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'Punish and Be Damned'

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'Punish and Be Damned' LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE ‘PUNISH AND BE DAMNED’ Judicial Discretion in Juvenile Courts: The Welfare and Punishment Dichotomy in England / Wales and Scotland Penelope Lynne Ravenscroft A thesis submitted to the Department of Social Policy of the London School of Economics for the Degree of Doctor of Philosophy London - May 2011 2 DECLARATION I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent of the author. I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party. 3 ABSTRACT Judicial discretion is at the heart of a humane criminal justice system, but the latitude exercisable in the UK juvenile courts allowed constructive treatment at one end of the spectrum and penal custody the other. Official acknowledgement of the different culpability of adult and juvenile offenders really began in the middle of the 19th century, and Parliament finally made provision early in the 20th century for this ‘welfare principle’, that reform and welfare rather than punishment were to guide judicial discretion in the decisions and conduct of juvenile criminal courts. This thesis offers an explanation for the varying emphasis given to this principle in England/Wales and Scotland, concentrating on the last 40 years of the 20th century. The lack of implementation of earlier reforms was confronted in two major reports, chaired by Kilbrandon in Scotland and Longford in England and Wales. Although they came to similar conclusions about the causes and the remedies for juvenile delinquency, and their subsequent legislation shared the same general philosophy, the implementation took diametrically different routes in the two jurisdictions. It is argued that deep-seated cultural and historical differences played a significant role both in legislative reforms and their application, coupled in Scotland with a conjunction of agency and political pragmatism that produced radical reforms. Significant factors implicated in the failure of the English reforms were political ambivalence towards the legislation; judicial/magisterial resistance or lack of training, particularly on child development; the absence of accountability in the magistracy; and the influence exercised by the Magistrates' Association. The research draws on archival papers and research literature, supplemented by interviews with key people. It has sought to find the origin of some influential ideas and explain their acceptance or rejection by the lay justices, through their exercise of judicial discretion. As there were further Acts related to juvenile defendants in both jurisdictions in the 1990s, the research was concluded with a consideration of their implementation. 4 TABLE OF CONTENTS DECLARATION ......................................................................................................... 2 ABSTRACT ................................................................................................................ 3 TABLE OF CONTENTS ............................................................................................ 4 GLOSSARY ................................................................................................................ 7 ACRONYMS/ ABBREVIATIONS ............................................................................ 9 ACKNOWLEDGEMENTS ....................................................................................... 11 CHAPTER 1 .............................................................................................................. 12 INTRODUCTION AND METHODOLOGY ........................................................... 12 1.1 Introduction .......................................................................................................... 12 1.2 Methodology ........................................................................................................ 14 1.3 Plan of Thesis ...................................................................................................... 20 CHAPTER 2 .............................................................................................................. 21 THE CONTEXTUAL FRAMEWORK AND DECISION-MAKING ...................... 21 2.1 The Socio-Political and Legal Context ................................................................ 21 2.2 Official Responses to Juvenile Crime .................................................................. 29 2.3 Decision Makers .................................................................................................. 39 2.4 Conclusion ........................................................................................................... 58 CHAPTER 3 .............................................................................................................. 59 LEGISLATION AND PRACTICE: PRE 1900 TO 1963 ......................................... 59 3.1 Before the 20th Century ........................................................................................ 60 3.2 The First Decade of the 20th Century ................................................................... 62 3.3 The 1920s, Molony 1927 and Morton 1928 ........................................................ 65 3.4 The 1930s -Children and Young Persons Acts 1932/33 and 1937 ...................... 69 3.5 The 1940s – Criminal Justice and Children Acts 1948 & 1949 and Justices of the Peace Act 1949 .......................................................................................................... 73 3.6 The 1950s, Ingleby, and 1961 1963 Acts ............................................................ 79 3.7 Conclusion ........................................................................................................... 90 CHAPTER 4 .............................................................................................................. 93 KILBRANDON and LONGFORD – THE 1960s ..................................................... 93 4.1 Kilbrandon ........................................................................................................... 96 4.2 Longford ............................................................................................................ 110 4.3 Conclusion ......................................................................................................... 129 5 CHAPTER 5 ............................................................................................................. 132 THE SOCIAL WORK (SCOTLAND) BILL 1968 AND THE CHILDREN AND YOUNG PERSONS BILL 1969 .............................................................................. 132 5.1 Social Work (Scotland) Bill 1968 ...................................................................... 134 5.2 Children and Young Persons Bill 1969 .............................................................. 144 5.3 Conclusion .......................................................................................................... 160 CHAPTER 6 ............................................................................................................. 163 THE CHILDREN’S HEARINGS (SCOTLAND) ................................................... 163 6.1 Implementation and Practice – The First Decade .............................................. 165 6.2 Review and Reform in the 1980s ....................................................................... 189 6.3 Review and Reform in the 1990s ....................................................................... 194 6.4 Conclusion .......................................................................................................... 203 CHAPTER 7 ............................................................................................................. 207 ENGLAND/WALES – JUVENILE COURTS AND THE CHILDREN AND YOUNG PERSONS ACT 1969 ............................................................................... 207 7.1 The Juvenile Courts: the Law and Implementation in the 1970s ....................... 210 7.2 The 1980s: Political Surprises ............................................................................ 240 7.3 The 1990s: Moral Panics to Revolution? .......................................................... 244 7.4 Conclusion .......................................................................................................... 252 CHAPTER 8 ............................................................................................................. 256 CONCLUSIONS: KEY FINDINGS AND REFLECTIONS ON THEORY AND POLICY ................................................................................................................... 256 8.1 Key Findings ...................................................................................................... 258 8.2 Limits of Methodology ....................................................................................... 270 8.3 Challenges and Implications for Policy ............................................................. 272 REFERENCES ........................................................................................................
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