The Youth Justice and Criminal Evidence Act 1999 - Essay Example

The Youth Justice and Criminal Evidence Act 1999: An Analysis of the Compulsory Referral Order In 2002, results from the Institute of Public Policy Research (IPPR) indicated something seriously lacking in the U.K.'s youth justice system, particularly in it's response to young offenders. According to the IPPR's report, if the youth justice system was going to "prevent offending by children and young people," it was going to have to give consideration to "the home circumstances and the quality of life of young offenders (Arthur 2004)." In response, England and Wales undertook the task of redesigning the youth justice system in an effort to make it more responsive to young offenders' needs. The result was a collection of ideas based on the Scottish Youth Justice system, particularly the Scottish Reporter System. The Scottish Reporter System, introduced in the 1960s as part of the Children's Hearing System, is a system where those involved with youth who have offended or are at risk of offending make a referral requiring any services deemed necessary to put the child on the right track be provided. Those making referrals include police, schools, parents and social workers. Referrals are made to the Reporter, who then investigates the case and decides where it should go. "The Reporter must decide whether referrals should be discharged with no further action, whether they should be referred to a local authority social work department or whether the case should be referred to a children's hearing (Arthur 2004)." This is essentially what the U.K.'s referral order is, with just a few minor differences. The referral order was introduced in October 1999 as part of the Youth Justice and Criminal Evidence Act 1999. The order's primary aim is to keep first-time young offenders out of the court system and prevent them from re-offending. The Youth Justice and Criminal Evidence Act 1999 was a response to the White Paper, No More Excuses address that the Secretary of State presented to Parliament in 1997. The White Paper addressed specifically the issue of youth crime. "Today's young offenders can too easily become tomorrow's hardened criminals," Home Secretary Jack Straw said in a preface to the White Paper. "As a society we do ourselves no favours by failing to break the link between juvenile crime and disorder and the serial burglar of the future (Home Office 1997)." According to Straw, the general belief was that young offenders would "grow out of" their offending ways on their own. He said research showed otherwise and insisted something be done that could give young offenders that nudge in the right direction. Thus, the Youth Justice and Criminal Evidence Act 1999 introduced the referral order, a proactive approach to addressing juvenile crime. The office of the Reporter in Scotland would be akin to the Court of the Magistrate in England, in that they are the ones who refer a child to the family-conference style meetings - Scotland's Children's Hearing and England's Youth Offender Panel (YOP). However, while the Reporter has other options, "Part III of the Powers of Criminal Courts (sentencing) Act 2000 provides that the referral order is to become the standards sentence imposed by the youth courts, or other magistrates court (Arthur 2004)." The referral order is a sentence given by the court referring 10- to 17-year-olds, who have pleaded guilty to a first offence, to a youth offending panel. In Scotland, the age of an offender referred to a Children's Hearing is eight to 16. The order requires the offender and his parents or carer to meet with the youth offender panel and map out a course of action for the youth to help him get on the right track. The court sets the length of time a referral should last, or the compliance period. The compliance period begins once the offender and chair of the panel have signed the contract. By law, the compliance period can be no shorter than three months and no longer than a year. In cases where the offender was previously convicted of a crime, the offence is serious enough to warrant judicial custody, or the court is considering commitment to a hospital or absolute discharge, the youth is not eligible for referral. The same holds true for a Children's Hearing, in that a youth must plead guilty. Scotland's approach to the Children's Hearing is a little more proactive than the U.K.'s referral order in that it doesn't wait for a child to commit an offence. "The Scottish system provides an integrated system for dealing with children in difficulty whether they have been referred for reasons of allegedly committing an offence, non-attendance at school, or as victims of neglect or ill-treatment (Arthur 2004)." In other words, the Scottish Youth Justice Ssystem aims to help at-risk youth before they offend. Once a referral order is made, an offender is required to meet a minimum of three times with the youth offender panel. The panel consists of two volunteers from the local community and one member of the youth offending team. Meetings are attended by panel members, the offender and his parents or carer, and in many instances, the victim. Similarly, the Children's Hearing is a three-member lay tribunal made up of "male and female members who are selected to be representative of the community in terms of age, ethnicity, and occupational background (Arthur 2004)." In both cases, "The intention is that the panel will provide a forum away from the formality of a court where the young offender, his or her family, and where appropriate, the victim, can digest all the circumstances surrounding the offence with a view to addressing the offending behaviour (nacro.org.uk 2001a)." Paul Webb, a panel member from Wiltshire, describes his experience serving on the youth panel. "The result is a better young person with greater understanding of how offending behaviour affects a whole group of people and not just them. I have seen emerge a friendlier young person, with better self-esteem, increased confidence and a more positive outlook on life (yjb.gov.uk 2007 whats it like)." During the first meeting all those involved devise a contract outlining the agreed upon course of action for the youth. These actions can include a letter of apology to the victim, reparations to the victim or community, community service, rehabilitation if necessary, and, in some cases, returning to school or becoming gainfully employed. "The aim of the contract is to repair the harm caused by the offence and address the causes of the offending behaviour (yjb.gov.uk 2007)." If a youth fails to sign the contract or abide by it, he can be referred back to court for more stringent sentencing. The Children's Hearing will either discharge the case, an option the YOP does not have, hand down a residential supervision order which remands the child to his parents or anothers custody, or hand down a supervision order. A supervision order is essentially the plan of action come up with during the initial YOP meeting: "A supervision order can include a large range of conditions applicable to the child, including who the child is to live with (and) who they may have contact with . A supervision order is flexible enough to be interpreted as a probation order, a community service order, a reparation order, or any combination of these depending on the precise circumstances of the child's case (Arthur 2004)." The second and subsequent meetings are progress meetings to review the contract and review how well the youth is abiding by it. The panel is required to call a progress meeting if the young person wants to amend the contract, the youth asks for the case to be referred back to court because he believes the contract is impractical, or the panel believes the youth is not complying with the contract. The final meeting takes place when the compliance period is about to expire and has the purpose of deciding whether the terms of the contract have been satisfied. If the youth has met all established goals, his offence will be discharged when the compliance period ends, giving the offender a clean slate. If the panel feels the offender did not meet all objectives, the case will be referred back to court for further review. Probably the most important aspect of the referral order is this idea of a second chance. Rather than taking the approach of "lock them up and throw away the key," first-time offenders are given a chance to redeem themselves and turn their lives around. Some have heralded the referral order for putting youth justice "in the midst of a potentially radical shift from being exclusionary and punitive to becoming inclusionary and restorative (Goldson and Muncie 2006)." "Panel meetings give young people a big wake-up call. They are made more accountable when they have to turn up and explain what they have done and why they have done it. Most of the time they are scared about the whole process, some might have made a stupid mistake and have to face up to their parents and even the victim and it makes them think, 'I don't want to do that again,'" said Pamela Gamble, a panel member from Nottinghamshire. She goes on to say that "I know all too well from my current profession (Employment trainer for the homeless and long-term unemployed) how a criminal record can affect your chances of getting a job. I want to help steer these young people away from crime and give themselves a chance in life (yjb.gov.uk 2007 what it's like)." Theorists agree that the informal setting of these panels seems to promote the opportunity for young people, their parents, community members and yot members to discuss the child's offence, their reasons for committing the offence and the consequences of their actions as well as what they can do personally to make up for what they have done. "The response of all the major participants in the process to date has been largely supportive of the general principles underlying referral orders (Muncie, Hughes and McLaughlin 2002)." Another unique aspect of these panel meetings is the opportunity for the victim of the crime to meet with the offender. "If they want to, they (the victim) can tell a young offender just how their offence affected them and be involved first hand in steering them away from a life of crime (yjb.gov.uk 2003)." This approach can be therapeutic for the victim and eye opening for the offender. Lord Warner, chair of the Youth Justice Board, called the referral order "a radical approach to dealing with first-time young offenders in England." He said victims who have attended these meetings indicated a reduction or even elimination of their anger and fear (yjb.gov.uk 2003). Karen, a victim of house burglary, said attending the panel meeting was therapeutic for her. "I was expecting a monster and what I saw was this adolescent girl. For me, it took the fear element away." While most of the victims that have been involved in the panel process "reported a high level of satisfaction," not all came away without the fear as Karen did. One victim said he "worried if I asked for something, he might come back at me later on, I was worried for my wife." The therapeutic benefit extends to the offender as well in that he is able to see and hear first-hand the effects of his actions. "Early results show that a young offender and a victim meeting face-to-face can be a powerful and positive experience for both (yjb.org.uk 2007 what is it)." Beverly Hampson, a youth offender panel member from Cardiff, agrees. "Youth offender panels give youngsters the ability to verbally own up to what they have done and apologise," she said. "It's very therapeutic, watching that young person slowly understand that everything you do in life has an impact on other people (yjb.org.uk 2007 what it's like)." Some theorists disagree with having the victim in attendance, noting that it "simply does nothing for the child in trouble (Goldson 1999)." In fact, they argue the only outcome of having a victim there is to shame the child. In Contemporary Policy and Practice, Goldson takes a rather heated stance when he says, "it is about naming and shaming: the denunciation of the child and nothing else It is the welfare of the child or young person that should be a paramount consideration, not the perceived need of society to extract a pound of flesh." Not everyone agrees that the referral order is a good thing. In their book, Comparative Youth Justice, John Muncie and Barry Goldson concede that evaluations done on the youth offender panels indicate positive results, particularly in the area of communication, noting those evaluations have "lauded the more positive lines of communication that have been opened up between offenders, parents, victims and communities. (Goldson and Muncie 2006)." However, the two worry that the lines of personal rights are being crossed and young people are not being represented, as they should be. "Article 6 of the Human Rights Act provides for the right to a fair trial with legal representation and a right to appeal," yet "the introduction nationwide of referral orders with lay youth offender panels deliberating on 'programmes of behaviour' with no legal representation would appear to deny such rights (Goldson and Muncie 2006)." The Scottish System has endured similar criticism as defined in the U.S. Supreme Court decision In Re Gault, "which condemned a system whereby juveniles could be subjected to long periods of detention in various forms of institutions without rights to due process, such as the right to counsel, rights against self-incrimination, and other rocedural protections automatically accorded to adult defendants in criminal trials (Arthur 2004)." Goldson also expresses the concern that by offering the option to go to youth offender panel meetings, and essentially wipe the slate clean, the referral order is akin to dangling a carrot in front of a horse, leading an offender and his family to make the rash decision of pleading guilty. "Such a system of quasi-diversion holds out many dangers of injustice, not least the perverse incentive to enter a guilty plea promptly possibly without the benefit of adequate and competent legal advice. (Goldson 1999)." Goldson also argues that because some of the offenders are as young as 10, they might not be able to fully comprehend what is being addressed in the contract and cannot stand up for themselves. He questions a young person's "capacity to be fully responsible for their actions at such an early age (Goldson 1999)." Julia Fionda agrees, noting that to fully participate in the panel meeting "requires a degree of articulacy, confidence and self-awareness on the part of offenders which past experience in the youth court has already demonstrated they often do not possess ( Fionda 2005)." Fionda goes a step further in stating that the young offender is essentially being forced into these meetings and made to sign the contract under duress. "The offender is indeed in such a weak bargaining position, having little to bargain with and a great deal to lose, that this contractual process would be considered voidable for duress, had it any force in civil law (Fionda 2005)." She argues that this theory throws the offender from one extreme of sitting back and being told his sentence to the other extreme of having to devise his own sentence through the contract. Many theorists have conceded that the idea of family conference meetings, which is the idea that formed the basis for the youth offender panels, is a sound one and has been successfully employed in many regions. However, they say the meetings should be balanced and focus on the therapeutic aspect rather than taking a punitive view. These theorists say that is not being done. "It is imperative that the underlying philosophy of family empowerment, which was the very raison d'etre for their inception in New Zealand, does not get lost in a crude attempt to make them fit into a philosophical framework underpinned by punishment and retribution (Goldson 1999)." Goldson says the underlying punitive aspect of the youth panel meetings could lead to "an environment of hostility and blame," and that it is "important that family group conferences not be conducted in this way." Many of the disadvantages agreed upon by government researchers and civilian theorists are the logistical problems. Both sides cite recruiting, training, victim participation, and funding as problems, though local yots are already addressing many of those problems. In its final report on the referral order, the Home Office in 2002 noted that "the referral order presented a series of novel challenges to those tasked with its implementation (including): 1. the recruitment, training and management of large numbers of voluntary community panel members 2. The establishment and running of youth offender panels chaired not by professionals but by community panel members 3. The active involvement of parents/guardians, victims and others in the criminal justice process, and 4. The agreement of contracts with young offenders that both help challenge offending behaviour and allow for constructive activities including reparation (Home Office 2002)." Recruitment of volunteers did not seem to be a problem, as people who have never volunteered before came forward to help. What posed a challenge for the panels was finding a representative force of volunteers. However, Home Office stated in its report that the "Yots have continued to recruit in sufficient numbers and are developing strategies for broadening the base from which they recruit." As for establishing and running the panels, the problem arises in that the court is issuing the order, but the local Yots are footing the bill. "The referral order bears its own costs in terms of recruiting and training volunteer members of the panel, utilising the resources of the Yot, arranging and finding premises for meetings, supervising offenders under the contracts and providing the rehabilitation and mediation services required under the terms of the contract (Fionda 2005)." In essence, the local agencies are being subjected to more work and no additional monies. Funding is the primary source of criticism of both systems. Arthur notes that the initiatives introduced in England are not a priority and are funded in such a way that they are being "developed and implemented in a piecemeal and incremental fashion (Arthur 2004)." Home Office seems to think the panels work, noting in its report "In a short period of time referral orders have gone from being an interesting set of proposals to a generally robust set of working practices that look set to have a considerable impact on the youth justice system in England and Wales. However, it is hard to substantiate this claim, as no hard evidence of reoffending is available. The Youth Justice Board in 2003 said, "The introduction of Referral Orders in April 2002 has made comparison with the previous six month data difficult, as offences which previously would not have been counted as a community penalty (such as fines and discharges) are now counted in the Referral Order. (yjb.gov.uk 2003)." References Arthur, Raymond. 2004. Young Offenders: Children in Need of Protection in Law & Policy, Vol. 26, Nos. 3 and 4. Fionda, Julia. 2005. Devils and Angels Youth Policy and Crime. Hart Publishing. Portland, OR, USA. Goldson, Barry. 1999. Youth Justice Contemporary Policy and Practice. Ashgate Publishing. Brookfield, VT, USA. Goldson, Barry and Muncie, John. 2006. Comparative Youth Justice. Sage Publications. Thousand Oaks, CA, USA. Home Office online. 1997. No More Excuses: A New Approach to Tackling Youth Crime in England and Wales. http://www.homeoffice.gov.uk/documents/jou-no-more-excusesview=Html Home Office online. 2002. Home Office Research Study 242 The Introduction of Referral Orders into the Youth Justice System Final Report. http://www.homeoffice.gov.uk Hughes, G., McLaughlin, E., and Muncie, J. 2002. Youth Justice Critical Readings. Sage Publications. London. NACRO online. 2001. A Brief Outline of the Youth Justice System in England and Wales as at December 2001. http://www.nacro.org.uk NACRO online. 2005. Youth Crime Briefing: The Referral Order. http://www.nacro.org.uk OPSI online. 1999. Youth Justice and Criminal Evidence Act 1999. http://www.opsi.gov.uk/acts/acts1999/90023--a.htm Youth Justice Board online. 2003. Youth Justice Board Renews Call for Consistent Sentencing. http://www.yjb.gov.uk Youth Justice Board online. 2003. Members of the Public Take Action in Over a Quarter of Sentences for Young Offenders. http://www.yjb.gov.uk Youth Justice Board online. 2007. Youth Justice System Referral Order. http://www.yjb.gov.uk/en-gb/yjs/SentencesOrdersandAgreements/ReferralOrder/ Youth Justice Board online. 2007. Youth Offender Panels - What is it http://www.yjb.gov.uk/YouthOffenderPanels/Whatisit/ Youth Justice Board online. 2007. Youth Offender Panels - What's it Like http://www.yjb.gov.uk/YouthOffenderPanels/WhatsItLike Read More