Justice

Ideas, Policy, Practice

Roger Smith

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415626507
• eBook ISBN: 9781136240942
• Edition: 3
• Topic: Sciences sociales
• Subtopic: Criminologie

The exciting new edition of this well-loved textbook offers a fully expanded and revised account and analysis of the youth justice system in the UK, taking into account and fully addressing the significant changes that have taken place since the second edition in 2007.The book maintains its critical analysis of the underlying assumptions and ideas behind youth justice, as well as its policy and practice, laying bare the inadequacies, inconsistencies and injustices of practice in the UK. This edition will offer an important update in light of intervening changes, as reflected in a change of government and shifting patterns of interventions and outcomes.

This book will be an important resource for youth justice practitioners and will also be essential to students taking courses in youth crime and youth justice.

1 Contrasts and continuities

Youth justice in the 1980s/1990s

The meaning of history

Youth justice is, of course, a hotly contested and highly ‘visible’ domain, and this is by no means a recent development. It appears that the behaviour of the young has been a matter of public concern through the ages. Whether or not there has been a phase of human development designated specifically as ‘childhood’ (Ariès, 1962; Pollock, 1983), our predecessors nonetheless seem to have viewed the turmoil and transitions of youth with at least as much concern as is evident in the present day.

I would there were no age between sixteen and three-and-twenty, or that youth would sleep out the rest; for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting.

(Shepherd, Act 3, Scene 3, A Winter’s Tale, by William Shakespeare)

Others, too, have suggested that there is evidence of significant concern about youthful misbehaviour in ancient Greece (Garland, 1990), whilst Plato and Aristotle are similarly attributed with negative quotations about the juvenile delinquency (Burfeind and Bartusch, 2005).

Although the initiation and development of dedicated ‘systems’ for dealing with the delinquencies of children are associated more readily with the modern era, they seem only to be the culmination and rationalisation of responses to perennial fears (Muncie, 2009).

If the ‘problem’ of youth crime has always been with us, it does seem to become more pertinent to seek to account for changing attempts to explain and deal with its manifestations over the passage of time. Why should particular forms of response to the issue emerge and come to prevail at specific points in time? And why do they become less popular at other times? A brief historical account may help to shape our understanding of this question in two ways: first, by helping us to be clear that present-day practices are neither fixed nor necessarily the ‘best’ way of addressing youthful misbehaviour and, second, by providing a basis for identifying trends and trajectories, and, in turn, projecting these, cautiously, into the future.

In making a somewhat arbitrary decision to concentrate on a relatively limited ‘slice of time’, I am conscious of the risk of foreshortening and overemphasising the contemporary and the new at the expense of deeper-lying and more persistent influences, particularly those to do with structure and apparently embedded certainties. However, reasons of convenience and the limitations of space do come into play, and they preclude the kind of longer-term accounts offered elsewhere by Hendrick (2006), Muncie (2009) and Hazel (forthcoming). Despite this, I do want to avoid conveying the misleading impression that only the present (or very recent past) matters; to the contrary, I believe that histories – even truncated ones – are crucial elements in the overall analysis of policy, practice and change in youth justice.

Lessons from history – what might we learn?

Before going on to consider specific aspects of the recent past in youth justice, it may be helpful just to reflect on what type of lessons could usefully be learned from history.

First, of course, things change, and these changes may be taken as evidence of more or less significant developments on a wider scale. So, for example, the transition from ‘juvenile’ to ‘youth’ justice that took place in England and Wales in the course of the late 1980s/early 1990s can be associated both with certain legislative and policy shifts – the introduction of the Youth Court, in 1991, for example; however, it can also be associated with a change in the way children and their delinquencies were conceptualised, with further implications and consequences, such as, perhaps, the later abolition of the presumption of doli incapax¹ in 1998.

Not only do ‘things change’ then, but so do ideas and it certainly seems to assist us in making sense of the present if we can locate and track the emergence and influence of specific trends in thinking about young people and their crimes. When I started to work in a ‘juvenile diversion’ project in the 1980s, the term ‘restorative justice’ was virtually unknown, and certainly did not provide us then, as it probably would now, with a conceptual framework or form of discourse to account for and justify our practice. Would it have been easier to attain a sense of legitimacy if we had had a convenient banner such as this under which to operate?

Change from ‘outside’ is significant, too, and is an important reminder that youth justice, like any other system, is not self-contained, and is susceptible to the impact of contingent events; perhaps especially so, given the nature of the subject matter. So, for example, the 2011 riots in England had an almost instantaneous effect on the processes and outcomes experienced by young people coming into contact with the system; similarly, earlier ‘trigger’ events such as the killing of James Bulger appear to have had a substantial impact.

The consequences of these events, however, lead to a further observation about the lessons of history, which is that some things don’t change. Pearson’s (1983) important contribution illustrates the persistence of a set of public and political attitudes that seem to exemplify hostility to young people and their behaviours as a default position. History, then, may be as much about continuity as it is about change, and this clearly acts as a helpful reminder to avoid overemphasising the meaning and significance of dramatic occurrences, especially when viewed from close at hand.

It seems, perhaps, that we should seek to understand the history of youth justice as multi-dimensional, represented both in terms of dramatic shifts, innovation and ‘breaks’ with the past, on the one hand, and, on the other, as the repository of much longer-standing and consistent currents of opinion and influence, which may be less immediately visible, but nonetheless of greater significance in the long term.

Back to the 1980s: another world?

The choice of the 1980s as the starting point for this contemporary historical overview is clearly somewhat arbitrary, at least in part pragmatically determined by the extent of the author’s experience of working in youth justice. However, it is also a long enough period to give us a sense of continuity and change as outlined above, and it enables us to contrast periods of government, which represents a very important backdrop to our analysis.

This point in history is also a useful line of demarcation between two eras in youth justice, and therefore offers some relatively clear indicators of transition and change, which in turn help to clarify some of the persistent dynamics and tensions that will be observable over time. The preceding period, for example, had been characterised by the emergence of ‘welfare’ rhetoric as an influential theme, paralleled by a very substantial increase in the institutionalisation of children and young people on grounds both of care need and offending behaviour (see Thorpe et al., 1980). Despite this, the incoming Thatcher government of 1979 made much of the threat to the social fabric offered by deviant young people (and other groups, such as striking miners), who collectively attracted the epithet ‘the enemy within’ (Milne, 2004). The polarising nature of the political rhetoric of the time, the increasing sense of ‘us’ and ‘them’, was mirrored in examples of unrest such as the ‘riots’ of 1981 and 1985 (Davies, 1986), and this in turn was associated with a ‘racialisation’ of difference, reflecting a persistent theme in ‘law and order’ discourses (Hall et al., 1978).

Ironically, then, whilst on the one hand more and more young people were already being incarcerated, the political mood was geared towards being ever tougher on deviant behaviour in general and the crimes of the young in particular. The incoming Conservative government immediately delivered on its pre-election promise to introduce the ‘short, sharp shock’ regime in two detention centres for 11–14 year olds, for example (Conservative Party, 1979), an ‘experiment’ that was subsequently extended to other custodial settings and all detention centres (Pitts, 1988), notwithstanding evidence of its abject failure (Thornton et al., 1984).

The punitive mood was also reflected in the White Paper Young Offenders (Home Office, 1980), which emphasised principles of individual responsibility and ‘just deserts’, at the expense of more welfare-oriented models of intervention. This, though, pleased some liberal critics of ‘treatment’-based interventions, which had effectively drawn young people into the ‘net’ without the safeguards of due process (Morris et al., 1980). Signposted by the White Paper and included in the subsequent Criminal Justice Act 1982 were a number of measures designed to impose tighter controls on young offenders, in the community as well as in custody. Among these were the Night Restriction Order (curfew) and Supervised Activity Order. The overall objective of the youth justice system seemed to have shifted from one of rehabilitation to one of crime control, and, indeed, risk management.

In addition to these changes in community disposals, custodial sentencing practice was also significantly modified by the 1982 Act; in particular, the indeterminate Borstal regime was replaced by a new sentence of Youth Custody, and this, alongside the ‘short, sharp shock’ initiative, suggested an overall shift of emphasis away from rehabilitative goals and towards ‘just deserts’ (McAra, 2010) and control. This change may not have led to the expected outcome in due course, but it is of symbolic significance nonetheless, to the extent that it set the tone for practice at all levels of the justice system over the ensuing period. The emergence of a relatively uncomplicated ‘tariff’ of disposals, allied with a commitment to crime control, suggested that the focus of interventions would be the behaviour of young people, rather than their individual needs and circumstances.

Interestingly, though, the corollary of this framework was that the measures adopted to deal with youthful misbehaviour should, indeed, be proportionate. Bottoms (1977) had already articulated the emerging logic of the justice system in general in the direction of ‘bifurcation’, whereby clear and wide distinctions could be made between the relatively small group of ‘dangerous’ offenders, whose behaviour should lead to draconian measures, and the remainder, for whom much less severe sanctions would be appropriate, given the relatively minor transgressions for which they were responsible. In practical terms, this logic was pursued by the government in the early 1980s, coincidentally a time when spending constraints were severe, and a number of measures were introduced to give effect to the aim of distinguishing between serious crimes and the rest. These included the Intensive Intermediate Treatment initiative (DHSS, 1983), which was intended to operate by ‘broadening and strengthening existing non-custodial provisions’, and by following the principle of greater control in the community, assisting ‘the courts to avoid a custodial sentence except where one is absolutely necessary’ (NACRO, 1987: 11). A sum of £15 million was made available for the development of more intensive (and credible) alternatives to custody, creating an additional 4,500 places in the community for the supervision of young people whose offences would otherwise have resulted in custodial sentences. As Hudson (1987) put it, the era of ‘net-widening’ was to be superseded by one of ‘net-strengthening’.

Further evidence of this trend towards ‘targeted’ policy making emerged subsequently, with the publication of new guidance on ‘cautioning’ (Home Office, 1985), which actively promoted increased use of disposals short of prosecution in minor cases, also supporting the use of ‘informal action’ by the police. This approach followed the argument of the earlier White Paper (Young Offenders; Home Office, 1980), which had argued that ‘juvenile offenders who can be diverted from the criminal justice system at an early stage in their offending are less likely to re-offend than those who become involved in judicial proceedings’ (quoted in NACRO, 1987: 15). As well as underlining the logic of bifurcation, the 1985 cautioning guidance also introduced new elements into the mix, promoting the use of a range of interventions, including encouraging young people to make amends for their offences, by way of apologies and direct or indirect reparation to victims or the community. In this respect, it can be seen that, as McAra (2010: 292) has observed, most criminal justice jurisdictions do not reflect a ‘pure’ version of any one model of intervention, but usually draw from a number of alternative paradigms.

The combined effect of these policy measures enabled the then government to maintain its reputation for being tough on crime, whilst at the same time meeting other policy objectives through a ‘targeted’ approach, which could simultaneously keep costs down and reduce pressures on the machinery of criminal justice. By the latter stages of the decade, the government felt able to take this strategy further with the publication of the consultation document Punishment, Custody and the Community (Home Office, 1988), which maintained the appearance of being tough by foregrounding ‘punishment’, whilst at the same time maintaining the twin-track approach already in place. The document’s rhetoric appealed to government supporters’ sentiments with a commitment to crack down on violent crime and undue leniency in the justice process; but, at the same time, the detail was more nuanced. For:

[o]ther, less serious offenders, a spell in custody is not the most effective punishment. Imprisonment restricts offenders’ liberty, but it also reduces their responsibility; they are not required to face up to what they have done or to make any recompense to the victim or the public.

(Home Office, 1988: 1)

Significantly, the notion of taking ‘responsibility’ for one’s actions was contrasted with the experience of custody where most decisions are taken on the young person’s behalf.

The ideas developed in the consultation document found their eventual realisation in the Criminal Justice Act 1991, which according to some commentators epitomised the emerging ‘due process’ framework for dealing with young offenders (Haines and Drakeford, 1998). The legislative provisions applicable to all a...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Introduction
• 1 Contrasts and continuities: youth justice in the 1980s/1990s
• 2 The New Labour experiment
• 3 Coming full circle?
• 4 Where are we now?
• 5 Inside the machine
• 6 Making it happen
• 7 Theorising youth justice
• 8 Measures of success and failure in youth justice
• 9 The consumer view
• 10 Making sense of it all: the future of youth justice
• References
• Index