TIME FOR A NEW HEARING ANNEX A
INTERNATIONAL ANALYSIS: PANELS, TRIBUNALS AND COURTS
1. This Annex analyses in detail 16 community panel, tribunal and court systems around the world. They deal with accusations of crime and anti-social behaviour, mainly by children, and a selection of other public or civil law decisions. Each system is covered by a template setting out in a standard format how it works, available statistics and main research findings. The format is designed to assist access to particular types of information and comparison of the different systems. The material is descriptive, i.e. of the systems and known research findings. This material formed the basis for our conclusions as to what these systems might and might not offer as models for reform of how child offending and anti-social behaviour is dealt with in England and Wales. It is correct as at the date of research (2009-2010).
2. The Annex covers, in alphabetical order: Asylum and immigration tribunal, UK Canada, custody reduction Drug courts, England Family court, England and Wales France, inquisitorial court Germany, age flexibility Guernsey, Child Youth and Community Tribunal Mental health tribunal, England New Zealand family group conferencing Northern Ireland youth conferencing North Liverpool Community Justice Centre Referral orders, England and Wales South Africa, multi-level gatekeeping. Scotland, Children’s Hearings US Red Hook Community Justice Center US drug courts MODEL ASYLUM AND IMMIGRATION TRIBUNAL - UK
BACKGROUND The Asylum and Immigration Tribunal (“AIT”) is to be transferred into the unified Tribunal Service as of 15 February 2010. It was not transferred initially in 2008 given that a new system had only be instigated; the AIT replaced the Immigration Appellate Authority and the new system has been in force from April 2005. A specialist Immigration and Asylum Chamber is to be established under the First Tier and appeals from this will be heard by the Upper Tribunal. The new chamber will hear appeals of decisions from the United Kingdom Border Agency (“UKBA”). The Asylum and Immigration (Procedure) and (Fast Track) Rules 2005 will be modified in order to become the rules of procedure for the new chamber.
CATEGORISATION The tribunal is an appellate court for decisions made by the UKBA. Eligibility to appeal is prescribed by statute. Hearings are presided over by one or more immigration judges who may be accompanied by a combination of legal and non-legal members of the tribunal. Special rules apply regarding procedure if the initial appeal is heard by a panel of 3 immigration judges.
GATEWAYS Eligibility to appeal must be fulfilled given there is no automatic right to appeal to the tribunal. Only persons subject to an ‘immigration decision’ may appeal a decision made by the UKBA.
SIDEWAYS None. REFERRALS CLIENTELE There is no automatic right of appeal to the tribunal. Only persons subject to an ‘immigration decision’ may appeal decisions of the UKBA. This is defined by s. 82(2) of the Nationality, Immigration and Asylum Act 2002 (“NIAA”). A number of further exceptions exist; (not exhaustive) (i) case certified under s. 96 NIAA; (ii) case certified on grounds of national security under s. 97 NIAA; Appeals may be brought by persons in detention or otherwise and present in the UK or otherwise.
INVESTIGATION All hearings will have a case management review hearing (“CMR”). Such is considered a hearing in its own right as the tribunal has the power to dispose of proceedings under rule 15 or 19 of the procedure rules. The general rule is that appeals must be heard by way of a hearing under rule 15, however, there are some key exceptions to this: (not exhaustive) (i) the appeal lapses, is abandoned or withdrawn; (ii) the parties consent to determination without hearing; (iii) the appellant is outside the UK and has no representative; (iv) a party has failed to comply with a provision or provide a satisfactory explanation and the tribunal is satisfied it can be determined without a hearing; (v) the tribunal considers the appeal can be justly heard without recourse to a hearing. In this last exception the tribunal must give the parties notice to allow for their representations if required. Tribunal hearings will be heard in public under rule 54 of the procedure rules. This does not limit the power of the tribunal to exclude any persons in the interests of justice. One exception to this is a hearing under s.108 NIAA in which the allegation will be in relation to forged documents. In respect of children’s cases it should be considered whether the hearing should be heard in private. In this situation an order should be made to exclude all persons from the hearing. Listing will take into consideration that children’s cases are to be heard at the earliest available date and first on the list (guidance note 8). The appellate authority must proceed in the absence of a party provided that notice of the hearing has been given and no satisfactory explanation has been provided. This power is under rule 19 of the procedure rules. Applicants are entitled to legal representation at all stages of the process. The Community Legal Service (Financial) (Amendment) Regulations 2010 amend the Community Legal Service (Financial) Regulations 2000 to apply financial eligibility criteria for applicants under the new Immigration and Asylum Chamber. A child friendly atmosphere should be created where relevant. This may include moving to chambers or a round- table setting. Efforts should be made to introduce the personnel in the room providing explanation of their role and proceedings*. The tribunal will generally hear both oral and documentary evidence even if it would not be admissible in a court of law under rule 51. Consideration must be had in relation to the age, maturity, capacity and cultural differences of child witnesses in relation to whether they should be permitted to give evidence*. Where permitted, questioning must be sensitive to the circumstances of the child and use simple language*. Furthermore, the tribunal may give directions as to the conduct of proceedings (rule 45) and has the power to issue witness summonses (rule 50). Where an appeal has been dismissed, the applicant may apply to the tribunal for review of the decision on the grounds that it erred in law. This must be done within 5 days of receipt of the determination (28 days for those outside the UK). If this is also dismissed, leave is required from the tribunal to appeal to the Upper Tribunal. If leave is not granted, the appellant may apply directly to the Upper Tribunal for permission to appeal under s. 21 Tribunal Procedure (Upper Tribunal) Rules 2008. From the Upper Tribunal the route of appeal is to the Court of Appeal. It is important to note that where an appeal is heard by a panel of three immigration judges, the appeal route is directly to the Court of Appeal by virtue of s. 103E NIAA.
*taken from guidance note 8 – dated 2004 but seemingly still applicable.
RESPONSES In children’s cases involvement from outside agencies in the form of expert witnesses should be considered, for example, in relation to the health and development of the child and capacity to give evidence at the hearing (guidance note 8). A statutory duty now exists under s. 55 of the Borders, Citizenship and Immigration Act 2009 whereby all employees of the UKBA and those acting under their auspices must safeguard and promote the welfare of children. According to UKBA guidance this extends to conduct in the course of the appeals procedure.
GROUPS/GANGS Special provisions allowing familial appeals to be heard together under rule 20 of the Procedure Rules.
COMPREHENSION Applicants are entitled to a translator when giving evidence and in any other circumstances the tribunal deems necessary under rule 49A. This will include at the case management stage where an applicant’s representative is not in attendance.
TIME The tribunal will follow the same time limits as the AIT. Non- detained appellants must submit their appeal forms within 10 business days of notice of decision. Late submissions must be accompanied by a statement explaining reasons for delay will be considered by a tribunal judge. An extension of time to appeal may be allowed if the judge is satisfied that it would be unjust not to do so. Detained appellants have 5 business days to submit their appeal. Appellants under the fast- track procedures must comply with a 2 day time limit. Late submissions are dealt with in a slightly different way. Late applications will still be listed for hearing and will consider as a preliminary point whether to extend time to lodge the appeal. This process allows oral representations to be made which is not available under the other categories.
CONTROL OVER Outside agency involvement, other than the UKBA, is usually only in the form of expert witnesses or SERVICES translation services.
MONITORING AND The delivery of the service of the tribunal is heavily prescribed by statute. As such errors in law can REACTING provide the basis of grounds for appeal. As identified above appeals can be taken to the Upper Tribunal and from there to the Court of Appeal.
CASE NUMBERS No information as yet, system due to come into force on 15 February 2010. AND COSTS
OUTCOMES Not applicable.
RECORDS Not applicable. POSITIVES/ Unreported decisions of the AIT are not searchable for use and citation by practitioners and no NEGATIVES transparency as to the criteria used for determining those that are reported (Immigration Law Practitioners’ Association). Time limits in respect of Upper Tribunal are unfair – unreasonable to provide one day’s notice of hearing under r.36(2)(aa) – the fact of detention should not override opportunity to have reasonable time to prepare and present case In relation to children, new procedural rules should be enforced to include immediate and long term best interests, non- discrimination and effective participation. Guidance should taken into account the age, maturity and experiences of children in line with international obligations. No specific power of the tribunal to appoint a litigation friend for children or vulnerable adults.
CHANGES UK reservation to the UNCRC in relation to immigration and citizenship was lifted in 2008.
CONTEXT Often the content of applications for asylum is based on humanitarian concerns. The UKBA produces operational guidance notes for country- specific claims which outline the general, political and human rights situation of the country. These are updated on an ad hoc basis and will shape the context of the claims before the UKBA and consequently the tribunal.
REFERENCES Legislation: Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 Asylum and Immigration (Fast Track Time Limits) Order 2005 Asylum and Immigration Tribunal (Procedure) Rules 2005 Tribunal Procedure (Upper Tribunal) Rules 2008
Asylum and Immigration Tribunal Practice Directions, Consolidated Version (2007) http://www.ait.gov.uk/Documents/CaseLaw/PracticeDirections/2007PracticeDirs30apr07.pdf
Asylum and Immigration Tribunals, Guidance Note 8: Unaccompanied Children (2004) http://www.ait.gov.uk/Documents/CaseLaw/PracticeDirections/GuideNoteNo8.pdf
Immigration Law Practitioners Association, Response to Practice Directions (2009) http://www.ilpa.org.uk/submissions/09%2011%2023%20ILPA%20response%20on%20practice%20directions.pdf Royal College of Paediatrics and Child Health et al., Intercollegiate briefing paper: Significant harm: the effects of administrative detention on the health of children, young people and their families (2009) London: Royal College of Paediatrics and Child Health http://www.scie-socialcareonline.org.uk/profile.asp?guid=435fb14f-7b2f-47cf-99fd-8aa7b93519ac CANADA - CUSTODY REDUCTION
The overview paper on Canada prepared for the Independent Commission on Youth Crime and Anti-social Behaviour (Bala, Carrington and Roberts, below) contains useful information about the Canadian strategy leading to reduced custody without increasing crime. It is clear from this that the strategy was not based on procedural changes relevant to the work of our report, albeit that there is some material of interest on diversion and courts when considering custody.
Summary The 2003 Youth Criminal Justice Act reforms were designed to meet with public concern about a small number of highly publicised violent crimes and professional, youth organisation and academic concern about large numbers of less serious adolescent offenders going through the courts and into custody. The main planks of the reforms were more structured diversion (see below), reformed statutory YJS purposes and principles, restrictions on pre-trial detention (which have proved ineffective), tighter sentencing purposes and principles, specific statutory restrictions on the use of custody, new community sentences including e.g. an ISSP equivalent and a (little used and legally challenged) power to sentence the most serious young offenders as adults. The authors do not discuss gate-keeping or trial processes, and it is clear that the system remains a classical court-based ‘justice model’ system broadly similar to that in England and Wales - albeit with substantial pre-court diversion reaching 55% of cases by 2007. The reforms substantially reduced custody use, though from a very high to still-high level – 27% of sentenced cases in 2002-03 down to 17% in 2006-07 (526 down to 219 per 100,000 youth population). The authors attribute this to the stronger sentencing principles and restrictions, an extensive professional education and support programme before implementation and the support of both the police and probation services for diversionary principles plus (for the police) the practical benefits of greater speed and simplicity in dealing with cases.
Detail on diversion The article summarises without much procedural detail the main elements of the reformed diversion system: ‘Extrajudicial sanctions’. Non-court community-based programmes to which police and crown prosecutors can refer apprehended young people instead of charging them: e.g. Family Group Conferencing, restitution, community service, counselling. Youths must have accepted responsibility for their acts and receive no criminal record but if they reoffend their participation or otherwise in diversion may be a factor in how they are subsequently dealt with. ‘Extrajudicial measures’. Options as under extrajudicial sanctions plus police oral warnings, written cautions or ‘take no further measures’ but discussion of the situation with the young person and perhaps their parents. The Act (s.6) says police ‘shall’ consider taking such measures rather than initiating judicial proceedings and (s.4(a)) contains general statutory recognition that they are often the most appropriate and effective way to address youth crime. In some areas the police give young people just the one diversion chance, in others two or three before taking them to court. The role of crown prosecutors is not detailed separately. Judges play a limited role in diversion: they can informally signal that a case should be diverted (no detail given) or impose a reprimand in case which they think ought to have been diverted.
Point on trials There is no general discussion of trial processes but one passing comment of interest to us: Under s41, prior to imposing custody a court must consider a PSR plus any sentencing proposal made by the young person or their counsel and also the judge may himself/herself convene a conference or refer a case to a community-based conference before imposing sentence. No detail is given except that the conference might facilitate receiving advice from family or community members or allow for a victim-offender meeting before sentencing.
Reference
Youth Justice Reform in Canada: Reducing use of Courts and Custody Without Increasing Youth Crime. Nicholas Bala, Peter Carrington and Julian V. Roberts. April 11, 2009 MODEL DRUG COURTS - ENGLAND
BACKGROUND The purpose of the Dedicated Drug Court is to reduce reoffending by better understanding the motivations of drug misusing offenders, increasing their participation in drug treatment programmes and increasing the levels of sentence compliance. A pilot scheme was launched in 2005 based at two adult magistrates’ courts, Leeds and West London. These were chosen on the basis of being areas of high crime and potentially drug-related crime, having programmes for drug testing and treatment and having provisions for Restrictions on Bail* in place. Leeds had already developed an almost identical model to this, reviewing offenders throughout their sanctions since 2001. * provides a restriction on bail in the case of adult defendants testing positive for a class A drug in connection with the offence. Offenders not agreeing to assessment of their dependency or follow up treatment following this may be denied bail.
CATEGORISATION The Dedicated Drug Court (DDC) is a specialist forum for dealing with criminal matters relating to drug- misusing offenders. Offenders are referred to the DDC for sentencing and management of the drug rehabilitation requirement (DRR) sanction until completion. A DRR is the successor of the Drug Treatment and Testing Order (DTTO), replaced by the Criminal Justice Act 2003. It is one of the requirements which can form part of a Community Order (CO) or is available as part of a suspended sentence. It requires that an offender undergo a treatment programme with regular drug testing and appearance for reviews by the DDC. They can be applied with a category of low, medium or high intensity for a period of between 6 months and 3 years. Currently a pilot scheme across the UK, the DDC framework is based upon five principles: (1) Specialism: the court deals exclusively with drug-misusing offenders. (2) Continuity: the court aims to provide continuity of judiciary throughout. (3) Training: judges and court staff receive additional training on working with drug-misusing offenders and the DDC model. (4) Processes: improved processes designed to ensure all relevant information is before the court. (5) Partnership: ensuring an effective multi- disciplinary approach between criminal justice agencies and professionals.
GATEWAYS The allocation of offenders to the DDC has differed slightly between the two pilot schemes: (1) Leeds: (i) After conviction the magistrates court will adjourn for sentence in the DDC; (ii) A pre-sentence report (PSR) will be prepared on the suitability of a DRR disposal; (iii) The DDC will sentence and manage the offender. (2)West London: (i) After conviction the magistrate will assess the requirement for a sanction to address drug use; (ii) The court will adjourn for a fast- track PSR; (iii) After consideration of the PSR the court may adjourn if a DRR assessment necessary; (iv) If the offender is deemed suitable for a DRR, the court will adjourn to the DDC for sentencing; (v) The DDC will sentence and manage the offender.
Note that a full range of sentencing options is available to the DDC. A CO with a DRR requirement is the most likely disposal given that it has been identified as being suitable through the allocation process. There have been circumstances where the offender has already been sentenced to a CO with a DRR by the convicting court. In these situations the offender will be referred to the DDC for the review and management of the DRR.
SIDEWAYS Possibility for those undergoing treatment through Criminal Justice Integrated Teams (CJIT) to be referred into a DRR. REFERRALS
CLIENTELE All offenders eligible for a DRR and who reside within the jurisdiction of the court will be managed by the DCC. This also applies to those who are still subject to a Drugs Testing and Treatment Order (DTTO), the precursor to the DRR. Eligible for offenders from the adult magistrates’ court only. INVESTIGATION Referral to the DDC only occurs once an offender has been convicted of a criminal offence. From the outset there is a multi-disciplinary approach; from assessing the suitability of a CO with a DRR to imposing an individually tailored order and monitoring compliance to completion. Assessment is undertaken by the probation service and examines personal and social history, offending history and the circumstances of the current offence. Such information is provided to the court to ensure the most appropriate sentence is handed down in the offender’s particular circumstances. RESPONSES Once the offender has been sentenced to a DRR, the court will confirm the requirements under it. The DRR comprises a treatment requirement which may be offered as an in-patient, regular drug testing and periodic court reviews. The offender may also receive clinical treatment, access to day care programmes, health education or participate in activity programmes aimed at improving skills and career prospects. The intensity of the order is dependent on the circumstances of the offender and is measured in terms of interventions at low, medium and high levels. The success of the DRR requires the commitment and motivation of the offender. This is assessed during the allocation process of determining suitability for such an order. The agencies involved with the offender provide support in order to motivate the offender and ensure completion of the DRR. However, they also fulfil a monitoring role and will refer non-compliance issues back to the court to be dealt with (see ‘monitoring and reacting’ for further details) . GROUPS/GANGS No information available
COMPREHENSION The multi-agency approach affords the offender a complex network of supervision and support. It allows for the monitoring of compliance with the court order while allowing the offender to feedback concerns and issues both to probation and the court. Court hearings are informal and allow discussion of the progress of the offender, addressing any issues the offender has with the order and setting targets for the next review. Continuity of judiciary ensures that the court hearings are in the best interest of the offender allowing a rapport to be built with those supervising the court order. TIME Time involved with the DDC depends on the length of the DRR and its successful completion. Orders can range from 6 months to 3 years. While the DDC judges have the power to amend as a consequence of breach, they cannot extend the time period. CONTROL OVER The probation board and treatment providers will monitor ongoing compliance with the programme for SERVICES the duration of the order. Probation board may initiate breach proceedings in the event of non-compliance. The DDC will oversee review hearings to monitor compliance and progress.
MONITORING AND Failure to comply with the terms of order the will result in the initiation of breach proceedings which are REACTING brought before the DDC. These are slightly different in each of the pilots:
(1) Leeds: (i) If a probation appointment is missed the officer will issue a warning notice. (ii)The second missed appointment without valid reason will initiate breach proceedings. (iii) A hearing will be heard by the DDC. Failure to attend a breach hearing will result in the issue of a bench warrant for the offender’s arrest. (iii) The court may increase or revoke the order or re-sentence the offender. (2) West London: (i) Probation officers will decide whether to initiate proceedings for a breach. (ii) If proceedings occur as a breach of the DRR the offender will be dealt with in the ordinary court if he/she pleads not guilty. A conviction will then lead to sentence by the DDC. A guilty plea will be dealt with automatically by the DDC. (iii) If a criminal offence is committed during the DRR, the offender will be remanded to the DDC who will sentence or impose more onerous requirements. The DDC has the power to amend or vary the order, however, it cannot extend the time for which it runs. Judges retain the power to revoke the order and re-sentence the offender. The DDC also has a monitoring role, whereby the offender will attend review hearings. The probation officer will also be present and prepare a review report for the court. Progress will be discussed and targets set for the next review. CASE NUMBERS Direct cost of the DDC in its first year in Leeds was £37,924. AND COSTS Cost per offender £137 (based on 276 new offenders). Indirect cost of DRR’s per offender in Leeds: 12 month £4, 633; 18 month £5,826; 24 month £6,792. Direct cost of the DDC in its first year in West London was £25,551. Cost per offender £426 (based on 60 new offenders). Indirect cost of DRR’s per offender in West London: not available. The difference in cost was due to the two models being at different stages of development.
OUTCOMES Statistical analysis on the continuity of magistrate in Leeds* produced the following; (i) likelihood of missing a court appearance lowered (8-23% lower) (ii) likelihood of offenders failing a heroin test lowered (9-20% lower) (iii) likelihood of offenders completing their sentence increased (11-29% lower) (iv) likelihood of reconviction lowered (0.1-0.5 fewer) Overall, by increasing the continuity of magistrates by ten percent had an effect of reducing the number of new convictions by 5-26%. A robust analysis of the impact of the DDC on reoffending rates was not possible due to the difficulties in collecting control data to form a comparison. *The study could not be replicated in West London due to the small size of available sample. RECORDS A CO with a DRR requirement is a criminal sanction and will be registered on the offender’s criminal record.
POSITIVES/ The continuity of magistrates overseeing the offender throughout the course of the DRR has had a NEGATIVES notable impact on compliance and re-offending. CHANGES The original pilot scheme encompassed two courts; in Leeds and West London. Due to the successes of these courts, the pilot was extended in 2008 to four other areas; Barnsley, Bristol, Cardiff and Salford. CONTEXT REFERENCES Matrix Knowledge Group, Dedicated Drug Courts, A Process Report (2008) Ministry of Justice Research Series 7/08 http://www.justice.gov.uk/publications/docs/dedicated-drug-courts.pdf MODEL FAMILY PROCEEDINGS COURT – ENGLAND AND WALES BACKGROUND The present family courts system in England and Wales dates from the Children Act 1989. For child care issues it comprises the family proceedings court (i.e. magistrates’ court with family panel members presiding), County Court care centers and the High Court for appeals. The courts also deal with family finance and maintenance, adoption, non-molestation, occupancy and parenting issues.
CATEGORISATION A welfare-based child protection court.
GATEWAYS Child care applications are made by local authorities’ children’s services departments (or sometimes the NSPCC/other ‘authorised person’). They go to court when they want to intervene in family life to protect children’s welfare, mainly through Care Orders and Supervision Orders. Applications are in writing and local authorities are required to have extensive documentation ready for the first hearing. The court appoints legal advisers as case managers. There may be a preliminary procedural hearing, which a case manager or single magistrate can deal with. Pending a full hearing, a court may make an interim care order (ICO) to safeguard the child or preserve the status quo pending reports, assessments and/or statements of evidence. An ICO can run for 8 weeks, and then be renewed for 4 weeks at a time, though courts are expected to avoid cases drifting.
SIDEWAYS No provision for transfer to other courts or equivalents. REFERRALS CLIENTELE Children under 18 considered in need of care and protection [though in practice local authorities do not usually initiate action beyond age 15].
INVESTIGATION Family proceedings courts (an arm of the magistrates’ courts) comprise 3 magistrates - 3 lay ones from the ‘family panel’ or 2 plus a ‘family ticketed’ District Judge as chair; or if that is not practicable a District Judge sitting alone. Family panels comprise experienced magistrates selected for aptitude and personal suitability and ability to put the child’s welfare first. All bench members receive relevant training. Case preparation. As detailed more fully under Time, even as recently reformed this is comprehensive and lengthy. 3 formal stages which together can take 9 months precede the substantive Final Hearing: a ‘First Appointment’ to give case management directions; an Advocates’ Meeting plus Case Management Conference; and an Advocates’ Meeting plus Issues Resolution Hearing. Final hearing. The local authority is represented by its social work department. The child is party to the proceedings, normally present (the court decides when) and represented in court by a children’s guardian ( guardian ad litem) and/or a solicitor. (The court appoints the guardian from a panel to safeguard the child’s interests unless satisfied this is unnecessary in the particular case. The child/his or her family appoints the solicitor, but failing that the court can do so if this appears to be in the child’s best interests). Parents are covered by a general court power to order any person who is in a position to do so to bring the child to the court. The court may allow the child to give evidence if it considers that he or she understands the duty to speak the truth and has sufficient overall understanding to justify his or her evidence being heard. Parties can bring in expert witnesses (e.g. psychiatrist, psychologist, medical, independent/academic social work). The media can attend and the rules are currently being changed to allow some reporting (see Changes below). The court is expected to progress the hearing quickly. Written statements must have been read beforehand, and stand as evidence in chief i.e. without witnesses having to reiterate; any oral evidence given should have been covered in the written statements. If evidence is contested witnesses are cross- examined, which should be confined to clarification and updating. Hearsay evidence is admissible but as it cannot be challenged by cross-examination the court must carefully consider what weight to give it. Closing speeches are made by the applicant, the parent/guardian, the children’s guardian, [presumably] the legal representative and finally, ‘if appropriate and very rarely’, the child. The magistrates give their decision with reasons.
The following applies to Care and Supervision Orders but not Secure Accommodation Orders (see separate heading): The court must apply first the ‘Threshold Criteria’ then the ‘Welfare Principle/Checklist ’, as well as being subject to an overarching ‘No Order’ Principle. Threshold Criteria (a significant harm test). A finding of fact on a balance of probabilities, giving reasons, as to whether the child was suffering/likely to suffer significant harm and it was attributable to either the care/likely care not being what it would be reasonable to expect of a parent or the child being beyond parental control. The burden of proof rests with the local authority. If the test is met the court considers what if any order to make, following the principles below. This may be at the same hearing, or (if the court agrees, despite the undesirability of delay) at a later one (split hearing) if the applicant wanted clearance on the Threshold Criteria prior to detailed assessments and firming up its care or supervision plan proposals (see below re the latter). Welfare principle. Court decisions must put the child’s welfare as the paramount consideration. A supporting ‘welfare checklist’ highlights the child’s ascertainable wishes and feelings; physical, emotional and educational needs; the likely effect on the child of any change in circumstances; the child’s age, sex, background and any characteristics the court considers relevant; any harm the child has suffered or is at risk of; and parents/carers’ ability to meet the child’s needs. ‘No order’ principle. A court should not make an order unless it considers it would be better for the child than making no order at all. More generally the court must act justly, fairly and proportionately. Care Plans and Supervision Plans. Although the court makes the order, in practice it does so only when content with a Care Plan or Supervision Plan put forward by the local authority – on which other parties to the proceedings can comment. It cannot amend this so in theory has a straight choice between accepting or rejecting it, though guidance asks local authorities to be prepared to modify and resubmit ‘in the spirit of working together’. Interim Care Orders/Interim Supervision Orders (ICOs/ISOs). If necessary during a case the court can make an ICO or ISO, but only if satisfied that there are reasonable grounds for believing that the child is suffering or likely to suffer significant harm as in the Threshold Criteria.
Regarding the major exception: Secure Accommodation Order. A local authority looking after a child or health authority, NHS Service trust or LEA accommodating them can apply. Where the criteria are met (see Responses) the court must make this Order (subject to Secretary of State approval if the child is under 13). The welfare principle and the welfare checklist do not apply. The court must make findings of fact, and give reasons for the length of the order. The child must be legally represented or have been given the opportunity and refused or not applied. A children’s guardian should be appointed unless not necessary to safeguard the child’s interests. An authority already accommodating a child may put them in secure accommodation for up to 72 hours without a court order, but a court application must be made if longer is needed.
RESPONSES Care Order. The court needs to be satisfied on the significant harm Threshold Criteria (see Investigation). The Order places a child in the care of the local authority, giving it parental responsibility (shared with the parents, who can also be given relevant obligations to safeguard welfare) and requiring it to accommodate and maintain the child - if possible living with or near his or her family. Care orders last till the 18th birthday, unless terminated earlier and/or replaced by Residence, Adoption or Supervision Orders. Supervision Order. The court needs to be satisfied on the significant harm Threshold Criteria (see Investigation) .The Order places the child under the supervision of a designated local authority or officer e.g. social worker or probation officer. A children’s guardian should also be appointed unless not necessary to safeguard the child’s interests. The supervisor’s duty is to advise, assist and befriend and take any other specific steps the court orders; and the child may also be given obligations on how to act. The order lasts for up to one year, extendable by up to 2 more but must end by the18th birthday. The supervisor, child or parent can apply for early termination. Education Supervision Order. The court must be satisfied that the child is of compulsory school age and is not being properly educated. The Order places a child under the supervision of a designated local education authority. It can be in parallel with a Supervision Order but not with local authority care. The supervisor’s duty is to advise, assist and befriend, and take reasonable steps [to secure the child’s education]. The child and parents can be required to tell the supervisor of any change of address and allow him or her to visit the child. A parent who persistently fails to comply with a direction is guilty of an offence. Orders last for one year, extendable by up to 3 more and must cease by age 18. The child, parent or LEA can apply for early termination. If the Care Order or Supervision Order criteria are not met the court may instead make a Residence Order or Contact Order. Secure Accommodation Order. This must be made where it appears that the child (1) has a history of absconding and is likely to abscond from non-secure accommodation and if he or she abscond is likely to suffer significant harm; or (2) is likely to injure himself/herself or others if kept in non-secure accommodation. The order should be for no longer than necessary. It can run for up to 3 months, renewable by 6 month periods on a first application and up to 6 months on renewal applications. The family courts also deal with applications for more specialist and subsidiary orders, listed under Case Numbers and Costs below.
GROUPS/GANGS Offending as such is not dealt with by the Family Proceedings Court
COMPREHENSION Nothing in the Bench Book addresses this. Its case handling recommendations focus entirely on traditional legal process. TIME Since April 2008 there has been a general requirement under the ‘Public Law Outline’ (see Changes) to complete cases in 40 weeks (sic). The Outline sets out 4 stages: by day 6 ‘First Appointment’ to give case management directions; by day 45 Advocates’ Meeting then Case Management Conference (CMC); weeks 16 to 25 Advocates’ Meeting then Issues Resolution Hearing (IRH); then the Final Hearing, in principle by week 40. As at mid-2009 many cases took more than 4 stages and 70% were within the 40 weeks (see Jessiman et al: the figure is probably atypically high because the sample looked at completed cases).
CONTROL OVER The court solely adjudicates. As explained under Responses, cases are initiated by local authorities (or SERVICES occasionally the NSPCC or similar authorised body) which have already reached a view that they need to intervene in the child’s/the family’s life; and their applications for Orders are backed by proposed Care Plans or Supervision Plans. The court acts as a filter, albeit an important one for human rights. The local authority is responsible for implementing its own proposals, if they are approved.
MONITORING AND Courts do not monitor progress: that is solely the local authority’s responsibility, subject to general audit REACTING and inspection. CASE NUMBERS In 2008 the family courts dealt with 20,220 public law child care cases. The applications for mainstream AND COSTS orders described under Responses above amounted to 12,227 Care Orders, discharges and variations, 740 Supervision Orders and discharges, 210 Education Supervision Orders and 380 Secure Accommodation Orders. The other 6663 cases covered a wide range of issues/orders including contact with children in care, emergency protection, child assessment, recovery, parental responsibility , residence, contact and guardianship (Tables 5.3 and 5.4, Judicial and Court Statistics 2008, Ministry of Justice ) In 2006/07, the average cost of a care case was £4,244 in the county courts and £4,099 in the magistrates’ courts. (Figure from Public Law Family Fees Consultation Paper, Consultation Paper CP32/07. MoJ, 19 December 2007 [precise scope of cases unclear but appears to relate mainly to Care Orders]. OUTCOMES No details available on outcomes, in respect of offending or otherwise.
RECORDS No criminal records are involved.
POSITIVES/ Case management. Jessiman et al outline long-running, widespread problems with case length and NEGATIVES complexity: This stems not just from the challenging families dealt with (combining mental health, substance/alcohol abuse, crime, poverty and/or bad parental relationships (Masson et al. Case Profiling Study, MoJ Research Series 4/08, 2008) but also from difficulties with reporting, administration, judicial case management, partnership working, case timetabling. shortages of experts and ‘institutional factors’ within social services and courts administration (Booth Report ( Avoiding Delay in Children Act Cases. Lord Chancellor’s Department, 1996 and LCD scoping study on delay, 2002) In April 2008 statutory guidance introduced the Public Law Outline nationwide - to overhaul the processes. The revised standard stages with time targets are summarised briefly under Time above. Jessiman et al’s July 2009 early review with staff of progress suggests many problems persist: cases still running to more than 4 stages, with avoidable adjournments and probably less than 70% meeting the 40-week target, too few cases diverted from court proceedings, local authority compliance poor (reasons unknown), too often delays just shifting from the court stage to the case preparation stage; and cases proceeding without child guardians because of shortages. CHANGES Secrecy. The family courts have long been criticised for secrecy, operating to the detriment of children over whose future they have substantial power. The Justice Secretary recently announced (16.12.09) full media rights of access except where the welfare of the child or the safety and protection of parties or witnesses require it; and of reporting except to the extent necessary to protect the welfare of children and families involved.
Case management discussed under Positives/Negatives above. CONTEXT No points.
REFERENCES Family Proceedings Court Bench Book. Judicial Studies Board, April 2009 An early process evaluation of the Public Law Outline in family courts. Patricia Jessiman, Peter Keogh and Julia Brophy, Ministry of Justice Research Series 10/09, July 2009 MODEL FRANCE – INQUISITORIAL COURT
BACKGROUND Since 1945 French youth justice has been based on specialist inquisitorial courts and procedures focusing on the child’s background and providing ‘protection, support, surveillance or education’ - social education directed towards a well-adjusted and integrated adulthood being the primary focus of the system as a whole. From 1958 child protection ‘youth at risk’ proceedings were added, with powers to use residential education. Although the broadly social education/rehabilitative ethos and the specialist courts continue, since the mid-1980s political concern has increasingly emphasised personal responsibility for crime, protecting society and victims’ interests. More cases are now dealt with through prosecutorial rapid response powers, more disposals have a reparative or punitive edge and there has been a large investment in residential establishments for young offenders.
CATEGORISATION An inquisitorial courts system covering both offending (as a criminal matter) and child protection (as a civil matter), though with a majority of offenders now diverted to pre-court interventions directed by prosecutors. GATEWAYS The French system today has 2 levels of Prosecutor decision, together dealing with two-thirds of all arrested children: The Judicial Police are responsible for investigations and arrests. They do not e.g. caution on their own initiative but refer all arrested children to the Prosecutor. The Prosecutor is a generalist or in a larger areas a juvenile specialist accountable to the Ministry of Justice and in direct control of the Judicial Police. They can direct further police enquiries, see the child if necessary and then in all cases will decide the next steps. Often nowadays, under ‘real-time justice’ i.e. speedy justice procedures they they decide by telephone between prosecution and referral to their office for diversion/Alternative Measures, see below. Prosecutors now deal with two-thirds of cases without referral to court. They are assisted by Proximity Judges [also known as magistrates attached to prosecutors, prosecutors’ representatives or deputy prosecutors], i.e former members of the judiciary and police whom they appoint to deal on their behalf with minor crimes. The prosecutorial options are as follows: Prosecutor’s ‘No Action’. Prosecutors can decide on no action because they consider there was no crime, insufficient evidence or prosecution is not in the public interest. 45,000 (i.e. 26% of) cases in 2006 Prosecutor’s ‘Alternative Measures’ (AMs). Prosecutors can offer ‘alternative measures’ where the offence is minor, the child does not have a police record and they do not require specific care measures. 69,000 (i.e. 40% of) cases in 2006. [It appears that only basic enquires are made first. (Bailleau says there is no real evaluation of these young people’s social context or family background). AMs depend on an admission of guilt, and are decided by way of an offer to the suspect. (Roche suggests that the possibility of pre=trial detention if the person denies guilt creates a powerful incentive to co-operate which may breach Article 6 ECHR). The main AM options are a reprimand/reminder of the law, i.e. sentence the offence could have attracted (by a former police officer, gendarme or judge) (70% of AMs in 2005), mediation [about 5% -see next bullet), reparation (11%) and treatment requirements (1%). These ‘third way’ measures, delivered or organised by staff in the Prosecutors’ offices [a form of educational (i.e. social education) team, according to Bailleau), are described as broadly educational in intent but most are in substance simple interventions comparable to our own reprimands and final warnings. They are used to speed up justice, reduce the reach of what some see as the overly paternalistic Children’s Courts and ensure that all offending receives a specific response. Mediation has been much promoted but its actual content and usage appear limited. Rocheau implies that it consists of an interview with the Proximity Judge i.e. prosecutor’s assistant and agreement with them alone to e.g. repair damage to the victim’s property. Since 1999 a ‘penal composition’ variant has been available (for offences not imprisonable for more than 3 years) under which the child’s agreement is not required. The prosecutor can with the agreement of a ‘magistrate’ [presumably a children’s judge in chambers] decide on a warning and reparation. 1/3 of cases go on to court (60,000 [35 % of] cases in 2006), within which lie 2 further options (detailed under Investigation below): Children’s Judges’ ‘Pre-sentence Measures’ Trials, in 3 different levels of court
SIDEWAYS No mechanisms are identified in the literature; the Children’s Courts cover child protection as well as REFERRALS criminal cases. CLIENTELE All alleged offenders aged 13 -17. In addition 18-20 year-olds can ask to receive an educational measure like a young offender [no detail on the mechanism or criteria]. Alleged offenders aged 10, 11 and 12 – i.e. under the official French age of criminal responsibility can [circumstances and safeguards not known] receive ‘educational sanctions’, i.e. confiscation of items linked to the ‘infraction’, prohibitions on places and people, mandatory training, assistance or restitution requirements. There is a [presumably linked] power to hold them for up to 12 hours in police custody on the decision of a prosecutor, magistrate or judge where there is ‘serious or concordant’ evidence of a serious offence. {No more detail available} Children in need of protection aged 10-17 are dealt with by the courts but not prosecutorial diversion, and can receive educational measures including residential school placements.
INVESTIGATION There are 3 levels of court dealing with ascending ages and levels of seriousness: Children’s Courts with a Children’s Judge (also known as a youth court magistrate), a professional with 2 years’ postgraduate training, hearing the case either in a courtroom or in chambers. They deal with minor and medium-level offences (contraventions and delits) for under 18s which are suitable for ‘educational measures’. Juvenile Courts, comprising the local Children’s Judge plus 2 non-professional magistrate assessors. They consider minors , i.e. under 16s, accused of serious offences (crimes), and of medium level offences (delits) referred at the Children’s Judge’s discretion. They can impose educational measures or penalties. [Minors ‘can be incarcerated in a special prison section or in a specialised penal establishment for minors’] Juvenile Assizes, comprising 3 professional Children’s Judges and 9 jurors. They try 16 and 17 year olds for serious offences (crimes). They can impose educational measures, fines or imprisonment. Houses of Justice and Law. A minority of districts (116 by 2003) have MJDs (Maisons de Justice et Droit), a form of CJC designed to bring the judiciary closer to citizens. Judges sit there part-time and they also have facilities for victim support and mediation. Roche and Wyvekens say that the extent of mediation is limited, and 85% of cases are dealt with under rapid resolution ‘real-time justice’ (described under Gateways).
As regards procedures: Children’s Judges establish children’s social, educational and mental backgrounds and needs through social worker reports, psychiatric investigations and/or assessments by (Judicial Protectorate of Youth) educational teams (in our terms social education teams appointed to support Judges including e.g. educators, social workers and psychologists) – all reporting to set time limits (though renegotiable with judges in the individual case). There are also more rapid, largely telephone, enquiries by the supporting educational teams or sometimes a 3-month residential investigation by a Centre for Immediate Placement. Children’s Judges aim for decisions by negotiation but prosecutors and children’s advocates [defence lawyers] are normally present in court, the latter representing children’s interests in exchanges with both judges and educational teams. In the past prosecutors often stayed away from courts, but as concern about crime has heightened they have attended court more when cases do go to trial. The courts have become less paternalistic: Children’s Judges are still investigative but also focus more on taking legally appropriate decisions in the light of facts adduced by others and educational teams focus more on providing objective information testable by defence lawyers. Children’s Judges can take a range of Pre-Sentence Measures, which Bailleau describes as provisional measures but which appear in practice to be disposals (and therefore are summarised under Responses below) on the basis of the investigative reports they receive. Not clear about the human rights safeguards. Bailleau comments that formal legal rules are/were weak, and implies that the practice has ceased or diminished. No separate information on procedures in the Juvenile Courts or Juvenile Assizes. Not clear what role parents play, how often they attend court, how attendance is encouraged and whether there are sanctions for failures to appear. It appears that no role is given to victims or steps taken to establish and communicate their concerns. It appears that no role is given to community representatives in the Children’s Courts. The Juvenile Courts have 2 lay magistrate assessors and the Juvenile Assizes have a jury of nine.
RESPONSES Children’s Judges’ ‘Pre-sentence Measures’ comprise supervision in the community, fostering and reparation (60% of cases in 2006), judicial supervision (12%), social, re-education and expert inquiries (25%) and provisional detention [not clear where or subject to what safeguards] ( 3%). Sentences in 2006 totalled 75,000 : 40% reprimand//return to parents/ ‘exemption from sanction’; 12% community supervision/ judicial protection by the judges’ educational teams / fostering; 2% re-educative sanction; 5% community work, usually for the municipality; 6 % fine/ suspended fine; 17% suspended sentence, conditional or otherwise ; and 7% immediate custody (mostly in juvenile sections of adult prisons, though new juvenile establishments are being built). Roche also refers to special probation conditions [no figures] i.e. prohibitions from leaving particular places or the family home or going to certain places, or e.g. weekly reporting to a police station or compulsory medical treatment. Custodial sentences are a maximum of half the adult term for the same offence. In practice most run for 3 to 6 months, and following major investment are now served in ‘closed’ but unfenced residential educational centres or in secure centres.
GROUPS/GANGS [ No information ]
COMPREHENSION No information on prosecutors’ steps to promote understanding. They can choose to but do not necessarily see the child before deciding on diversion or prosecution. The Juvenile Court process is inquisitorial: the Children’s Judge can hold it either in the courtroom or in his/her chambers and he/she aims to negotiate solutions. No further information on steps to promote understanding. No information on relevant steps in the Juvenile Courts or Juvenile Assizes.
TIME The literature refers to prosecutorial diversion being designed in part to speed up dealing with young offenders, to judges’ educational teams having ( renegotiable ) time limits for submitting reports to courts and to children’ judges trying to deal more quickly with some cases. However no figures are given. CONTROL OVER The (Judicial Protectorate of Youth) judges’ educational teams provide direct support to Children’s SERVICES Judges - assessing children coming before the Court, liaising with specialist providers of e.g. reparation and restorative justice services [Balleau refers to ‘private providers’ charging daily or piece rates; not clear if there are other statutory providers], themselves delivering community and residential programmes, and supporting Judges with sentence supervision (see below). The breach research summarised below found that in practice there was a shortage of training/education resources (especially for longer courses which could be delayed by up to 2 years -sic ) , care services and community partner facilities for young offenders, who were often unemployed. MONITORING AND Children’s Judges are responsible for supervising the application of sanctions, supported by the judges’ REACTING educational teams who run some interventions themselves and monitor those run by other providers .The Judges have power in the light of progress to revise, revoke, supplement or terminate sentences. Bailleau says that the flow of information to and from the educational teams about compliance is very variable because of administrative complexity, lack of resources and probably reluctance to see young people re- penalised. Not clear how far the above processes apply to Juvenile Court and Juvenile Assizes sentences. Where breaches are reported considerable discretion is exercised. In Bonnemain’s 2008 study (reported by Bailleau) of 114 conditions attached to suspended sentences 45% were recorded as breached and of those 84% were allowed to continue. For conditional community work sentences the figures were 35% and 91% respectively.
CASE NUMBERS Case number breakdowns are in Gateways above, but to summarise, in 2006 114,000 cases, 65% of the AND COSTS total, were dealt with by prosecutorial diversion and 60,000, 35% of the total, were taken to court. No costs information is available
OUTCOMES Bailleau quotes analysis by Razafindranova 2007 pointing to reoffending [period not stated] ranging from 40% in ‘no sanction‘ cases through 49% for re-educative sanctions and 64% for suspended imprisonment up to 70-80% for immediate prison sentences. He does not discuss the different personal profiles of these groups of offenders; or any changes over time, No other information available. Bailleau and Wyvekens confirm there is no tradition in France of measuring outcomes or of evidence-based programme development.
RECORDS No information available
POSITIVES/ See Changes below NEGATIVES
CHANGES (As summarised under Background, Gateways and Investigation) since the mid 1980s political concern about personal responsibility for crime, protecting society and victims’ interest has led to much of the Children’s Court work being replaced by prosecutorial rapid response powers - which academic commentators feel are of questionable thoroughness, value and compliance with human rights; more disposals having a punitive or reparative but non- restorative edge; and a large investment in residential establishments for young offenders. The Children’s Courts do retain their inquisitorial approach but with clearer separation of roles and the Judges now partly investigating and partly adjudicating on information adduced by others.
CONTEXT Change has been piecemeal, and the result something of a patchwork, because of the ebb and flow of political debate since the 1980s. Wyvekens notes that this applies even within the central government, with the Ministries of Justice and of the Interior having been openly on opposite sides of the educational / criminal responsibility argument. Bailleau records major professional and academic hostility – which he clearly shares – to the dilutions of the original 1945 structures and philosophy.
REFERENCES The Processes of Juvenile Justice in France: A System under Stress. Francis Bailleau, 2009 (Translation by David Smith) The French Juvenile Justice System. Anne Wyvekens .Chapter 7 of the International Handbook of Juvenile Justice, edited by Josine Junger-Tas and Scott.H.Decker, Springer, 2007 Criminal Justice Policy in France: IIlusions of Severity. Sebastian Roche. Chapter in Crime, Punishment and Politics in Comparative Perspective ed. Michael Tonry, The University of Chicago Press, Chicago and London,2007. GERMANY – AGE FLEXIBILITY
Germany has been included for examination in the ‘tribunal’ context by reason of one feature – the ability of courts to deal with a young adult as if he or she were a juvenile. This note therefore focuses on that particular aspect of the system.
Provisions for young adults The German system for 18 -20 year-olds has 4 ingredients. First, the juvenile courts cover all ages under 21, so that 18-20 year-olds are tried in those courts along with 14-17 year-olds. Secondly, despite this the sentencing law for adults starts at age 18 so the default position for 18-20 year-olds is sentencing under adult powers. Thirdly, the courts can nevertheless sentence them like juveniles and this has progressively been done on such a scale that the exception has become the general (but far from invariable) rule. Fourthly, this is not in law a discretion – if certain conditions apply the court must sentence in this way – but there is much room for judgement on whether the conditions do apply and the figures below show just how much and how variably this is exercised. There are alternative criteria for the application of the provision, relating to the person himself/herself and to the nature of the crime respectively. Personal characteristics/circumstances. A person should be sentenced under juvenile law if at the time of the offence his or her moral and psychological development was like a juvenile’s. In detail, ‘ …(if) a global examination of the offender’s personality and of his social environment indicates that at the time of committing the crime the young adult in his moral and psychological development was like a juvenile, he should be punished according to the (Juvenile Justice Act)’. Case law amplifies this, holding that a young adult has the maturity of a juvenile if ‘elements demonstrate that a considerable development of the personality is still to be seen.’ Although the person must be judged individually, in principle many in the age group (particularly offenders) would be in this position. The crime. Juvenile law has to be applied if it appears that the motives and the circumstances of the offence are those of a typical juvenile crime. Case law gives examples of crimes committed in groups or under the influence of a group, as well as individual hooliganism and sometimes even very violent crimes arising from a specific situation e.g. alcohol abuse.
Use of the powers. Nationally. The provisions have been used increasingly over time. In 1965 38% were sentenced as juveniles, by 1990 64% and by 2003 64.5% (trend necessarily based on the West German area). Regionally. West German Lander in the 1980s ranged between 27 and 91%; in 1998 the former East German Lander ranged down to 30% and the West German up to 92%. Alongside East/West differences, northern Lander embraced the provisions more than southern ones and some low figures were clearly influenced by particular Landers’ ability to deal with adults only by a simpler, summary written file. Post-war Germany has strong constitutional discretions both for the Lander and for the judiciary, and both have been manifest in the exercise of these powers. Offence range. Nationally (West German area), in 2001 the discretion was least used for immigration and traffic offences (18 and 43%) but substantially or heavily used for all other categories – ranging up to 91% for homicide/ manslaughter, 93% for rape and 97% for robbery. Underlying institutional drivers were the adults-only time-saving powers to fine for traffic offences without an oral hearing and juveniles’ exemption from higher/more mandatory sentencing ranges for the very serious offences.
Key operational features Assessing whether the person meets the juvenile criteria is in practice subjective, based on the type of crime and how young he or she looks to the judge. It is acknowledged that proper assessment of psychological development would require time-consuming psychiatric or psychological assessment; but in practice this is not attempted. The requirement to deal also with young adults does not appear to constrain the style of juvenile court hearings in practice. The law prescribes little difference but on the initiative of their judges some juvenile courts successfully operate a distinctive approach, including for example informal round table hearings, seating on the same level and a more friendly and communicative attitude to the young people. Some courts remain traditional by choice. Where used, juveniles’ sentences are lower for the more serious crimes but broadly similar in level for the less serious ones. There are conflicting research assessments of outcomes. ‘Less crime when juveniles move into the adult system’ (Levitt) versus ‘young adults do not respond well to the harsher adult law’( Lee et al ).
References Juvenile Justice in Germany: Between Welfare and Justice, by Frieder Dunkel. Chapter 9 of the International Handbook of Juvenile Justice, ed. Josine Junger-Tas and Scott H. Decker, Springer 2006. Consultation with Frieder Dunkel Juvenile Crime and Punishment. Levitt, Journal of Political Economy 106 1156-85, 1998. Crime, Punishment and Myopia. DS Lee and J McCrory , National Bureau of Economic Research Working Paper 11491, Cambridge(Mass), 2005. MODEL GUERNSEY – CHILD YOUTH AND COMMUNITY TRIBUNAL BACKGROUND New professional Child Convenor and lay Child Youth and Community Tribunal (CYCT) system introduced 4 January 2010 Developed from but not identical to Scottish system; basic principles are that local community in best position to decide what should happen to children; those who offend almost always have same needs and background as those needing care and protection; for effectiveness needs and deeds must be tackled together; and while court must deal with disputed facts, its formal procedures mean not the most appropriate place to look in detail at how best to deal with troubled children.
CATEGORISATION Welfare tribunal which includes offending as a welfare issue Deals inter alia with majority – i.e. medium and low seriousness – cases against 10-17s, subject to any disputes of fact/appeals going to criminal court Serious cases go direct to criminal court, which can refer child found guilty to CYCT for decisions on and oversight of interventions
GATEWAYS Children’s Convenor (CC), independent public office holder appointed by a board, lawyer experienced in child law cases, initially considers children and young people in need or in trouble reported by police, health and social services or occasionally members of public. Referrals to Convenor made where compulsory measures may be needed; not intended to replace normal social services investigation of child protection concerns. CC must investigate, normally requesting reports and information from agencies involved with the child and family CC can decide on: no further action; refer to local agencies for informal, voluntary advice, guidance and assistance; or refer to CYCT if no one is able and willing to exercise parental responsibility to provide the child with adequate care, protection, guidance or control AND, on balance of probabilities, child (12 or over) has committed a criminal offence OR (for any under 18) on other grounds (violent or destructive behaviour, likely to become a danger to self or others, otherwise beyond parental control, impaired health or development, sexual or physical abuse, misused drugs alcohol or volatile substance, moral danger or failing to attend school without good reason If CC decides on CYCT hearing, CC first holds Pre-Meeting (PM) with child and family/carer to consider if all parties are aware of the referral and how far they accept the grounds for it and supporting evidence. If they do not accept, CC refers the relevant grounds/evidence for determination by Juvenile Court (see Investigation below). Legal advice available before PM for those who qualify for legal aid, to inform a child or parent/carer about their rights and advise about acceptance of the grounds for referral. Legal representation is allowed at PM itself, and legal aid ‘may’ be available for this. SIDEWAYS CC and CYCT are the main route for dealing with children who may need compulsory measures on REFERRALS welfare and offending grounds The Juvenile Court has built-in appellate-type roles plus jurisdiction to deal with serious and traffic crimes and sole jurisdiction over decisions on long-term parenting by social services, as described below)
CLIENTELE System deals with children under 18 posing significant welfare including offending issues, which implicitly could embrace serious anti-social behaviour (ASB) by individuals but not a distinct ASB category of behaviour. Criminal behaviour is covered from age 12 , Guernsey’s new age of criminal responsibility; though significant non-criminal measures including secure accommodation are available for any age if a danger to the public or in need of care and control. Children accused of serious offences can go direct to the Juvenile Court If a child is jointly charged with an adult , there is discretion to deal with him/her separately in the Juvenile Court or the CYCT instead of trying the child and adult jointly in the adult court. No figures available for new system INVESTIGATION CYCT comprises 3 mixed male and female volunteers, one designated as President, from a wide range of community backgrounds, with life experience and empathy rather than formal qualifications, who receive substantial training (including college-provided training) and are paid an allowance. CYCT hear cases referred up to the Convenor where child and family accept the grounds, and cases referred or referred back to them by the Juvenile Court once disputes on facts have been resolved Child and family attend, together with observers (e.g. social workers, teachers) if the latter have a legitimate concern with the case and the CYCT chair agrees Legal representation not allowed at this stage, on grounds that court deals with disputes of fact and panel members need to hear directly from child and parent/carer No role for victims, or wider community reps beyond the trained lay Tribunal members CYCT considers reports from social workers and, where relevant, school, medical, psychological and/or psychiatric reports CYCT aims for small, informal, private discussions with full child and parent participation, focusing on what will help the long-term welfare of the child whether or not directly related to the immediate cause of the hearing Appeals against CYCT decisions go to the Juvenile Court, within 21 days. This court also takes decisions on secure accommodation orders , community parenting orders, emergency child protection orders and residence and contact orders If at CYCT child disputes the facts they have to go to the Juvenile Court, and if found guilty return to be dealt with by the CYCT A child can be taken straight to the Juvenile Court without CYCT hearing, but after consultation between the prosecutor and Convenor, for serious offences such as murder or assault; persistent offending; and traffic offences. The Juvenile Court has criminal jurisdiction exercised by a single magistrate; lay panels have been discontinued. The Juvenile Court may also refer child to CYCT once found guilty of a serious offence if it feels that is the best way of dealing with them. In such cases there will be no criminal record. Child and parents/carers have a right to legal representation at all court hearings
RESPONSES CYCT aims for an informed and unbiased ‘best interests’ decision on whether child needs to be protected, guided or controlled CYCT can appoint a ‘Safeguarder’ (experienced social worker but independent of the social services department) to prepare a report to help it reach a decision on child’s best interests Compulsory measures are possible only if CYCT is satisfied that voluntary measures have been or are unlikely to be sufficient. If it favours compulsory measures it must first approve a plan setting out the arrangements for the child, then make a ‘Care Requirement’ for up to 12 months with supervision and conditions, designed to protect from harm and promote proper and adequate health, welfare and development, and assist parent/carer to provide adequate care, protection, guidance. If not in a position to approve a plan the CYCT can use an Interim Care Requirement for up to 28 days. ‘Wide range’ of conditions allowed, mainly for States (government) implementation (by implication mainly social workers). Generally children stay at home but with social worker supervision. They can be required to live away from home with relatives or e.g. foster carers, or in a social services residential establishment. Their contacts can be restricted, and offenders may have to undertake a Youth Justice service programme under their Care Requirement Secure accommodation, run by social services, can be used (on same welfare grounds as other disposals), but this has to be referred to the court for decision and the child and parents/carers are entitled to legal representation there. Any case requiring social services to exercise long-term parenting functions is dealt with by the Juvenile Court not the CYCT.
GROUPS/GANGS Not discussed. System’s whole focus is on individual children with significant welfare including offending problems COMPREHENSION CYCT uses an informal round-table layout No legal representation allowed, not only because CYCT does not deal with disputes of fact but also because panel needs to discuss direct with the child and parents
TIME No information.
CONTROL OVER Social workers are mainly responsible for reports and – through statutory obligations on the States SERVICES (government) – for delivery or oversight of CYCT-imposed Care Requirements However, reports can be required from the educational, psychological and medico-psychiatric profession (it is not clear how far they are bound in to delivery)
MONITORING AND CC has a duty to arrange a CYCT Review Hearing of a Care Requirement within its 12-month term, REACTING failing which it will lapse CYCT can specify an early date, social services can request one at any time and child and parent/carer can after 3 months At a Review Hearing, attended by the child and their parent/carer, the Care Requirement can be continued, changed or discharged (specific grounds or triggers are not discussed). Care Requirement cannot run beyond the 18th birthday CASE NUMBERS System is very new (4 January 2010), no figures or estimates are available AND COSTS OUTCOMES No information
RECORDS No information POSITIVES/ Not applicable at this stage NEGATIVES CHANGES Not applicable
CONTEXT Channel Islands youth justice arrangements have been in the past roundly criticised by the ECHR, and there have also been well reported allegations of child care home mismanagement and abuse. New system’s child welfare emphasis is clearly a very deliberate ‘fresh start’ The particular Scottish-style model chosen reflects Guernsey’s view that it is well suited to small and scattered communities
REFERENCES References: www.cyct.org.gg The Short Guide: Children Law Guernsey and Alderney, issued January 2009 by Jacqui Gallienne, Director Services for Children and Young People., Hard copy , no ISBN no . MODEL MENTAL HEALTH TRIBUNAL - ENGLAND
BACKGROUND A new framework for tribunals was established under the Tribunals, Court and Enforcement Act 2007 whereby the jurisdiction of existing tribunals was transferred to the First-Tier Tribunal and the Upper-Tier Tribunal. Within this structure, five ‘chambers’ have been created, each of which is responsible for one area of work. The Health, Education and Social Care Chamber will have jurisdiction over what was previously the Mental Health Review Tribunal. The new system was operational from November 2008 and extends to England only; Scotland and Wales have separate structures. Procedures will follow The First Tier Tribunal (Health, Education and Social Care Chamber) Rules 2008 (“the Rules”) and will be supplemented by practice directions. The Mental Health Act Code of Practice also lays out principles which the tribunal should follow: (1) Purpose Principle: decisions should be made to minimise undesirable effects of mental disorder. (2) Least Restrictive Principle: decisions should impose the least restrictions possible. (3) Respect Principle: needs and values of the patient should be recognised and respected (this includes age which is especially interesting in terms of children and young people). Wishes and views should be taken into consideration where possible. (4) Participation Principle: the planning of care and treatment should involve participation of the patient and also family members and carers. (5) Effectiveness, Efficiency and Equity Principle: should be followed in the provision of services.
CATEGORISATION The tribunal is comprised of a three member panel; one who is medically qualified (usually a consultant psychiatrist); a legally qualified member who acts as the President and a lay member. The tribunal considers the cases of patients in civil detention under the Mental Health Act 1983, those under Guardianship and those detained by the court as part of a criminal sanction. The panel’s role is to assess whether the conditions for detention continue to exist and discharge where the statutory requirements are not met. GATEWAYS Patients detained under the Mental Health Act 1983 (“MHA”), subject to Guardianship or under Supervised Community Treatment may apply to the tribunal for discharge. Such applications may be made by the patients themselves or their next relative. Hospital managers also have a statutory duty under s. 68 MHA to refer cases to the tribunal if three years have elapsed since the last consideration by a tribunal. This period is one year for children and young people under the age of 18. Offenders subject to a hospital order (s. 37) or restriction order (s. 41) may apply to the tribunal for discharge. However, restricted patients who have been transferred from prison can only obtain a recommendation from the tribunal: the ultimate decision lies with the Secretary of State for Justice.
SIDEWAYS The Secretary of State may refer the case of any patient detained or subject to guardianship by virtue of s. 67(1) MHA. In addition a referral may be made in the case of a restricted patient under s. 71(1) MHA. REFERRALS
CLIENTELE The tribunal system deals with detained patients irrespective of age as the MHA has no lower age limit. Criteria for detention for assessment are laid out in s. 2 MHA whereby these grounds must be met: (a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. Detention under s. 2 can be for a maximum of 28 days. The patient has the right to challenge the detention at a tribunal but must do so within 14 days. Criteria for detention for treatment are laid out in s. 3 MHA and are more rigorous: (a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section. Detention under this section is for a period of 6 months which may be renewed for a further period of 6 months and then yearly. Challenge to this can occur once in a 6 month period. It must be noted that this does not mean one hearing as often multiple hearings are required for one challenge. Although the MHA does not provide any specific protections for children and young people, the Code of Practice addresses this point. It provides that where decisions are taken under the MHA the following --- needs to be considered: (i) the best interests of the child or young person; (ii) they should be kept fully informed in a way that is sensitive to their age and understanding; (iii) their views, wishes and feelings should always be taken into account; (iv) any intervention should be the least restrictive and cause the least separation from family in so far as is possible to secure their wellbeing; (v) they should receive the same respect and dignity as an adult in their situation; (vi) children and young people should expect privacy and confidentiality. Where detention is not required for treatment, consideration should be had of s. 25 Children Act 1989 which provides for secure accommodation. This is dealt with by the family courts. Under s. 31 of the Mental Health Act 2007 new measures relating to age-appropriate accommodation will be introduced. However, these are not expected to be in force until April 2010. This section places a duty upon hospital managers to ensure that patients under the age of 18 are housed in an environment appropriate for their age and needs, including specially trained staff and access to educational facilities. Furthermore, it amends s. 39 MHA allowing for the provision of information on specialist accommodation to the courts in relation to children and young people under the age of 18. This is to ensure the most appropriate course of action is taken.
INVESTIGATION First and foremost, it is important to note that the tribunal cannot dispose of matters without a hearing under s. 35 of the Rules. The hearing itself is less formal than a court and often takes place in the hospital where a patient is being detained. It will be held in private unless it is considered to be in the public interest to hold the hearing in public (r. 38 Rules) and all information regarding the case will be confidential under r. 14(7) of the Rules. An examination of the patient by the medical member will be held prior to the hearing to assess the patient on the day. This will then be communicated to the other members of the panel. The tribunal will have had sight of an up-to-date clinician’s report, a social circumstances report and an in-patient nursing report. The authors of these reports or another professional with sufficient knowledge of the case should be present to give oral evidence. The patient and their legal representation will be present at all times and may cross examine on the evidence given. They will have had notice of the reports prior to hearing and may instruct an independent doctor to attend and give evidence also. Victims of criminal offences where the offender is subsequently detained under the MHA can apply to be kept informed of future tribunal hearing dates. This is a statutory right provided under the Domestic Violence, Crime and Victims Act 2004. Victims may make written representations and in exceptional cases request to give evidence at the hearing. Representations are restricted in so far as they are relevant to the discharge conditions. The tribunal panel is encouraged to provide its decision straight away. If it does not then it must be provided in writing and with reasons within 7 days (or 3 days for a s. 2 hearing) under r. 41(3) of the Rules. The appeal structures are detailed below.
RESPONSES Powers of the tribunal are dealt with under s. 72 MHA and include: (i) Discharge from detention; (ii) Discharge from detention on a later date; (iii) Recommendation to transfer into guardianship; (iv) Discharge from guardianship. Where the tribunal makes recommendations and those are not complied with, the tribunal may recall the parties to a hearing for further consideration of the case. Appeal from the First-Tier Tribunal is to the Upper Tribunal, which replaces judicial review. The rules governing such appeals are laid out in the Tribunal Procedure (Upper Tribunal) Rules 2008. Permission is required to appeal and in requesting this, a judge of the tribunal will review the decision. The judge may allow the appeal without need to proceed to the upper tribunal, allow the appeal to continue or refuse leave. In such a situation permission is then applied for from a judge of the upper tribunal. Appeal can be sought by the patient or their nearest relative. Likewise the Secretary of State or the responsible authority may also seek to appeal a decision. A further right of appeal then exists to the Court of Appeal, with leave required.
GROUPS/GANGS No information available. COMPREHENSION The role of Independent Mental Health Advocate (“IMHA”) was established under the Mental Health Act 2007. Statutory access to an IMHA available from April 2009 for all persons detained under the MHA, those under guardianship, conditionally discharged restricted patients and supervised community treatment. The function of the IMHA is to inform patients of their rights and the treatment. He/she is also to provide a supporting role ensuring that patients effectively participate in decisions regarding their care and treatment. Staff are under a duty to inform patients about the IMHA service. Referrals can be made by the patient, nearest relative, responsible clinicians or approved mental health professionals. Non-means-tested legal aid is available for representation at tribunals. In the situation where a patient is unable to instruct a solicitor the tribunal may appoint one on his/her behalf under s. 11(7) MHA where it would be in his/her best interests.
TIME Timescales for procedures and hearings under the Mental Health Tribunal are heavily prescribed in order that the patient’s ECHR rights are not breached. R. 37(2) of the Rules requires that hearings under s. 66(1)(a) MHA must be heard within 7 days of application. Similarly, hearings under s. 75(1) MHA should be heard within 5- 8 weeks of application. The case of R v. MHRT London South held that a period of 8 weeks until hearing by tribunal was too long and a violation of the patient’s rights under Article 5(4) ECHR. Cases must be heard as soon as is reasonably practicable and not routinely delayed. This is also reflected in the overriding principles of the Rules, under r. 2(2)(e) which identifies the avoidance of delay as a key element in dealing with the matter fairly and justly.
CONTROL OVER Hearings before a tribunal require the attendance of parties involved in the care of the patient. This includes the patient’s doctor and social worker. They are required to prepare reports in advance and give SERVICES oral evidence at the hearing. The medical member of the panel will also examine the patient prior to hearing in order to assess his mental state. This evidence is also provided to the panel in order that they come to an informed decision. MONITORING AND The delivery of the service of the tribunal is heavily prescribed by statute. As such errors in law can provide the basis of grounds for appeal. As identified above appeals can be taken to the Upper Tribunal REACTING and from there the Court of Appeal. The Care Quality Commission replaces the Mental Health Act Commission and is the independent regulator for health and social care in England.
CASE NUMBERS The new framework has only been operational since 2008 and so limited figures are available. In 2008/09 the tribunal dealt with 23, 000 receipts and disposed of 25, 400 cases*. AND COSTS This is an increase on figures from 2007/08 which were 21, 900 and 19, 500*. No figures for the costs of this element of the Tribunals Service are available. *discrepancies over figures between CQC, Tribunals Service and NHS; these are from the Tribunals Service.
OUTCOMES 91% of s. 2 cases listed for hearing within 7 days of receipt. In relation to children in the mental health system some interesting statistics: Children admitted to adult wards during the period 03/10/08 – 28/02/09 = 80. Of these 84% admitted by a responsible clinician who was not a child specialist. Of these 9% had access to child- centred advocacy.
RECORDS Some key problems noted with the implementation of the new system have been delays, increasing POSITIVES/ numbers of adjournments and the unavailability of reports. These may be due to the infancy of the system rather than procedural deficiencies. NEGATIVES Further research is required once system has been properly established and settled in.
CHANGES Changes in relation to age-appropriate accommodation for under-18s expected in April 2010. This is detailed above in ‘Clientele’.
CONTEXT REFERENCES Legislation: Children Act 1989 Domestic Violence, Crime and Victims Act 2004 Mental Capacity Act 2005 Mental Health Act 1983 Mental Health Act 2007 Tribunals, Court and Enforcement Act 2007 Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 Tribunal Procedure (Upper Tribunal) Rules 2008
Department of Health, Code of Practice: Mental Health Act 1983 (2008) London: The Stationary Office http://www.dh.gov.uk/dr_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_087073.pdf
Mental Health Act Commission, Coercion and Consent, Monitoring the Mental Health Act 2007- 2009 (2009) London: TSO http://www.cqc.org.uk/_db/_documents/MHAC_Biennial_Report_0709_final.pdf
R v. MHRT London South, ex parte C (2001) Lloyds Rep Med 340
Tribunals Service, Annual Report and Accounts 2008/09 (2009) London: The Stationary Office http://www.tribunals.gov.uk/Tribunals/Documents/Publications/239_016_TS_AR_2009_Web_Version.pdf MODEL NEW ZEALAND FAMILY GROUP CONFERENCING
BACKGROUND The current system, based on the Children Young Persons and Families Act 1989, was ‘rebalanced’ from the preceding liberal interlude to take more account of political and public pressure to increase personal accountability, more effectively to tackle high and persistent offending rates and to structure diversion. It incorporated elements of Maori and Pacific Islander family, clan and tribe child upbringing approaches into distinctive, extensive Family Group Conferencing arrangements. Key principles include: strengthen child/family relationships, use family skills, obtain the child’s support, divert and use community interventions as far as possible, sanctions to promote juvenile development and due regard/amends to victims. More recently, 2002 legislation has applied FGC on a modest scale to the adult system, which covers age 17 plus.
CATEGORISATION A Family Group Conference-based system focusing on both responsibilities and needs and providing for victims; linked to but largely supplanting traditional courts; and with structured police diversion dealing with many lower-level offenders. GATEWAYS 10-13 year olds are above the age of criminal responsibility but not prosecuted. They are dealt with on a welfare basis alongside those in need of care and protection – through police warnings, police diversions or Family Group Conferences similarly to age 14 plus as described below. A minority needing formal care/protection go to the Family Court. For 14-16 year olds: The police can deal on the spot with minor offending through informal verbal warnings. Offending requiring more than informal action is referred to the specialist police ‘Youth Aid’ division. They have 4 options: Formal Warning – written, or oral in the parents’ presence, for minor offending. [44% of Youth Aid referrals. The young person is released and exits the system [presumably with nothing on their record]. Formal Diversion, aka ‘Alternative Action’. 32 %. If the police Youth Aid section consider a Formal Warning insufficient [and the child admits guilt ] they can administer one or more of an apology to the victim (65% in 2002), community work (33%), reparation (21%), attend a programme (19%), curfew/restriction (11%), donation to charity (4%) or eg write letters, good behaviour contracts (15%), The aims are to satisfy victims, prevent reoffending and reintegrate. Pre-Charge Family Group Conference (FGC). 8% of Youth Aid referrals; about half of all FGCs are pre- charge. If the Youth Aid section consider the case ought to be the subject of a charge they consult YJ Coordinators (social work background, employed by the Dept of Child, Youth and Family Services/CYFS) and victims. Coordinators can authorise a summons and convene a Pre-Charge FGC. (Arrest is limited to prevention of further offending, absconding or interference with evidence or witnesses) Attendance at and conduct of these FGCs are described under Investigation below, i.e. as for post-court FCGs. If the members of the FGC including the police officer all agree the matter is handled entirely by the FGC and will not go to court. The meeting aims for consensus on a Plan, aka diversionary programme (for content see Responses below) If this is satisfactorily carried out the matter is normally closed and the child exits the system. [Not clear if any record ] An FGC can instead decide that a formal charge must be laid, taking account of the offence and offending history. It can also decide on a charge if a Plan is drawn up but not carried out [not clear if FGCs normally reconvene to review outcomes]. Charge, with no prior FGC if the case is serious enough – which requires prior consultation with the YJ Coordinators – or if a Pre-Court FGC Plan is not in practice carried out. 16% of Youth Aid Referrals.
SIDEWAYS [Not clear whether an age 14 plus child can be formally referred to a different system]. REFERRALS CLIENTELE The age of criminal responsibilty starts at 10, though as noted under 14s suspected of crimes are dealt with as Care and Protection cases. The youth justice system in practice covers 14-16 year olds accused of the full range of offences. Maori and Pacific Islanders account for one fifth of the age group but nearly half of the youth justice system’s clientele). This over-representation long predates the introduction of the current system.
INVESTIGATION Courts. As explained a charge is laid if the offence is serious or a Pre-charge FGC was held but the resultant Plan was not carried out. Charged children aged 14-16 normally go the Youth Court. It is a division of the general-purpose District Court and the judges are trained self-nominees who combine youth specialism with wider work. Really serious offences ("purely indictable") are [from what age] dealt with in the adult District Court unless a Youth Court judge decides they can try the child. Repeat offenders are the most likely to go to the District Court. Clear separation is kept between resolving disputed facts and disposing of admitted/proven offences. Hearings on facts include a Youth Advocate/defence lawyer (funded by legal aid and selected for interest and aptitude), with traditional rules on onus/standard of proof and admissibility of evidence and [from age …] right to jury trial by for indictable offences. ‘Post–Court’ FGC. If the child does not deny the charge (they do not deny in 98% of cases- sic) it is referred without a court hearing to what is nevertheless called a Post-Court FGC, aka Court-Ordered FGC. Only homicide and minor, fineable-only e.g. traffic offences are excluded. Attendance. The FGC is made up of the young person, a youth advocate if appointed by the child or court [unclear re criteria], nuclear family members, often extended family members and representatives, the victim/representative and supporters, police, YJ Coordinator and a CYFS social worker if currently responsible for custody, guardianship or supervision. Conduct of meeting. Each FGC decides its own process but it generally involves introductions and as appropriate karakia/prayer; YJ Coordinator explanation of general procedure; police summary of facts of the offence; any offender comment on its accuracy (if differences cannot be resolved the matter goes to the youth court for resolution); admission of responsibility; victim/representative present their view and ask questions of the child; discuss possible causes of offending; discuss possible conference outcomes; offender's family discuss options ( this can be in private and they can request an adjournment); general FGC negotiation and formulation of plan/response/outcome; agreement by participants; recording the agreed plan; and closure. Victims’ role is seen as important. Official NZ experience suggests that their contribution can avoid the child denying or neutralising the harmfulness of the offending and prompt reflection by the child and family discussion of possible action. Surveys suggest many victims find taking part cathartic and helpful in healing. They (not any supporters they bring) can agree or disagree with the FGC-suggested outcome, including e.g. doubting whether it would be adequately carried out or arguing that it is too lenient or harsh. If they prefer not to attend their views are often contributed through representatives or letters. But see Positives/Negatives re alternative perception of victims’ involvement. Professionals play a low-key role. The Y J Coordinator is solely a facilitator, ensuring that the process is managed constructively. The police role is usually limited to describing the offence, and possibly the impact on the victim if unrepresented; though they can voice concerns if family proposals seem inadequate or excessive. A youth advocate, if present, advises on legal issues and protects the young person's rights but can also comment if the proposed plan seems excessive. Any social worker present normally only provides background information on the young person and supports the plans of the family and the young person for the future. The proposed Plan is put to the Youth Court. See Responses below. Post-conviction FGC. If the child denies the charge the court holds a Defended Hearing, conducted adversarially in the same manner as for adults. If the charge is proved (the language of guilt/innocence is avoided) an FGC is convened to recommend sentencing options to the court - see Responses below. Confidentiality. Information arising from FGCs is privileged and not published. Some information is also withheld from courts: the detailed reasons if the FGC could not reach consensus.
RESPONSES The FGC’s proposed Plan is put to the Youth Court. The overarching recommendations to the court can take the form of the proceedings continuing or discontinuing, a formal police caution, a declaration that the young person is in need of care and protection, reparation to the victim or (unusually) appropriate court penalties. FGC Plans have no menu because the process emphasises creativity and negotiation, subject to overall aims of preventing further offending and allowing the young person to develop in a socially beneficial way without further offending. Nevertheless typical elements are apologies, reparation (money or work for victim), community work, programme participation, counselling on drugs, alcohol or anger management and/or a voluntary curfew or undertaking to attend school or not to associate with co-offenders. The Court decides if the Plan is a sufficient sanction – 95% of Plans are accepted. The case is then adjourned pending completion of the Plan. On satisfactory completion the child may be discharged; failing that they can receive a court order Court orders (the term ‘sentences ‘ is avoided) are made in the less than 2% of cases where charges were denied but have been proved in court, or (see above) a few FGC cases where the FGC recommends or court decides a sanction is necessary. A wide range is available – most are familiar to us but worthy of note are an Order simply to come up for further action if called on (actually a power of recall if there is further offending within 12 months); no Youth Court power to impose custody as such but instead up to 3 months in a secure welfare institution followed by 6 months supervision; plus for serious cases a power to transfer [unclear what age] to the adult District Court for sentence under adult powers including up to 5 years imprisonment.
GROUPS/GANGS [ Not discussed ]
COMPREHENSION Attendance by all is voluntary, members can bring supporters and the YJ Coordinator facilitators try to make everyone feel part of not observers at the proceedings.
Within this the child is central.They are encouraged to discuss the offence and accept responsibility for it, discuss its possible causes, take part in formulating a plan, present it to other participants, offer apologies to the victim; answer any questions they put; and where relevant, present the Plan to the Judge when the matter returns to the Youth Court. TIME Recognising many young people’s short time horizons, an FGC must be arranged within 21 days of ‘intention to charge’ and completed within one month. If the child is in custody the time allowance is 7 days plus 7 days.
CONTROL OVER The children’s FGC process is funded by the State in the same way as the courts, which means that ‘all SERVICES professionals involved are trained and supported’. FGC operations are supported by social work not youth justice staff, the latter leading on police diversions requiring interventions. FGC plans must be agreed to by all participants and all persons directly involved in their implementation. Where there is agreement, the plan ‘will almost always be accepted by the enforcement agency ….That is unless clearly impracticable ….’. McElrea points out that underfunding of YJ staff - plus an increase in the violent crimes share to 10% of child offences - has resulted in Pre Court FGCs dropping from 75% of all FGCs to (an admittedly still respectable) 50%.
MONITORING AND [Who/ how monitors progress against Pre-Court FGCs. Does the FGC reconvene, e.g. if the Plan is not REACTING carried out? In such a case does it do anything other than refer the child straight to court?] A Post–Court FGC Plan is supervised by a nominated person – they can be anybody suitable, including a family member – with the court usually adjourning proceeding for 3-4 months to allow the plan to be implemented. [ Not clear whether court reconvenes or just receives written report ] If the Plan is carried out as agreed the proceedings are usually withdrawn; if the plan breaks down the court can impose its own sanctions. [Not clear if alternatively an FGC could be reconvened at that point]
CASE NUMBERS Police warnings are not counted. Police Formal Warnings and Formal Diversions account for 76% of AND COSTS cases, i.e. 22k p.a. Family Group Conferences total 7k a year – with the ‘Post-Court’ share having increased from 25% to 50%. McElrea points out that the number of court prosecutions against young people dropped from 8193 cases in 1989 to 2352 in 1990 (a 71% reduction) and slowly rose to 3908 in 1996, but by 2001 was still less than half the 1989 number. [No cost figures] OUTCOMES McElrea points out that police apprehensions of young offenders aged 10 and under 17 increased by only 5.3% between 1996 to 2003, a period when the total population of that age rose by 14%. So far as it can be measured, custody appears to have fallen significantly. Corrective Training (three months detention) and District Court and High Court imprisonment fell from 255 sentences in 1989 to 108 in 1993 and 138 in 1996. Supervision in secure welfare institutions apparently fell but the figures are not readily separable from ‘care and protection’ cases. . RECORDS [No discussion of whether FGCs lead to criminal records; and how long [those and] court criminal records are kept. POSITIVES/ McElrea points to the near automaticity of holding FGCs, even post-conviction, after the child has denied NEGATIVES the offence. This suggests some may really be involuntary, but against that McElrea notes the high overall share (75%) of cases dealt with by police diversion, the very high non-denial rates where charges are laid and that some good conferences occur even after denial (albeit that victims can be reluctant to participate unless clear that the child does by then accept responsibility). Bradley et al question how restorative the FGCs are and how far they meet minority community expectations. Specifically: In a main sample researched by Maxwell only 48% of victims or victim representatives attended FGCs – normally because of reluctance to meet the offender. Also, despite the paticipative theory only half of victim attenders felt fully involved in decision-making. McElrea concurs, observing that the FGCs are in practice more ‘sentencing’ than restorative-oriented. Despite the claimed benefits for minorities, 54% of FGCs were hosted in social services’ premises; they, the police, YJ Coordinators and advocates tended to dominate; the process emphasised individuals rather than family collectives and punishment over restoring self-worth and community harmony; and little heed was paid to the minorities’ own conflict resolution practice (which helped to inspire but is not part of the youth justice system).
CHANGES Of some interest is the Sentencing Act 2002’s adoption of restorative conferencing within adult sentencing. Briefly: • The offender must admit responsibility for the offence (the legislation does not require a formal guilty plea but the judges insist, as a safeguard), and both offender and victim must agree to a conference • The court adjourns sentencing for up to 6 weeks to allow for the conference and PSR preparation • In sentencing the court must take into account the outcome of the conference including any amends/ reparation • The court can (if the offender agrees) adjourn further until the conference outcome is carried out; then discharge or similar Or conference outcomes can be included within sentences, e.g of release from imprisonment of up to 2 years, or of parole However the system is less resourced hence less used than for children, McElrea argues CJCs are needed.
CONTEXT The FGC system has enjoyed cross-party support but there are some pressures to toughen up from politicians, citizen-based and victim concern lobby groups, based on perceptions that youth crime is out of control and the youth justice system failing. In fact youth crime is a constant 22% of total crime and (for example) between 1995 and 2003 the youth population increased 14% but youth apprehensions 5%.
REFERENCES Demythologising Youth Justice in Aotearoa/New Zealand. Trevor Bradley, Juan Tauri and Reece Walters, forming Chapter 6 of Comparative Youth Justice; Critical Issues, Edited by John Muncie and Barry Goldson, Sage Publications, 2006. The New Zealand Experience of Restorative Justice Legislation. FWM McElrea. Paper presented at the 11th Annual Restorative Justice Conference Fresno Pacific University, California. 23-24 September 2005 and at the 5th Annual Conference of the Association for Conflict Resolution Minneapolis, Minnesota 30 September 2005. Penal Systems: A Comparative Approach. Michael Cavadino and James Dignan. (New Zealand Associate Author was John Pratt of Victoria University of Wellington). SAGE Publications, 2007. Practical information about family group conferences for young people and their families. Kirsten JS Ferguson (BA(Hons), LL.B(Hons)), Chief District Court Judge's Research Counsel and Principal Youth Court Judge Andrew Becroft. New Zealand Government website, youth justice section. MODEL NORTHERN IRELAND YOUTH CONFERENCING
The Belfast Agreement 1998 provided for a full scale review of the criminal justice system of Northern BACKGROUND Ireland. Reporting in 2000, it recommended the development of a restorative justice approach for juvenile offenders in the form of a fully integrated youth conference model. This led to the Justice (NI) Act 2002 and the new system starting in December 2003. . The Youth Justice Agency (YJA) was established as an executive agency of the Northern Ireland Office. Its principal aim is to reduce youth crime and to build confidence in the youth justice system. It delivers a range of services, one being the Youth Conference Service (YCS). It was inspired by, but is not identical to, the New Zealand Family Group Conference system.
Northern Ireland youth conferencing is a restorative justice mechanism at the heart of the youth justice CATEGORISATION system. Conferences centre on young offenders and their victims with the overall aim of preventing reoffending. Conferences can be diversionary – as an alternative to prosecution – or under a court sentence.
The police do not decide on diversion (though they do deliver it – see below). This is in order to meet GATEWAYS concerns that they could make such decisions on a discriminatory basis e.g. between religions and social classes, which are sensitive issues in Northern Ireland. If the police consider a case warrants action they report it to the Public Prosecution Service (PPS), who have a choice between no action (e.g. through insufficient evidence/not in the public interest), a police warning; a police restorative caution; a Diversionary Youth Conference; or (in a serious case) prosecution. Diversionary Youth Conferences (DYCs) are discretionary for the PPS, but the case must be prosecutable and the child must have made an admission of guilt and agree to a conference. The conference process itself is the same as for a court-ordered one – see Responses below. The resulting plan goes to the PPS to approve – in which case it becomes a Statutory Order and provided it is satisfactorily carried out there is no prosecution – or to reject (none were in 2009). The PPS cannot amend a Plan but can invite reconsideration/ resubmission. Court-ordered Youth Conferences. If a child is convicted by a court – whether prosecuted direct or following failure of a DYC, and whether or not he/she pleaded guilty to the offence as charged, referral under a Youth Conference Order is near-mandatory provided the child agrees to a conference and is by then ready to admit responsibility (e.g. following further consultation with his/her lawyer). There are limited exceptions : (1) the offence attracts a mandatory life sentence, i.e. murder ; (2) the offence is triable only on indictment, e.g. manslaughter, rape, riotous assembly, hijacking.; (3) the offence is Scheduled under Part 7 of the Terrorism Act 2000. (4) The case is discharged and/or referred back to the PPS to consider for a DYC or other alternatives to prosecution. In respect of (2) and (3) the court has discretion rather than an obligation to make a Youth Conference Order. There are no mechanisms for sideways referral. However a CJS inter-agency working group has been SIDEWAYS established to consider the possibility of screening out young people with significant learning and communication difficulties. [Not clear what solution is in prospect] REFERRALS
The Youth Conferences cover all 10 to 17 year olds who meet the eligibility criteria in Gateways above. CLIENTELE In effect this means a wide range of medium-to-serious offenders – excluding the very violent but including repeat offenders.
The Youth Conference is essentially a meeting, or if necessary a series of meetings, facilitated by a INVESTIGATION professional coordinator who is employed by the YJA and trained to diploma level at the University of Ulster. Most were previously youth workers, social workers or teachers. The conference considers how the offence came about, how the child can address the harm caused to the victim and sometimes his/her community and/or family and what action the child can take to avoid or prevent further offending. Required to attend are the co-ordinator, the child, parent/appropriate adult and police youth diversion officer. Invited to attend are the victim/his or her representative, the child’s legal representative (not as advocate but to advise on proportionality; at most 20% attend), any current supervising officer; and any other professional or private individual the coordinator believes can usefully contribute. The victim, child and/or parents may bring a supporter Preparation takes on average 10 hours. The coordinator separately meets the child, parent(s), victim and possibly a community worker/representative to explain the process and establish what contributions they could make. Victims are carefully cultivated: letter, then phone call, then home visit with DVD showing, then meeting preparation home visit. At the meeting the child is asked to explain the crime and the reasons; the police youth diversion officer adds to this as necessary and explains its general impact. The victim outlines how it affected him/her and can ask the child questions. The parents explain their reactions. The child is asked how he/she responds and at this point both he/she and the victim will often start to treat each other more as individuals with their own families, lives, strengths and vulnerabilities. It can get emotional (‘reintegrative shaming’). From this point the coordinator teases out how things can move forward: what the victim would realistically like, what the child can offer to do for him/her and also what he/she can do or sign up to prevent further offending The Plan. The aim is to draw up a Conference Plan of specific, timed actions – agreed to by the child, the victim and any agency which would have to deliver something. 93% of conferences lead to a Plan. The typical ingredients are under Responses below. The plan has to be submitted to the PPS or Court for approval. The PPS can accept or reject (or invite resubmission). A court can accept, reject or vary (in 2009 courts varied 29). Its overall options are: approve a Plan; pass a community sentence (not combinable with a Plan); or impose custody or custody coupled with a Plan including post-release actions (2 in 2009). Changes to Plans are either up or down, to improve proportionality. The Courts. Cases go the Youth Court, comprising a District Judge and two magistrates – any two of whom can outvote the other – or if very serious to the Crown Court. The Youth Courts operate conventionally, except that the District Judges are finding themselves moving to a more inquisitorial approach as they deal with the outcomes of Youth Conference Orders.
RESPONSES Youth Conference Orders, and similarly Plans arising from Diversionary Youth Conferences, last for up to 12 months (see below re reparation). The 2002 Act outlines what they may include: apology; reparation (this can now run beyond 12 months); payment to the victim not to exceed cost of replacement/repair; adult supervision (in practice by the YJA or other agency); unpaid work or community service, if aged 16+, for up to 240 hours; participation in activities; (e.g. education or training); restrictions on conduct or whereabouts; electronic monitoring; treatment for mental health issues or drug/alcohol dependency. Normally a Plan will have 2 or 3 of these. Each action will have its own set timetable which the child and any relevant delivery agency must meet. This is both to maximise the prospects of a successful outcome and to bring home to the child that adults do not always let him/her down.
GROUPS/GANGS No specific information. COMPREHENSION The young person must consent to participation in the conference. An appropriate adult must also attend with him/her. He/she will have an opportunity to meet with the coordinator in advance in order to prepare. The process is structured by the coordinator but in an ordinary room with circular seating on the same level, and is direct and conversational in style. People talk directly with the child and prompt him/her in a helpful way as necessary. His/her views are listened to and indeed critical to the process. Legal aid is available for preparation and conferences. However if lawyers attend – most do not - they do not speak for the child, and restrict themselves to commenting on the proportionality and suitability of the emerging Plan proposals. The coordinator can exclude anyone who seeks to exert an unacceptable influence over the young person, is liable to pose a threat to the safety and wellbeing of any of the participants or behaves in a violent, threatening or disruptive manner. The child can at any stage withdraw his/her consent to conference participation or his/her admission of guilt. The conference would end and the matter be returned to the PPS or court.. Neither the fact that a conference has been convened or anything said or done in the context of the conference is admissible in any criminal proceedings as evidence of guilt Children who suffer from learning difficulties or who have mental health issues are supported fully during the process. Most are already receiving support from relevant agencies. Typically added preparation time is allowed, the Conference itself is slowed down and relevant professionals attend. Children with language difficulties or who do not speak English are supported by interpreters at preparation meetings and Conferences. By statute the YJA have 30 days from referral to report back the outcome of a Diversionary YC and 21 TIME days to report back to a court. These targets are usually met; sometimes an adjournment is requested. The actual average times are 24 days for diversionary conferences and 19 for court-ordered conferences. The average length of time from offence to referral is 120 days; 115 days for diversionary conferences and 124 days for court-ordered conferences. However we understand these high figures are not caused by the conferencing process itself. . CONTROL OVER The YJA itself supervises most children during their Conference Plans. Some e.g. in social services care SERVICES will continue to be supervised by them; tensions can arise over meeting of timetables. This monitoring function entails referral back to the PPS or Court in the result of non-compliance. Community reparation is often negotiated with community organisations, youth workers or Business in the Community. The joint aim is to find actions which relate in some way to the crime, but this is challenging to achieve. MONITORING AND The coordinator is responsible for monitoring and encouraging the child to meet his/her Plan targets, but REACTING. the task is usually delegated to Community Services staff within the Agency. The coordinator reports the outcome to the PPS or court, and in the case of a court-ordered YCO the child goes back to the court for its consideration of the outcome and final decision. 93% of Plans are completed successfully. Where there is non-compliance along the way the coordinator will give the child the opportunity to address any issues and where necessary may convene another Conference. If by due completion date the Plan is largely but not wholly finished the PPS/ court may choose to give an extension of time or discharge the matter. However clear breach of the plan is likely to result in the PPS prosecuting the child or the court imposing an alternative sentence for the breach or for the original offence.
To date there have been nearly 8,000 Conference referrals. Now, 40% of referrals are by the PPS CASE NUMBERS against an original expectation of two-thirds. In the Youth Court they account for 52% of disposals, c.f. AND COSTS 5.% for other community orders (2008-09). Based on Belfast, 1/3 of N. Ireland’s caseload, the police reported 2792 cases to the PPS. Of these 27% resulted in no action, 21% in a warning, 13% in restorative cautions, 11% in Diversionary Youth Conferences and 28% in prosecution. The direct costs of the scheme are approx £2.8 million a year. A Conference costs £1200; 12 months supervision (used in nearly half of cases) £1500; programmes typically £250. The average Conference plus Plan cost is therefore £1950. Court costs have not been measured, but each court-ordered Conference requires an appearance before and after and the District Judges we spoke to could not detect any drop in workload. The Agency point to a significant reduction in custody from 10% to 7% of sentences (see outcomes) and point to England and Wales (Shapland report) calculation that each £1 spent on the Conferencing scheme would save £8. Re-offending rates following Conferences were 38% for the 2006 cohort: 28% for Diversionary and 47% for court-ordered, compared to 52% following community-based orders and 71% following custody (2006 OUTCOMES cohort, most recently available). The Agency measure reoffending for serious offences as only 22%. As said, repeat offenders go through Conferences. The Agency say the greatest difficulty is for the children themselves, who are more used to conventional disposals. Their reoffending rates ascend predictably – no precons 16%, 1 to 4 41%, 5 to 8 59%, 9 or more 72%. 11% of children have 5 or more conferences and 1% have 10 or more. The Priority Youth Offenders Project (see Changes below) provides closer supervision as from April 2009. The percentage of young offenders in custody has fallen from 10% in 2004 to 7% in 2006. (Campbell and Wilson, 2008) In 2009 the sentenced population in custody averaged 23 (sic). Queen’s University researchers found 81% of children showed shame during conference with victims present. The Agency report that 74% of victims attend in person, 79% including victim representatives. These relatively high rates result from the pre-conference work by coordinators. Although results are better with victims present in person (•6% lower reoffending) conferences are held without direct victims and achieve results by identifying the impact on the children’s communities and families. Victim satisfaction with the conferences was 89% in 2008/9. (YJA, 2009)
PPS-ordered police warnings and restorative cautions citable in criminal proceedings but not criminal RECORDS records., A Diversionary Youth Conference will go on the child’s criminal record for 30 months. A Youth Conference Order confers a criminal record.
Lack of transparency at referral stage and absence of requirement to provide reasons for course of POSITIVES/ action chosen (CJI, 2008) Questionable appropriateness for minor offences (Jacobsen and Gibbs, 2009, Maruna, 2007) NEGATIVES Time delays from offence to convening of conference (Campbell et al, 2006) Not being informed of right to legal advice (Campbell et al, 2006) Victim attendance below targets (Jacobsen and Gibbs, 2009) Questionable effectiveness of repeated conferences for same individual (Campbell et al, 2006) Possibility of court reaction influencing the content of the conferencing plan (Campbell et al, 2006) Reported negative impact of a required police presence at conference (Maruna et al, 2007) against a history of police mistrust in many communities. However the YCA say that problems are rare except where frontline the police appear in the victim role, e.g following assaults on police. They require careful preparation to adjust to the different role. The YJA report problems with care home staff – quick to report misbehaviour on their premises to the police and not happy to expose their vulnerabilities as victims given that they will be on duty with the children the next day,.
The service was extended to cover 17 year olds in 2005. CHANGES In April 2009 the Agency and the Probation Board of NI launched a 2 year pilot ‘Priority Youth Offenders Project’, aimed at improving co-operation and effectiveness. A key feature is a circle of 7 – 3 professionals and 4 lay people involved in the children’s lives – who work as a team, cooperate and keep in close contact with the child.. Restorative conferencing was introduced on such an extensive scale by virtue of the political impetus for CONTEXT comprehensive reform of justice arising from the Good Friday Agreement negotiations. The judiciary (District Judges) originally opposed their loss of sentencing discretion but most have now come round to it. However they would like discretion to impose 2-year YCOs for repeat offenders. Victim Support were reluctant to engage for 5 years but have now recognised the benefits flowing from managed encounters with young offenders.
REFERENCES Assembly and Executive Review Committee, Youth Justice Agency of Northern Ireland (24 February 2009) Northern Ireland Assembly : Hansard Campbell, C., Devlin, R., O’Mahoney, D., Doak, J., Jackson, J., Corrigan, T. and McEvoy, K. (2006) Evaluation of the Northern Ireland Youth Conference Service, Belfast : Northern Ireland Office Campbell, P. and Wilson, M. (2008) Court Prosecutions and Sentencing for 10 to 17 year olds 2006, Belfast : Northern Ireland Office Criminal Justice Inspection Northern Ireland (2008) Youth Conference Service Inspection of Youth Conference Service in Northern Ireland, Belfast : CJINI Jacobson, J. and Gibbs, P. (2009) Making Amends : Restorative Youth Justice in Northern Ireland, London : Prison Reform Trust Maruna, S., Wright, S., Brown, J., van Marle, F., Devlin, R. and Liddle, M. (2007) Youth Conferencing as Shame Management: Results of a Long-term Follow-up Study, Belfast : Youth Justice Agency Northern Ireland Commission for Children and Young People (2009) Children’s Rights: Rhetoric or Reality. A review of Children’s Rights in Northern Ireland 2007/8, Belfast : NICCY Public Prosecution Service (2008) Guidelines for Diversion, Belfast : PPSNI Tate, S. and O’Loan, C. (2009) Northern Ireland Youth Reoffending : Results from the 2006 Cohort, Belfast : Northern Ireland Office Youth Justice Agency (2009) Youth Justice Agency Annual Report and Accounts 2008/9, London : The Stationery Office Visit to Youth Justice Agency by members of YCC and Tribunal Team on 8/9.2.10 MODEL NORTH LIVERPOOL COMMUNITY JUSTICE CENTRE
BACKGROUND North Liverpool Community Justice Centre (NLCJC) opened in September 2005 in a disused school. Inspired by Red Hook, it was designed as a one-stop shop community resource for tackling crime, using a problem-solving approach with offenders and delivering preventative and social services for the wider community. It covered the 4 wards of Anfield, Everton, County and Kirkdale - with 80k people, 96% white - selected on the basis of crime, deprivation, truancy/school exclusion and community participation levels. It aimed to reduce low-level offending, ASB, fear of crime and arrest to sentence time; and to increase public confidence, community sentence compliance, victim/witness satisfaction and community CJS involvement.
CATEGORISATION A multi-purpose multi-age community court focusing on socially harmful behaviour, with key features as below: Multiple jurisdiction (criminal offences, ASBO applications, enforcing confiscation orders, education welfare, truancy and, environmental offences); a single judge for consistency, accountability and continuity; multi-agency working with on-site teams; a problem-solving approach; and extensive community support services e.g. CAB and drop-in activities including work to identify local issues and projects for diversionary and community sentence work.
GATEWAYS No separate gateway mechanism.
SIDEWAYS Sideways referrals not discussed REFERRALS CJS and ASB diversion pathways not discussed, but by implication are similar to those in other areas. The Centre does run non-justice system youth engagement work in-house and finances some externally e.g. fire safety, healthy living, music, a five-a-side football league and school holiday activities.
CLIENTELE The Centre was established to deal with lower-level ‘quality of life’ offenders including drug-related, car crime and burglaries; people accused of ASB and truancy-related offences; those liable to civil action including injunctions for e.g. environmental problems and running crack houses.
INVESTIGATION The research (by Ecotech – see References) does not separately discuss how under 18s are dealt with. A single Local judge, appointed by a panel including 2 local residents as both Circuit and District Judge, deals with youth, magistrates’, county and Crown Court cases. (Deputy DJs familiar with the court’s way of working cover e.g. holidays) The court operates to broadly the same framework as elsewhere but focuses on problem-solving, in 3 main ways. A pre-court meeting each morning of the police, YOT, Probation Service, CPS, defence legal adviser and Centre Manager reviews the expected cases and aims for effective case management. On individual cases multi-agency problem-solving meetings with offenders identify options for sentencing and support to address causes of offending behaviour – see next bullet. Also there is continuing court oversight – see Monitoring and Reacting below. The court first takes guilty pleas and when necessary resolves disputes on fact. The Judge is supported by volunteer magistrates from other courts or summary trials. Crown Court cases go to Liverpool Crown Court for trial but back to NLCJC for sentencing. Ecotech say that ‘strong judicial leadership’ has led to 82% guilty pleas c.f.68% nationally, most at the first hearing – which reduces adjournments and delays. The Judge is well prepared for hearings and familiar with case histories, meaning that he is able to robustly probe the plea and ensure it is in line with the evidence; defence representatives are aware of and generally support the NLCJC’s problem-solving approach; and offenders are keen to receive the targeted, problem-solving interventions on offer.
Once guilt has been established, by plea or trial on a not guilty plea, if the judge considers underlying problems are causing or exacerbating offending he adjourns the case for a same-day problem-solving meeting (all relevant agencies being on-site, sharing a large open-plan room). These are held in an informal setting, away from the courtroom with a same-day oral report back to the judge. They are usually chaired by the probation/YOT officer and involve the offender, their defence solicitor, a friend or family member if appropriate and services which might be able to help in addressing the particular problems (e.g. housing, drug and alcohol treatment agencies). Prosecutors do not take part, on the grounds that this is still an adversarial system.
These problem-solving meetings put the offender at the centre of devising solutions and recommended sentencing options; although defence representatives attend proposals are not routed through them. They aim for specific commitments, which can include on-the-spot proposed sentence plans incorporating actions and responsibilities for the offender and agency staff. The judge may then sentence on the same day, although he can alternatively opt for ‘continuous adjournments’ (see Monitoring and Reacting ) as a form of progress review with leverage. Also, during the formal hearing the judge will frequently mention the services available in the Centre and recommend to offenders or family members present that they make voluntary use of specific services e.g. housing advice, counselling or drugs/alcohol services. The judge readily proceeds with cases even where information may be missing, or turns down requests for adjournments, because they can have a detrimental impact at a critical point in a case and they also increase the potential for non-attendance at future hearings. On the YCC visit the Judge said he regarded the system as virtually inquisitorial – albeit by the back door and with dependence on defence solicitor cooperation. He added that though the Centre should deal with them [detail unspecified] he did not regard children as suitable for adversarial trials, or indeed criminal liability, until at least 14. The physical presence of police at the NLCJC helps swift responses to non-appearance including home visits. The Centre has a permanent on site Victim Support representative. Victims can access support whether their case has been reported or not and whether or not it is heard at the Centre.
RESPONSES The sentencing powers are standard, but in practice substantial reliance is placed on community reparation. The NLCJC seeks to repair harm to victims through a restorative justice (RJ) service. Staff are trained to apply RJ to crime and in other contexts, e.g. schools and with registered social landlords. Direct RJ conference contact between offender and victim is sometimes used; otherwise an RJ facilitator acts as a conduit for exchanges of views between victim and offender which may lead e.g.to letters of apology. The Centre also facilitates reparation work, mainly through the YOT e.g. improvements to the local physical environment requested by the community, through Referral Orders or Reparation Orders, which can sometimes lead to later victim-offender contact. The Centre’s wider community engagement work covers awareness-raising; information about court operations and successes; projects with community, sports and social groups; and sessions on e.g. drugs, sexual health and community safety. The judge said on the YCC visit that he would like more choices for dealing with young offenders ‘at the doors of custody’: for example weekday residential settings providing structured work and activities, with offenders going home at weekends. The court can refer offenders to local community mentors. GROUPS/GANGS Not discussed.
COMPREHENSION The court procedure the YCC visitors saw was quite formal and conducted largely between the judge and the advocates. However the judge then turned to the young person, made them stand and explained what was happening to them The judge uses eye contact, personal language such as ‘I will not be happy’ and personal encouragement to end criminal lifestyles. Offenders surveyed generally appreciate his taking an interest in their lives. The court has the normal raised bench, but the defendant is physically closer to aid interaction.
TIME The Ecotech evaluation found that ‘the community justice approach supports effective and efficient court operation, (avoiding) unnecessary delays and bureaucracy… Effective case management and information exchange and multi-agency pre-court meetings have reduced hearings per case…’ The time taken from first hearing to sentence is 26 days on average at the NLCJC compared with a national (all ages) average of 147 days (sic) and a national target of 112. The YCC visit was told that the court gets through a third more cases in a day than traditional courts, thanks to the on-site services and the police bringing in non-attenders on the same day.
CONTROL OVER Control as such is not directly discussed. However the court has a full range of offender, ASB-related and SERVICES community services on-site, so that in practice it is able to call on rapid, dedicated support e.g. enabling the trial day and review meetings summarised under Investigation above and (for young offenders) ample reparation activities tailored to community needs.
MONITORING AND The court maintains oversight of offenders’ progress, in the case of adults through regular reviews of REACTING Community Orders under s178 of the Criminal Justice Act 2003 (powers granted to NLCJC on a pilot basis and used with 30% of community orders) or continuing contact with those sentenced to custody. Offenders subject to s178 report to Ecotech greater ability to meet their conditions, and staff report that it increased opportunities to identify issues that might be undermining ability to comply. Section 178 does not cover juveniles. The judge would like an equivalent power, as well as a conditional cautioning power, but in its absence runs a system of continually adjourning final sentence. The judge uses discretion to identify when reviews are appropriate: typically they are when offenders’ circumstances lead to doubt about their ability to complete their Order (e.g. including previous history of persistent re-offending or failure to comply with Community Orders, or factors in personal life e.g. financial, family, drugs or alcohol problems. An order can be amended at one of these hearings. Initial staff and offender surveys suggest these reduce the frequency and severity of offending, in particular by the most prolific. The court has a ‘robust approach’ to dealing with sentence breaches. In all cases arrest warrants are issued with no bail option within 24 hours c.f. the national target of 90 %. Offenders who successfully complete their programmes are congratulated in court and presented with a certificate of achievement.
CASE NUMBERS A total of £4.2 million was invested in refurbishing and equipping the building. AND COSTS The annual budget is £1.65 million – reduced since it started, though service levels remain the same.
OUTCOMES Offending and public confidence outcomes are not measured owing to lack of baseline data for the catchment area. The Ecotech evaluation, based on interviews, found that: The positive outlook of staff, strong judicial leadership and co-location of services had ensured a more tailored and responsive approach to offenders’ needs. Case studies with offenders suggested that the problem-solving approach enhanced engagement with the court and compliance with their sentence, and helped them through finding solutions for problems creating reoffending risks. Staff evidence suggested that the NLCJC had raised awareness of RJ, enabled speedier resolution of victims’ and witnesses’ queries and increased their satisfaction with the services they received. The community attitude survey showed increased awareness of the Centre, from 20% in Wave 1 to 31/32% in Waves 2/3 respectively), but not yet increased confidence in the CJS (not very or not at all confident rose from 62% to 64%). The YCC visitors were told of a local culture of resistance to ‘grassing’ on offenders; but also of some community complaints of sentencing leniency, with staff responses including ‘mock sentencing’ sessions for the public bringing out the kind of information on defendants and circumstances which are revealed by social inquiry reports.
RECORDS Not discussed. Clearly standard practices apply.
POSITIVES/ NEGATIVES CHANGES CONTEXT
REFERENCES Evaluation of the North Liverpool Community Justice Centre. Katharine McKenna, ECOTEC Research and Consulting, Ministry of Justice Research Series No.12/07 2007. ISBN 978 1 84099 109 3 Notes on YCC visit to the NLCJC, 12.05.09. MODEL REFERRAL ORDERS - ENGLAND AND WALES
BACKGROUND Referral Orders and the related Youth Offender Panels were piloted from 2000 and introduced nationwide in 2002 as part of a general youth justice reform package for England and Wales – with preventing offending the prime objective, new sentences and the creation of the national YJB and local multi-agency Youth Offending Teams (YOTs). The Orders were designed as a restorative justice conferencing mechanism for children pleading guilty on their first court appearance; changes last year made their use a little more flexible but they are still intended for early in children’s criminal careers.
CATEGORISATION A restorative justice panel process, carried out as a court sentence.
GATEWAYS Referral Orders form part of a much wider youth justice structure – not described in this summary – and their position within it is significant (1/3 of under 18s’ court sentences) but circumscribed. Essentially they are designed for fairly early in a child’s criminal career – normally when he/she first has to go to court (and pleads guilty there), any pre-court disposal options having by then been used up on his/her first couple of offending episodes. Specifically, and taking account of adjustments made over time, they are now: Mandatory where it is the child’s first youth court or magistrates court appearance, he/she has no previous convictions and has pleaded guilty to an offence punishable with imprisonment Discretionary on first court appearance/guilty plea to a non-imprisonable offence; or the child has one previous court conviction (not leading to a Referral Order) and is pleading guilty this time; or exceptionally where the YOT recommends a Referral Order following a previous Referral Order; or the Crown Court is dealing with the case. Exceptions are the most serious and least serious offences. Referral Orders cannot be given where the sentence is fixed by law [i.e. for murder or manslaughter]; or is so serious that the court proposes to impose a custodial sentence; or the court is proposing to make a hospital order; or the offence is relatively minor and the court proposes to give an absolute discharge. . SIDEWAYS Not strictly applicable. However as noted above a court can make a hospital order instead of a Referral REFERRALS Order. CLIENTELE Children aged 10 and under 18 who have pleaded guilty to an offence, usually on their first time in court (details under Gateways above).
INVESTIGATION When the court makes a Referral Order the child is referred to a Youth Offender Panel, to meet within 20 working days A YOT worker should first meet the child and their parent(s)/guardian(s) within 5 working days of the court hearing, explain the process (see Comprehension below), assess the child using e.g. the standard ASSET tool and present a report on the background and general (not specific) reparation and intervention options to Panel members at least 2 days before it meets. Panels comprise at least two community volunteers, a YOT member as Panel Adviser, the child, his/her parents/carers (see below) and the victim – the latter is invited either to attend the panel or have his/her views represented. Alternatively corporate victims may be encouraged to attend and offer activities suitable for child offenders. Panel members should be 18 or over and representative of the local community. Selection is based on personal qualities. YOTs train them. They serve for 3 years, extendable by 3 more. Children are not legally represented at Panel meetings. This is to avoid hindrance to directly involving the child and enabling him/her to take responsibility for his/her offending and future behaviour. Lawyers may be present as parents, carers or supporters, but wherever possible children should speak for themselves throughout. For under-16s a named parent/guardian (or local authority representative if the child is ‘looked after’) must attend; and the court may require this for a 16/17 year old. A parent/guardian who does not comply can be taken to court and if the circumstances warrant it be given a Parenting Order, enforceable on breach by a fine. If despite this the parent/guardian will not attend there is exceptional power for an ‘appropriate adult’ acceptable to the child and Panel to attend instead. Parents/guardians are seen as having a primary role in preventing offending and supporting children to carry out referral order contracts; the aim is to engage them fully, if necessary with YOT support. Panel meetings are held in community venues where possible, though YOTs can negotiate use of business premises e.g. of organisations which offer activities for child offenders. The community panel members should take the lead in the panel meeting and one of them chairs; the YOT’s Panel Adviser provides background information and a report for them. Panels are expected to operate on the restorative justice principles of responsibility, reparation and reintegration – aiming for a discussion which reviews the offence and its consequences, improves offenders’ awareness and sense of responsibility for the consequences of their offending and leads to agreement reparation/restoration to the victim/wider community and interventions/activities to address the reoffending risk. (See Responses below). Victims should be able if they wish to say how they have been affected by the offence, ask questions, receive an explanation and/or an apology and discuss how the offender can make practical reparation. Some YOTs facilitate this process conscientiously, but reportedly others do not seriously encourage victims to attend and present Community Members at the outset with a prepared contract for the child. If the child will not agree a contract a further meeting may be held within 10 working days. If no contract can be agreed he/she is returned to the court which can replace the Order with another sentence.
RESPONSES A Referral Order contract can run for between 3 and 12 months, depending on the seriousness of the offence Panels aim to agree reparation/restoration to victims/communities and interventions/activities to address reoffending risks. Reparation to individual victims should be proportionate, and usually comprises an explanation, verbal or written apology and practical recompense including financial compensation for the harm caused. Reparation to the wider community should be designed to make young people aware of the impact of their offending and to make amends. YOTs are expected to have a menu of daytime and evening work available, working with police neighbourhood teams and encourage community group offers. The aim is for physical work (such as clearing up litter, graffiti or vandalism, or helping with other environmental improvements and conservation); and/or helping people (such as working with elderly or disabled people, or helping to get messages across to other young people at risk of offending). Reportedly, some areas struggle to find meaningful reparation work ) Interventions/activities are drawn from offending behaviour programmes, family counselling, sports or youth work, mentoring, psychiatric or psychological assessment, anger management, constructive leisure programmes, road or fire safety, cognitive behaviour programmes, employment or careers advice, victim awareness, substance misuse programmes (including alcohol and solvents), weapon awareness programmes, requirements to attend school or to stay away from specified places or people, non- electronic curfews and attendance centre sessions. Children close to the custody threshold can receive intensive contracts with greater support and supervision, possibly combined with non-electronic curfews and restrictions.
GROUPS/GANGS Referral Orders are intended for individual children who meet their criteria. COMPREHENSION The court must explain to the child in ordinary language what will happen as a result of the referral order and what the consequences of not agreeing or complying with the contract will be. The allocated YOT worker should meet the child and parent(s)/guardian(s) within 5 working days of the court hearing and clearly explain the Referral Order and Panel procedures, including the child’s rights and choices. As explained under Investigation, Panels may be held in community buildings, both child and parents are encouraged to participate fully and the Panels seek negotiated contracts. Contracts should be written in ordinary language, read aloud to the child as appropriate and given to them.
TIME As noted, a Panel must meet within 20 working days of the court making a Referral Order and court can decide on a term of 3 to 12 months.
CONTROL OVER As explained under Responses, YOTs are responsible to Panels for advising on what may be done under SERVICES contracts, monitoring compliance and providing agreed interventions either alone or through negotiation with other local bodies. MONITORING AND On individual cases: REACTING The Panel monitors the young offender’s compliance with the contract, including progress meetings every 3 months and a final meeting to take stock overall. On successful completion the conviction is spent. In the event of failure the Panel may refer the child back to the court, which may revoke the order and re- sentence. The child’s YOT case manager is responsible for day-to day monitoring, regular assessments, notifying the Panel of any failure to comply and providing progress reports for Panel discussion. Discussion should focus on contract compliance, acknowledging and reinforcing progress, any difficulties with the terms of the programme and what support is being offered. A Panel can vary a contract which has proved too demanding or if circumstances have changed. The child may request a progress meeting, to vary the contract or seek revocation. Courts are informed of successful completions. If a child does not carry out the contract and cannot offer a reasonable explanation, unless there are exceptional circumstances the Panel must refer him/her back to court, with reasons, to consider re-sentencing. At the hearing the court will consider the circumstances and make a finding of fact in respect of the Panel’s report before reaching its decision. A contract can be extended for up to 3 months where a child has been unable to comply for reasons beyond his/her control, as a measured response to non-compliance or (on Panel representations) if the child reoffends during the contract. On the general operation of Referral Orders: YOTs should provide regular reports to Judges, magistrates and their legal advisers on the operation of Referral Orders and Panels, including aggregate and where necessary specific feedback on the contents of contracts and the outcomes of orders. YOTs should also hold regular liaison meetings with magistrates and ideally joint events for judges, magistrates and their legal advisers and community panel members. (The AOPM Chair says practice is very variable in this respect.)
CASE NUMBERS In 2007 there were 32,142 Referral Orders, comprising 33% of the 97,387 sentences imposed on under- AND COSTS 18s and 49% of the community sentences. Referral Orders are used for a wide range of offences. 17,725 were for indictable offences including 2966 for violence against the person, 169 sexual offences, 2070 burglary, 1434 robbery, 6614 theft/handling, 236 fraud /forgery, 1384 criminal damage, 1530 drugs, 1195 other non-motoring and 127 motoring. 14,417 were for summary offences, 12,799 of them non-motoring. (Figures from the Ministry of Justice Sentencing Statistics for 2007, Tables 3.4 and 3.6.) Home Office pilot-based research in 2002 estimated set-up costs per area of £38,180; Panels at £130- 350 for initial meetings and £50-130 for review or final panels; contracts at £100-400, average £110; and mean overall Referral Order costs at £690 (prices not updated).
OUTCOMES Reoffending rates are complex but Referral Orders do compare well with the nearest England and Wales equivalents. The basic one-year reoffending rate (% of children who reoffended) following Referral Orders in 2007 was 40.5% - significantly lower than for other first-tier court disposals: Discharge 53.9%, Fine 59.9%, Reparation Order 65.5% and miscellaneous 65.2%. Referral Orders also scored better on frequency and severity of reoffending .To give some wider perspective, non-court disposals’ basic rate was 26.4%, community sentences 69.0% and custody 75.3%. (Table A5 (Part 1) in Reoffending of juveniles: results from the 2007 cohort England and Wales. Ministry of Justice Statistics bulletin) Home Office pilot-based research in 2002 found amongst other things: Children. Most meetings involved one child and 3 Panel members. 68% of children attended with one other person (usually their mother); 15% came alone. Many had active role in Panel meetings. They were more likely to offer an apology where a victim was present. 91% understood what was going on, ¾ did not feel pushed into anything they disagreed with, over two thirds gained a clearer idea of how people had been affected by their offence and 78% felt that their contract had kept them out of trouble (though c.f. the reoffending rates above) Victims. Attendance was disappointing, at 13% of initial Panel meetings. Numbers were higher where they were encouraged; indeed half of non-attenders had not actually been invited Following up this Home Office evaluation, YJB- sponsored research with practitioners and users in 2003 found that: Role of Referral Orders. 54% of clients were first- time offenders who had, in most cases surprisingly, bypassed pre-court reprimands and final warnings. Many had committed motoring and minor general crimes not involving personal loss or injury and with no direct or sufficiently-aggrieved victims. Courts were therefore given more discretion in 2003: see Changes. More serious offences. Views were split over suitability for more serious offences such as robbery and aggravated burglary and more complex behavioural ones involving mental health or sexual issues. Panel members and YOTs were generally confident with these; courts were only where fully informed about Referral Order practice. Despite suggestions that courts were using custody to circumvent Referral Orders, its use for first-timers in court dropped from 9% in 2001 to 8% in 2002.
RECORDS As noted the conviction is spent if a child completes his/her contract and the court discharges the Referral Order. This is an exception to normal practice reflecting that the Referral Order is usually on first conviction and explicitly gives the child the chance to make amends for the offence and to put it behind him/her. A spent conviction does not have to be disclosed to e.g. employers or insurers but as with convictions leading to other sentences can be cited in future criminal proceedings.
POSITIVES/ Muncie and Goldson summarise criticisms which have been made, including: NEGATIVES RJ’s informality, flexibility and discretion sit uneasily with due process and fair trials. And Referral Orders in particular are; An essentially coercive bolt-on to what remains a just deserts, punitive, retributive system. Used with low-level offenders who need not be brought before courts at all Have low victim participation Panels which deliberate on programmes tackling behaviour with no legal representation (Article 6 fair process ) Obligations on parents conflicting with Article 8 (private life). Not provided the socio-economic resources necessary to become real stakeholders in the community
CHANGES Referral Orders have been adjusted over time as follows: From 2003, made discretionary rather than mandatory for first-timers in court pleading guilty to non- imprisonable offences. This was to reduce the proportion who were not just first time in court but first- time offenders (e.g. Outcomes). From 2009, extended to second court appearances where a Referral Order was not given the first time (e.g. because of a guilty plea or use of absolute discharge); and repeat Referral Orders allowed exceptionally. Details are under Gateways.
CONTEXT
REFERENCES Referral Orders and Youth Offender Panels: Guidance for the courts, Youth Offending Teams and Youth Offender Panels. Guidance by the Ministry of Justice, Department for Children, Schools and Families and YJB, revised May 2009. Published on the Ministry of Justice and YJB websites. Home Office Research Study 242: The Introduction of Referral Orders into the Youth Justice System: Final report,2002 Referral Orders: A summary of research into the issues raised by The Introduction of Referral Orders in the Youth Justice System. Prepared by Cap Gemini Ernst and Young, Crime Concern and Social Software Limited, published by the YJB, 2003. England and Wales: The New Correctionalism. John Muncie and Bary Goldson, Chapter 3 of Comparative Youth Justice, ed Muncie and Goldson, SAGE Publications., London 2003. MODEL SOUTH AFRICA – MULTI-LEVEL GATEKEEPING
BACKGROUND Child Justice Act 75 of 2008, enacted 2009, likely to be implemented 2010 (no date yet set) Product of successive reviews and consultations, including with children, since 1996 Aims for rights-based approach to YJ; also to ensure accountability for actions and respect for victims’ and communities’ fundamental freedoms, and to prevent crime and promote public safety through diversion, new sentencing options and RJ
CATEGORISATION Child-oriented CJ process, subject to 2 prior levels of gate-keeping with pre-trial diversionary options Separate from, but w/powers of sideways referral to, welfare-based civil law Children’s Courts. Covers 10-17, plus power to include under-21s who offended while under 18 (DPP due to prescribe detail) Doli incapax presumption for under-14s subject to proof beyond reasonable doubt by prosecution of doli capax CJA 75 trials can be held in any level of court, with an inquiring magistrate or in the High Court a judge as Presiding Officer Police can accuse under-10s of offences but with no implication of criminal liability. They have to be referred to probation officer, who can counsel, provide accredited (educational) programmes, or refer them to civil Children’s Court (CC).
GATEWAYS Depending on seriousness, police service written notice (must be explained to child & if possible parents) or summons, or arrest child (& then release unless offence serious) Then undergo formal Pre Trial Assessment (PTA) led by Probation Officer (PrO), unless Prosecutor (Pros) decides not in best interest of child (BIC). Aim of assessment developmental, focusing on strengths and abilities: also covers age, previous criminal history, prospects of diversion, any need for pre-trial detention, any need for expert evidence at trial, and whether child used by adults Child and parent/guardian/appropriate adult must attend PTA, unless latter against BIC. PrO/police officer must make every effort to track down parents. PrO can also invite diversionary service provider, researcher or any other necessary person. Legal reps not debarred from attending, at their request. PrO must explain things properly to child, encourage participation and (for purpose of considering diversion) ask whether he/she intends to acknowledge responsibility for the offence PTA results in report to pros on whether child can be released, diverted and if so to what, transferred to Child Court for child protection proceedings or should go on to Preliminary Inquiry (PI); or whether more detailed pre-trial assessment needed first on grounds of child danger to him/herself or others, possible need for sex offender programme, social welfare or offending/absconding history or for more detailed consideration of diversion PTA must happen within a day or so after child arrested; otherwise timetable specific to case Pros can then decide on: diversion (for minor offences, if child acknowledged responsibility and subject to magistrate agreement); case withdrawal; or not to proceed on doli incapax grounds. Prosecution only possible if Pros has considered education, cognitive and environmental circumstances, age and maturity, the offence, PrO’s report, victim impact, community interest, appropriateness of diversion and for under 14s the prospects of establishing criminal capacity If case proceeds child goes to Preliminary Inquiry (PI) within 48 hours of arrest unless postponed (up to 48 hrs to consider diversion further or up to 14 days for more detailed child assessment). Policy aim of new stage/timetable to prevent children getting lost in system and ensure different services working together. Inquiry Magistrate (IM) presides but procedure explicitly pre-trial, informal, inquisitorial, held in courtroom or elsewhere. Considers PrO’s assessment and decides on diversion, transfer to Children’s Court for care and protection proceedings or listing for Child Justice Court (CJC) trial. IM is proactive, questioning child and parents (and encouraging their participation) as well as Pros and PrO. IM must establish at outset whether child acknowledges responsibility for offence. If yes, IM may order diversion or establish from Pros whether prima facie evidence then refer case to CJC
SIDEWAYS Cases can be referred out of YJS to CC for care and protection proceedings REFERRALS Diversion within YJ process at 3 different stages: Following PTA (for minor offences). Pros must consider victim’s views, if reachable, consult police and ask magistrate (in chambers) to order diversion; By IM’s PI. Prima facie case and pros agreement needed; By CJC. Proceedings postponed and later halted if child has successfully complied with diversion order. In all cases depends on child having acknowledged responsibility for offence and having consented (and his/her parent having consented) to proposed action. Made clear this will count as an admission if he/she breaches and case comes to trial. Programmes and providers are accredited and programmes evaluated. All diversions are entered on register and citable in subsequent cases. For minor offences, diversion can comprise: apology, caution with/without conditions and various orders for supervision and guidance, school attendance, family time, restrictions on particular peer associations or places, counselling, therapy, VT/educational programmes, restitution, community service and/or compensation For more serious crimes diversion can also include part-residential programmes, general movement restrictions and restorative justice (RJ) Designated probation officer monitors progress. If child successfully complies this is reported to the PrO, who ‘deals with the matter’. If child fails reported to magistrate or court, which conducts an inquiry into whether it was his/her fault. If it was and the Pros had initiated the diversion, they decide whether to proceed for the original offence; if it was magistrate or court diversion they can initiate a trial (treating any acknowledgment of responsibility prior to diversion as an admission for trial purposes) or order more onerous diversion. RJ is one diversionary option. Can comprise FGC, VOM or other processes. Not clear who presides, but implication is registered diversionary agency. Participants are offender, victim, both families and community members. Addresses harms, needs and obligations through acceptance of responsibility (a precondition), restitution and measures to prevent reoffending and promote reconciliation. It results in a ‘recommendation to be confirmed or altered by the court’
CLIENTELE Criminal process, dealing only with alleged criminal offences ASB not discussed Case numbers not estimated Adults can be considered by same court (generally an all-age court), subject to adult trial procedures. Not clear whether this debars joint trials
INVESTIGATION CJC not a separate youth court, but a general criminal court which applies CJA 75 procedures to child accused Law provides for one-stop Criminal Justice Centres, which would include child-only courts, but their establishment at discretion of Minister of Justice If there is a co-charged adult, court has to apply adult trial procedures to them (not clear whether requires a separate trial) Privacy – only people present are those necessary to proceedings or otherwise permitted by magistrate; child’s identity may not be published Child must be assisted by parent, guardian or appropriate adult (unless exempted in writing because, eg, they would lose their job). If parent warned to be at court fails to attend can be found guilty of an offence and fined or imprisoned for up to 3 months Presiding Officer (magistrate, judge if High Court) has to ensure BIC are upheld including ensuring proceedings are fair, not unduly hostile to child and appropriate to his/her age and understanding By implication court will have available reports of PTA and PI Pros may consider views of victim and impact of crime on him/her and provide victim impact statement to court Accused children can appoint own lawyer, or failing that have one provided by Legal Aid Board at state expense if ‘substantial injustice would otherwise result’. If child refuses any legal rep court can appoint independent lawyer to assist process, cross-examine and generally ensure fairness without actually representing the child
RESPONSES Diversionary responses (see above) – take form of magistrate orders but agreed/negotiated with children who acknowledge responsibility for offences Courts must sentence in line with Art 37 UNCRC; sentencing purposes also require encouraging understanding and accountability, individualised responses, balancing the child’s circumstances, the nature of the offence and the interests of society, promoting reintegration into the family and community and using supervision, guidance, treatment and/or services to assist reintegration into society Options are: community sentences (same range as diversion, above); RJ sentences eg FGC and VOM which result in a recommendation ‘to be confirmed or altered by the court’; correctional supervision, which includes imprisonment, for age 14+; suspended sentences; measures in lieu of a fine or imprisonment such as symbolic restitution or compensation; custody in a child youth centre or prison, for age 14+. Child youth centres embrace the former places of safety, secure care facilities, industrial schools and reformatories
GROUPS/GANGS PrO’s PTAs can include co-accused if it is in best interests of all the children
COMPREHENSION Process intended to cover these issues and magistrates have general obligations; detail not spelt out
TIME Not clear, except that If a child has been arrested he/she normally has to go before a magistrate’s PI within 48 hours CONTROL OVER Not spelt out in detail. Court supported by a probation office, and accredited services and providers run SERVICES diversionary programmes MONITORING AND When imposing a community-based sentence, fine or RJ the court can request a probation officer to REACTING monitor compliance and provide updates to the court PrO can identify a ‘suitable person’ in the community to act in the best interests of the child, and appoint him/her to monitor compliance If a child fails successfully to complete diversion he/she can be taken to court and sentenced for the original offence or given a more onerous diversionary order. Not clear what if any options the court has if the child fails to comply with a court community-based order
CASE NUMBERS System not yet in operation; no estimates provided AND COSTS OUTCOMES As above
RECORDS Records of convictions for serious offences are kept permanently. Those for other offences may be expunged after 5 or 10 years on application to the Justice and Constitutional Development department Records of successfully completed diversion orders may be expunged at age 21 unless there has been a subsequent conviction
POSITIVES/ No experience yet NEGATIVES CHANGES No experience yet. Previous post-1989 system characterised by institutional discrimination between races, new system intended amongst other things to correct, apparently through general HR obligations CONTEXT References: South African Child Justice Act, 75 of 2008 Getting to know the Child Justice Act, Jacqui Gallinetti, Child Justice Alliance, University of Western Cape 2009, ISBN 978-1-86808-699-3 MODEL SCOTLAND – CHILDREN’S HEARINGS
BACKGROUND The Children’s Hearings system was introduced in 1971, following a major review by the Kilbrandon Committee which found that child offenders shared the problems of those needing care and protection: serious social or psychological malaise and failures in normal upbringing. Children, generally under 16, who commit offences and those requiring care and protection are now dealt with in the same system, often being the same children. Welfare-oriented lay panels, based on communities taking responsibility for working with children in trouble, decide on care, protection, guidance and control measures aimed at the best interests of the child and emphasising early and minimal intervention; with courts reserved for disputes on facts. However stronger law and order politics since the mid- nineties have influenced the youth justice system overall and to some extent the Hearings system e.g. more towards public protection, risk management and controlling persistent offending.
CATEGORISATION The system for most under-16s is civil, dealing with significant child problems including most alleged offending as child welfare issues. It takes welfare-only cases from birth and offending (or more strictly, offending-triggered) cases from age 8 (the Scottish age of criminal responsibility). Courts resolve disputes of fact where compulsory Supervision Requirements are contemplated, but do not decide (the always welfare-based) interventions except approving Panel proposals for local authority secure accommodation. There is also substantial diversion without recourse to the Hearings system. However criminal courts are used, in two ways. Serious alleged offenders and some vehicle offenders under 16 go to adult criminal courts (Sheriff Courts), which have discretion but no obligation to refer cases to Hearings. All alleged offenders aged 16-17 go to court and are generally dealt with there but can be referred to Hearings e.g. if under their existing supervision. . GATEWAYS Diversion. Some two thirds of child offenders are not referred to the Reporter or a Hearing because they and their families agree voluntarily to e.g. police cautions or police/local authority restorative/reparative actions. Such diversion has been expanded in recent years, with local authority-run early intervention panels involving police, youth offending services, education and community safety teams but not usually social services leading to voluntary warnings, reparation, school attendance agreements. While police written warnings are capped at two, children can go before the panels up to half a dozen times. Many children needing some care and protection but not identified as offenders are dealt with solely under voluntary social services supervision, i.e. if they and their parents agree.
Children are considered by the Reporter if they may need compulsory supervision. Reporters are local officials employed by the Scottish Children’s Reporter Administration, usually with a legal or social work background and accredited for Reporter work after training. Some now specialise in offending cases, though not exclusively. Referrals come from the police (88% of cases in 2008-09, 99.6% in the case of offence referrals), social workers or sometimes health or education services, members of the public or even children themselves. The specific grounds are offending; being beyond parent/carer control; at risk of moral danger; victim of e.g. physical injury or sexual abuse; likely to suffer serious harm to health/ development through lack of care; and/or misusing drugs/alcohol/ solvents. Also court Sheriffs refer for advice when considering ASBOs (see Clientele).
Under-16s can be sent straight to court for serious offences such as murder and assault putting a life in danger, and for road traffic offences which can lead to disqualification, but may still go to Hearings. The Procurator Fiscal (public prosecutor) has to decide if prosecution is in the public interest and can refer a child to the Reporter as possibly suitable for a Hearing. If the child is prosecuted the court may and sometimes must refer to a Hearing for advice on the best way of dealing with them, and it may subsequently decide on full referral.
If a child is considered to be in immediate danger, a Sheriff can grant a Child Protection Order. This is usually reviewed by a Children's Hearing on the second working day after issue, and a Hearing can extend it for a further 6 days to obtain more information. Alternatively a Hearing can issue a Place of Safety warrant.
The Reporter initially investigates and decides what if any action is necessary in the child’s interests. He/she seeks information about the child from social workers, teachers, police, health and voluntary organisations and anyone else who referred the case to him/her. He/she must specifically consider whether there is enough evidence to support the grounds for referral to a Hearing and whether compulsory measures of supervision are needed. He/she can then decide between no further action; referral to the local authority for informal and voluntary advice, guidance and assistance – usually from a social worker; and arranging a Children’s Hearing because compulsory supervision appears necessary.. SIDEWAYS There is no provision for formal sideways referral. The Hearings system embraces welfare and child REFERRALS protection. CLIENTELE The Children’s Hearings system deals with children under 16 with significant welfare-only issues and those aged 8-15 involved in offending (often in practice combined with wider welfare issues - e.g. an SCRA study showed that 62% of persistent young offenders (PYOs) had previously been referred on care and protection grounds ). Around 95% of under-16s go to the Hearings; the rest, serious alleged offenders, to the Sheriff Courts. Anti-social behaviour is separately recognised but marginal in enforcement and intervention terms. ASBOs have been introduced as a Sheriff Court disposal for under-16s, but only after referral to a [Reporter and] Hearing (to avoid establishing a parallel system) and more generally were launched as a ‘high tariff’ remedy for the most disruptive individuals and families. Professionals value ASBOs little. Only 14 have been imposed.
INVESTIGATION The forum for dealing with a child who may need compulsory measures is the Children’s Hearing, held by the Children's Panel. They are 3 lay volunteers from the local authority area’s rota, a mix aged at least 18 (in practice women and people above working age are easiest to recruit), from a wide range of backgrounds, carefully selected and highly trained (initially and in-service). 2500 people serve across Scotland – recommended by local Children’s Panel Advisory Committees (CPACs) and appointed by Ministers. SCRA administrative staff arrange meetings, attendance and supply of papers.
Panels can consider cases at a first meeting only where the child and parent/guardian accept the Reporter’s grounds for referral, or accept them in part and the Hearing decides it is proper to proceed. If the grounds are not accepted, or the child does not understand them owing to age or ability, the Hearing can discharge the referral or refer the case to the Sheriff court to decide whether the grounds are established.(see below). If they are the Reporter will arrange another Hearing.
If a child fails to attend a Hearing it can issue a warrant to ensure attendance next time. In some cases this may be a Place of Safety warrant, running for up to 22 days and renewable twice; after 66 days any further application goes to the Sheriff
The Hearing. The aim is to hold a small gathering able to proceed relatively informally and give the child and parents the confidence and privacy to take full part in the discussion about what needs to be done in the child’s best interests. A hearing is usually held in the child’s home area. The layout of the room is relatively informal with the participants usually sitting round a table The Chair introduces each person and explains his/her role. The hearing receives a report on the child and his/her social background from a local authority social worker, and where appropriate from the child’s school and medical, psychological and psychiatric reports. Parents, and generally the child if over 12, see the reports at the same time as the panel members. The Hearing discusses the child’s circumstances fully with the parents, the child and any representatives, the social worker and the teacher if present (see below re attendance). Decisions are reached in open session, and reasons must be given. The Chair records the issues discussed and outcome after the session closes.
Attendance. At the Hearing the Reporter’s role is limited, for human rights reasons. He/she attends to support fair process - i.e. when asked giving legal advice and identifying but not recommending options available to the Panel - and record decisions. The Reporter plays no other part, and no longer has prior discussions with Panels (see Changes). A social worker attends to inform and advise the Panel. The child normally must attend and always has the right to attend (except for exclusion where e.g. the content would cause them significant distress). Parents/ guardians must attend and they/the child may also take along shared or separate representatives (e.g. friend, teacher) to help them. There may be a legal representative: see below. Parents/ guardians/ representatives can be excluded from any part of the hearing so that the panel members can obtain the views of the child/young person, or to avoid distress to them, but the Chair must explain what happened
Parents normally meet their obligation to attend, motivated by the knowledge that Panels can remove children from home.
The Hearing, or the Sheriff in certain court proceedings, may appoint an independent person known as a Safeguarder – an independent person e.g. with a social work background – to prepare a report to assist the Hearing in reaching a decision in the child’s best interests where e.g. it is considering removal from home.
Victims are not involved in Hearings. Panels may choose to pursue with the child the consequences of the child’s action and whether he/she feels empathy.
The proceedings are private but a person from the press is allowed to attend the hearing although he/she may be asked to leave the room if necessary to obtain the views of the child, or if the child may be distressed by his/her presence. The press cannot disclose the child’s identity. A CPAC member can attend to monitor panel members’ performance, and members of the Scottish Committee of the Council on Tribunals. Other observers may attend if they have a legitimate concern with the case or the hearings system and the chair, child and family agree.
Legal advice. Legal advice from qualified solicitors on local panels is available before a Hearing free or at reduced cost to inform a child or parents/guardians about their rights at the Hearing and advise about acceptance of the ground for referral (and similarly before a Sheriff Court appearance). Most Hearings are not attended by lawyers, but there is free legal representation, not legal aid, where the Panel considers it necessary to allow the child to participate effectively or it considers a secure accommodation recommendation to the Sheriff Court is likely. Legal representatives are expected to be sensitive to the atmosphere and ethos.
Hearing referrals to courts. About 2% of Children’s Hearing cases are referred to Sheriff Courts for a decision on facts. This is taken on ‘beyond reasonable doubt’ for offence referrals and ‘balance of probabilities’ for other referrals.
Outright court trials are used (subject to the Lord Advocate’s permission) for alleged serious offenders under 16 and 15 year olds facing disqualification for vehicle offences (about 5% of under-16 offenders, 140 a year). On conviction courts can refer them back to a Hearing to decide disposal. They also take 16- 17s generally, i.e. unless the court chooses to refer one to a Hearing because he/she is currently under a Supervision Requirement or the court considers it in his/her best interests.
Trials are recognised to be an adult-oriented process. Children are said to ‘fall off a cliff’ at 16. (A youth court was piloted but dropped – see Changes.)
RESPONSES The Hearing must decide whether and if so what compulsory supervision is needed in the child’s best interests, including the wider picture and long-term wellbeing. Any compulsory measures take the form of a Supervision Requirement which can run up to the 18th birthday but should be reviewed annually and terminated when a Hearing decides it is no longer needed.
A wide range of conditions can be included, mainly with the child still at home. Some children have to live away eg with relatives or foster parents, or in local authority or voluntary organisation children’s homes or residential schools; or in local authority secure accommodation. However, McVie points out that Panels depend on social services’ capacity or otherwise to deliver and that supervision can be no more than an occasional ‘keep in touch’ meeting. McVie and McAra’s sample received a range of social work interventions: child and family work; educational welfare/special education/ psychologist work, individual contacts or general monitoring, befriending, voluntary sector referrals and work on offending or with youth panels.
There are no ‘accredited programmes’ directly to tackle offending behaviour or major contributors such as drugs and alcohol. Measures taken may not obviously link to the offence trigger: e.g. a child not receiving adequate parental care may remain at home because suitable support is available in their home area, while one committing a minor offence may be placed away from home if their background seems a major cause of the child’s difficulties.
Punishments, e.g fines are not allowed. Children may be banned from contact with other named people, and the Antisocial Behaviour etc. (Scotland) Act 2004 introduced movement restrictions combined with tagging plus intensive support – which are much used. For under-16s custody is little used, possibly because Supervision Requirements are not a hierarchy but a menu which can be used in different combinations and because there are few custodial places for under-16s. By contrast custody is reportedly higher than in England and Wales for age 16-17s, i.e. those who generally go to courts.
The child or the parents/guardians may appeal to the Sheriff against the decision within 21 days. Once lodged an appeal must usually be heard within 28 days.
GROUPS/GANGS [No current information.]
COMPREHENSION (As explained under Hearings) the layout of the room is relatively informal, with the participants usually sitting round a table. Casual dress is generally worn and the Chair introduces each person and explains his/her role .The child/young person normally must attend and always has the right to attend (except for exclusion where e.g. the content would cause him/her significant distress). Parents/ guardians must attend and they/the child may also take along shared or separate representatives to help them. If necessary to help the child participate effectively the Hearing may appoint a publicly funded Legal Representative. The parents/guardians and any representatives can be excluded from any part of the hearing so that the panel members can obtain the views of the child/young person, or if the child may be distressed by their presence, but the Chair must explain afterwards what happened. TIME The Scottish Youth Justice Baseline, by PA Consulting 2004, a performance improvement document with official backing and using official sources, showed that at that point offence-based referrals averaged 74 days (i.e. referral to the SCRA + police report + social worker report + Reporter decision + Hearing decision); PYOs (who were 65% of the offence–based caseload) took 66 days; and targets of 65 days average and 53 for PYOs were set for local areas. By 2008-09 the average time from referral to Hearing decision was 64 days for offence cases and 120 days for non-offence cases. Referral to courts to resolve disputed referral grounds can typically add 2 to 3 months to case duration [not clear whether reflected in the published averages]. CONTROL OVER The local authority is responsible for ensuring that Supervision Requirements are carried out. However SERVICES local authorities are under pressure and resent the extent to which Hearings decide use of their resources, and not all Requirements are effectively pursued. A Reporter can take proceedings against a local authority to ensure one is carried out – the SCRA think normally the threat of use is enough but the CYP Commissioner says delivery gaps continue. He adds that looked-after children in foster homes and even residential accommodation do better e.g. in education than those staying at home. . . MONITORING AND A Supervision Requirement must go before a Review Hearing within a year or it lapses. A Hearing may REACTING specify an earlier review, the child or parent/guardian may request one after three months and the local authority can call for one at any time. A Review Hearing, attended by the child and parents/ guardians, can continue, change or discharge the Requirement.
CASE NUMBERS In 2008-09, 47,178 (5.2 % of all Scottish children) were referred to Reporters. 11,805 were referred on AND COSTS offence grounds (i.e. 2.5% of Scottish 8 to 16 year olds). Of those 3.732 i.e. 32% were dual referrals, though the SCRA say that non-offending factors are more frequently present in practice. ‘Care and protection’ referrals have grown substantially over the past decade but offending referrals have remained fairly constant. Just over 60% of offence referrals were for breach of the peace, vandalism and assault. 46% were for a single offence. 2500 Panel members covered 42,866 Hearings: 16% new cases, others continuations and reviews (offence cases not split out) The Scottish Government funds the Scottish Children's Reporter Administration (SCRA) with some 450 full time staff in 42 centres, hearings premises, IT support, legal aid, national recruitment and Training Officers and [other support] for Panel members, Safeguarders and CPACs. Local authorities meet other training costs plus facilities for child assessment, [supporting the operation of children’s panels]’ and carrying out Supervision Requirements. The SCRA spent £26.904 m but this is not analysed by cost per case and in any event some cases incur court costs too.
OUTCOMES [The SCRA are working on outcome measurement but there is currently no evidence on outcome or cost- effectiveness.] McAra and McVie’s self–report study, similarly to other research by Waterhouse and David Smith, has found that through labelling, the earlier and the further a child progresses into the Hearings system the less likely they are to desist from further offending than comparable child offenders who avoided the system altogether. [However this is true of other systems including our own; and also early adversarial police contact actually amplifies serious offending later] They conclude that minimal intervention and maximum diversion are best, and that the Scottish system should be better placed than most to effect such improvements.
RECORDS Notwithstanding the welfare basis of the Hearings, their Supervision Requirements [on offenders ] constitute a criminal record for a year, then become spent. The police should weed records at age 16 but in practice some persist into adulthood.
POSITIVES/ McAra points to some problems soon evident within a system which was nevertheless much admired in NEGATIVES Scotland and elsewhere: Lay Panel members often come from affluent social groups, bringing their values to bear on the situations of the less privileged Strong social worker influence over the Panels Highly discretionary decision-making at both Reporter and Panel level The net-widening potential of applying needs-based solutions to children referred for trivial offences. In the first 4 years of the system the number of children referred to official agencies by virtue of offending rose by 45%. The system was allegedly better at care than dealing with offending – though outcomes research was lacking. and McVie highlights: The patchiness of social work and programme resources for Supervision Requirements. Kilbrandon recommended both generic family social work and structured offending behaviour social work but the latter has been ignored. Recent crime prevention programmes sometimes contribute but are patchy and often short term. ‘Planning blight’ from about 15 ½, with agencies effectively marking time until these children can go before the courts. The public are not generally familiar with the Hearings system, perhaps because it mostly stops at the 16th birthday; though some express concern that it is not sufficiently punitive like a court.
CHANGES McAra goes on to identify the impacts and potential future impacts of a changing political climate since the mid- nineties, with increasing concern about persistent offending and antisocial behaviour (albeit unrelated to the statistical trends): Greater managerialism creating multi-agency teams; speed, efficiency and effectiveness targets; focusing especially on reducing PYOs. Purposes, risks and targets. From 1995, Hearings have been able to put public protection above the child’s best interests when they posed a risk to others; building ‘what works’ with offending elements into social work programmes for persistent offenders; standardised risk assessments for all Hearings; PYO fast tracking (see Time heading) ; and piloting a 16-17s youth court in Hamilton. [National implementation of the latter since ruled out on cost grounds; and expanding Hearings’ age range ruled out because necessary enhanced powers [i.e. would not fit with the needs philosophy] ; Community safety. Positive community crime prevention, social inclusion and parenting support programmes accompanied by reducing the ASBO minimum age from 15 to 12 in 2004 [though little used so far, see Clientele] Victims given increasing weight, with restorative justice expanding upstream of Hearings in diversion schemes – with such expansions of diversion leading to concerns about cumulative net-widening – and reparation downstream in new court Community Reparation Orders In addition incorporation of the ECHR into UK law has led to: Human rights changes. The 2001 S v Miller case prompted the introduction of Safeguarders and some legal representation (see Investigation); and the raising of the minimum age of criminal responsibility to 12 in the Criminal Justice and Licensing (Scotland) Act 2010. The draft Children’s Hearings (Scotland) Bill in 2007 proposed replacing Reporters’ roles at Hearings with a separate Tribunal Administration, but was dropped in 2009 against opposition to weakening the local influence on the system. Now Rules have been made limiting Reporters’ roles- see Investigation above.
CONTEXT REFERENCES SCRA website www.scra.gov.uk and www.children’s hearings.co.uk , including SCRA guidance, Annual Report and Accounts 2008-09 and Statistical Analysis 2008-09. Notes of the Independent Commission on Youth Crime and Antisocial Behaviour’s 5 and 6.10.09 visits to the Glasgow Children’s Hearing Centre, SCRA officials and C&YP Commissioner for Scotland; and Tribunal Team’s notes of visit to SCRA Edinburgh on 2.2.10.. S v Miller (No 1) and (No 2), Scottish Court of Session (Inner House, First Division) 30.3.2001 and 7.8.2001. Scottish Youth Justice Baseline, PA Consulting 2.11.04 (accessible at www.childrenshearings.co.uk). Welfare in Crisis? Key Developments in Scottish Youth Justice, Lesley McAra, 2006. Chapter 9 of Comparative Youth Justice, ed. John Muncie and Barry Goldson, SAGE Pubications, 2006. Meeting with Susan Mc Vie, Edinburgh University Youth Justice?: The Impact of System Contact on Patterns of Desistance from Offending. Lesley McAra and Susan McVie. European Journal of Criminology 2007. MODEL US RED HOOK COMMUNITY JUSTICE CENTER
BACKGROUND The Community Justice Center (CJC, aka Justice Center) was founded in 2000 in a refurbished school, as a multi-jurisdictional community court following work by New York’s Center for Court Innovation and a complex 6-year planning process including much community consultation. In a troubled neighbourhood combining high crime with low confidence in justice, it aimed to improve neighbourhood safety and the local legitimacy of the justice system without compromising its independence. Accordingly, the focus of both the initiative and of the literature describing it is on the community rehabilitation role of the court, its building, offender programmes and related services. Trial processes have not changed radically and children and young people (CYP) are not discussed separately from adults.
CATEGORISATION A multi-jurisdictional multi-age community court covering criminal, civil and family problems (elsewhere dealt with by separate courts): low-level offending, drugs, juvenile delinquency, domestic violence and landlord-tenant disputes. GATEWAYS Aside from the court and directly-supporting services, the CJC runs wider ‘doing justice’ – i.e. essentially social justice-oriented – activities including community volunteers, youth development and employment programmes. CLIENTELE No statistical analysis provided and CYP not separately discussed. Clientele are people accused of ‘quality of life’ crimes e.g. drug possession, property damage, shoplifting and prostitution as well as domestic violence and landlord-tenant disputes. INVESTIGATION Notwithstanding the ‘community centre’ ethos of the courthouse as a whole, court proceedings are kept independent of community influence. A single judge deals with cases. Every defendant has a lawyer and guilt and innocence are determined by adversarial process. No separate details are given about CYP cases.
RESPONSES Responses to offending are designed as part of the wider community rehabilitation and safety programme. Convicted low-level offenders receive community work e.g. tackling graffiti and broken windows; and others with more deep-seated problems job training or programmes with on-site drugs teams and social services. No separate detail is given on CYP. Prosecutors, defence lawyers and court staff actively collaborate to design individualised treatment or training programmes for defendants. Responses include custody, for offenders posing risks to public safety, though less often than before (see Outcomes).
GROUPS/GANGS No detail given
COMPREHENSION The detail of the proceedings is not discussed, but the whole building and courtroom are designed to be user-friendly for defendants and community users. In the courtroom the bench is down at the same level as defendants. TIME No details given
CONTROL OVER A number of on-site community services are dedicated to court needs as well as to community SERVICES rehabilitation work with the area’s residents. The court’s menu includes ‘mandating’ social services to work with individual offenders’; usage is substantial (see Case Numbers below) but no details are given about balancing supply/demand /control/accountability.
MONITORING AND Unlike in normal US courts, the presiding judge actively monitors individuals post-sentence, including REACTING requiring them to appear regularly before the bench to report on their progress with treatment and other aspects of court orders.
CASE NUMBERS Overall numbers are not given, but from June 2000 to January 2004 5,600 defendants were mandated to AND COSTS social services and 300 sentenced to at least one day of community service. No figures are given on costs or cost-efficiency.
OUTCOMES No figures are give on recidivism; efforts were being made to measure The report authors point, with a handful of supporting statistics, to better sentencing decisions –more related to local circumstances and knowledge of offending patterns/ locations; changed sentencing practice – more reliance on community restitution and social services, less on custody; 75% compliance with ‘intermediate sentences’, 50% better than the national level; lower measured level of fear in the community (e.g. 42% drop in unwillingness to enter parks or subways at night); and much greater community approval for the local justice system (in a 2001 survey 68% of residents were positive about the Center c.f. 10% positive about courts before the CJC’s opening)
RECORDS No details given
POSITIVES/ As part of community linkage and confidence-building the Center also has a Community Advisory Board NEGATIVES to advise on programmes to run e.g. substance misuse; runs regular evaluation of community safety and confidence; uses community involvement as well as offender programmes to tackle physical environment problems; organises (non-vigilante) community patrols; pays community volunteers to support restitution work; and serves the local public with drop-in services e.g. on drugs, job-finding and child care. . CHANGES No significant changes between 2000 opening and the 2004 report.
CONTEXT Red Hook is a low-income, multi-ethnic but mainly African American and Latino, 11,000–strong, relatively isolated Brooklyn neighbourhood with a reputation for drugs, crime and disorder and a history of disputes internally and with public authorities over planning issues. A killing of a headteacher inspired the initiative. To boost local confidence during the long planning and design process, a 50-resident funded community service programme tackled issues like disrepair and improving the physical security of buildings. Aside from community-safety oriented sanctions against individuals, key parts of the overall programme are good links between the Centre and the citizenry and the court’s siting in a refurbished prominent ‘eyesore’ building .
REFERENCES From the Benches and Trenches – Justice in Red Hook. Greg Berman and Aubrey Fox. US Justice System Journal 90 2005 MODEL US DRUG COURTS
BACKGROUND This summary is based mainly on Rempel et al’s study of 6 New York State adult drug courts, with some data from 5 more, combining drug treatment with continuing judicial supervision and rewards and sanctions and aiming to break the cycle of addiction, crime and repeat incarceration. The potential relevance of drug courts to the YCC’s work lies in how the courts stay in close touch with cases long beyond the initial court hearing. The value of Rempel et al’s analysis lies in its large multi-area samples and matched control groups. There are juvenile drug courts but not similarly evaluated. However, drugs courts are criticised not only for weakening adversarial justice but also for helping least, indeed penalising, the most addicted and most socially disadvantaged. (See Positives /Negatives) CATEGORISATION A criminal court specialising in drug-related offences, deferring sentences to incentivise cooperation and closely supervising offenders’ progress throughout their programmes.
GATEWAYS Defendants reach the drug court through ‘many sources and at various points of case handling’ (detail not given), but are subject to a common ‘paper’ eligibility screening by an assistant district attorney, conventional court clerk and/or drug court coordinator on the basis of current case information and criminal history.
SIDEWAYS No information. REFERRALS CLIENTELE Details vary, but typically these courts take people who have a drug problem but are not addicted; are accused of use, possession, sales or drug-related property offences; but are non-violent and have limited (average 2) previous convictions. The median ages range from 25 to 30, with drug use having started at a median age of 15. 22% are employed; the rest are on benefits or informal or undeclared means of support.
INVESTIGATION Key features of initial case handling are : Early identification of suitable defendants and placements. Court officers and/or prosecution staff aim to identify eligible accused persons soon after their arrest (or probation violation where applicable) and rapidly identify a suitable treatment place ( by implication, before or at the time of the court hearing). Court hearing. Drug courts employ a non-adversarial process in the courtroom (detail not given) Defendants can be dealt with either before or after plea. Either way they go on a drugs programme without being sentenced, that decision being taken on successful completion of or failure to complete the programme. If they had not originally been required to enter a plea and fail on or persistently fail to comply with the programme, hence stand to be sentenced, they are then able to argue their innocence in front of the drug court judge or another (unspecified) judge.
RESPONSES Key features of these courts’ responses to drugs offences are Community-based drug treatment, in residential or outpatient facilities for between 6 and 18 months. Some participants also have to obtain a specified educational qualification or carry out community service. Generally courts also require a post-programme plan covering e.g. attendance at support groups, individual therapy, an alumni group and/or individual plans for how to deal with “trigger” events and contact with former drugs associates. Incentives and disincentives. Defendants receive a positive incentive to graduate (case dismissal or charge reduction) and a disincentive to fail (threat of custody). See Monitoring and Reacting below. Court and clinical staff work as a team throughout to assist each participant’s recovery.
GROUPS/GANGS Not discussed, but the courts clearly focus on participants as people accused of specific crimes.
COMPREHENSION Not discussed, except that judges talk directly with offenders and build up relationships by staying with the same cases throughout the programmes and monitoring/report-back processes.
TIME Cases are dealt with more quickly, up to the initial decision point, in drug courts, but allowing for oversight during the drugs programmes cases take much longer and more active courtroom and support staff time overall. Figures are not given.
CONTROL OVER Several different models operate, with varying degrees of court control over resources: SERVICES Direct case management, by a team of onsite staff employed by the court and reporting exclusively to its supervisory staff. They administer the initial clinical assessment, decide whether a drug problem exists, recommend a treatment plan, locate an appropriate treatment programme and if necessary recommend subsequent changes to treatment. (Control over/rights of access to treatment programme places are not discussed) Outsourced case management, with case managers similar to the above who are onsite but employed by a generalist local offender monitoring agency. Priority for drug court cases has to be negotiated, but the model offers wider expertise and economies of scale in the use of staff (not quantified in the report). Probation service management, with dedicated local probation service staff supported on clinical matters by county Community Mental Hygiene / Alcohol and Substance Abuse Services covering outpatient programmes; and in-house providers covering supervision and reporting on inpatient programmes. Probation officers offer general expertise and home visits capacity, but inter-agency coordination is necessary. Provider-centred treatment, with the court having only strategic case managers and all regular monitoring, reporting to court and troubleshooting carried out by the different drug treatment programme providers. (By implication, they are contracted to support the court as part of their programmes)
MONITORING AND The drug court model relies on a combination of judicial supervision during community-based drug REACTING treatment, some incentives to cooperate and the threat of probable custody if participants fail the programme. Court supervision encompasses regular drug testing, case manager visits, court appearances with direct interaction with the judge and interim judicial rewards and sanctions (see below). The same judge monitors participants throughout their programme, with the relationship between judge and participant regarded as particularly important in motivating and assisting recovery from drugs. In response to progress during the programme the court administers interim rewards e.g. fewer days of treatment per week and fewer court appearances or sanctions for non-compliance e.g. submitting an essay, sitting in the jury box, community service or a short jail stay. On successful completion of a programme most courts dismiss the criminal charge but an alternative is reduction to a more minor charge. (By implication those not originally required to enter a plea or who pleaded guilty to a more serious charge would then be tried for the lesser offence; but the detail is not discussed.) On failure, custody is the normal penalty – generally up to 1 year but occasionally up to six.
CASE NUMBERS Total court case numbers are not given but the detailed evaluation covered 4100 offenders. AND COSTS As noted under Time below, drug courts take up more active courtroom and court staff time hence cost more but details are not given. OUTCOMES The courts performed markedly better than comparators on: Post-programme recidivism reduced by 32% after one year and 29% after 3 years Lower recidivism persisted years beyond then. However: Recidivism was higher among those with previous convictions and younger adults, in both experimental and control groups.
On important intermediate outcomes: Over 60% of clients stayed on their programmes for a full year, a much higher rate than on other US post- sentence programmes e.g. 3 month community-based treatment 30-60% and one-year therapeutic communities 10-30%. However younger clients did least well: failures were on average 5 years younger than successes. Custody was naturally avoided for drug programme successes but used more than comparators for programme failures. Averaging both groups together, custody was used less in 3 courts, the same in two and more in one.
RECORDS Not discussed.
POSITIVES/ Bowers notes that USA supporters of adversarial justice argue that the testing of guilt and innocence is in NEGATIVES practice submerged by the immediate incentive for drug users to collaborate in programmes, with defence attorneys as virtual bystanders. In effect it is an adversarial model which has been weakened by grafting on inquisitorial and quasi-therapeutic modifications. Bowers himself also argues that, while they may arguably be effective overall, drug courts in practice not only fail to help but indeed excessively penalise the most addicted and socially disadvantaged. Programmes are offered in large numbers to the non-addicted or lightly addicted (eg dealers), the programme organisers having vested interests in high throughputs and high success rates. The statistics show that it is the former who generate the relatively high overall success rates. The most addicted, the youngest (as noted above, who are most likely still to be regular drug users) and most socially excluded have high failure rates and then receive penalties well above what they would have received in ordinary courts. He links this to the mentality of drug users – the most addicted are most likely to succumb to short- term decision-making and excessive optimism. Although Bowers himself does not draw lessons beyond the sphere of drugs interventions, there seems likely to be some read-across to the least mature and socially adjusted child offenders whether involved in drugs or other offending.
CHANGES
CONTEXT
REFERENCES The New York State Adult Drug Court Evaluation: Policies, Participants and Impacts. Rempel et al. Submitted to the New York State Unified Court System and the U.S. Bureau of Justice Assistance, October 2003 Contraindicated Drug Courts. Josh Bowers, 55 UCLA Law. Review 783 2007-2008