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Youth Justice: Focus on other countries

The Children's Hearings system in Scotland uniquely combines welfare and justice for both young people who have offended and those in need of care or protection. Other jurisdictions take different approaches.

England and Wales

Referral Orders are given to most 10 - to 17-year-olds pleading guilty on a first offence, unless the charge is serious enough to warrant a custodial sentence. After appearing in court, the young person is referred to a Youth Offender Panel ( YOP) which considers the best course of action.

A YOP consists of two volunteers recruited directly from the local community, alongside one member of the Youth Offending Team.

The YOP meets with the young person and their parents or guardians to discuss reasons for the offending behaviour and suggest ways forward. The victim is encouraged to attend the meeting to tell the young person how the crime has affected him/her. With everyone in agreement, a contract is compiled to include an element of reparation, either to the victim directly or to the community at large. The contract also includes other elements to tackle the young person's offending behaviour - drugs counselling, anger management or dealing with truancy, for example.

The contract is supervised by the Youth Offending Team and reviewed at regular YOP meetings. The conviction is 'spent' when the order is successfully completed. If the young person fails to comply, the case is sent back to court and a different sentence may be given.

Action Plan Orders provide a short, intensive programme, normally three months, of community-based intervention combining punishment, reparation and rehabilitation. The order lasts three months and is designed to address the specific causes of offending. This community order may be made by the courts when it is considered that to do so will rehabilitate the offender or prevent re-offending.

The Order includes a variety of actions such as working with the young person together with his or her parents; attending a particular course; educational activities; action to ensure school attendance; or reparation either to an individual or to the wider local community.

Supervision Orders are specifically designed for young offenders who require longer periods of supervision. A range of conditions such as drug treatment, residence requirements and specified sessions or activities may be attached for more serious offences. The options also include the ISSP (Intensive Supervision and Surveillance Programme). The young offender is placed under the supervision of a local authority designated in the Order, a probation officer or a member of a Youth Offending Team for a maximum period of three years.

Canada

Youth Justice Committees

Youth Justice Committees are groups of volunteers working in partnership with each province's justice system to deal with young offenders in their communities. The committees allow citizens to work out differences between young offenders, victims and community members. They also provide offenders with an alternative to the formal court process and the possibility of time in custody.

The committees work to resolve legal conflicts through extrajudicial sanctions, community service work, and meetings with victims and community members which involves dealing with first- and second-time offenders who have committed minor offences and have admitted responsibility.

Committees may also have a sentence advisory role. Referrals are received from a youth justice court judge after guilt has been established. The Youth Justice Committee will then meet with the young person and recommend an appropriate sentence. The committee will usually find it appropriate to meet with the young person's parents and/or other significant others, and the victim of the offence.

Youth Justice Committees provide a way to look at the broader picture of what is happening in the young offender's life, including school attendance, school performance and negative peer influence. Involving the victim assists the young offender in understanding the consequences of the offence. After assessing the circumstances, the Youth Justice Committee makes a recommendation to the Youth Court Judge regarding an appropriate sanction.

Committees may also become involved in police diversion, which involves meeting with a young person that police have decided to divert from the youth justice system. The police may refer these young people directly to a Youth Justice Committee for guidance, counselling and/or direction. If the young person fails to comply with the Youth Justice Committee direction, no further action can be taken.

Youth Justice Committees are guided by the following principles:

• young people should be held accountable for their criminal behaviour
• there must be regard for the rights and freedoms of young people and victims
• the least intrusive alternatives and restrictions of a young person's freedom must be sought while maintaining the protection of the community
• the community has a right and responsibility to participate in the youth justice system.

A Youth Justice Committee can provide the opportunity for citizens to be directly involved in reconciling the differences between the young offender, victims and community members.

New Zealand

Family Group Conferences and the Youth Courts

The Family Group Conference is a key diversionary mechanism used for 14 - to 17-year-old offenders, and is convened and facilitated by a statutory official known as a Youth Justice Coordinator.

When a child/young person is charged with an offence, or arrested, the case must be referred to the Youth Justice Coordinator to arrange a Family Group Conference. The Family Group Conference is authorised to find alternatives to prosecution in dealing with an offender who admits guilt.

Families are entitled to discuss the situation in private and to arrive at decisions and plans which must then be negotiated with the officials present. When a Family Group Conference agrees on an alternative measure, the Youth Justice Coordinator is committed to trying to persuade the prosecuting authority to accept that decision.

When a Family Group Conference does not agree on an alternative, the matter proceeds to court for adjudication. When the Family Group Conference is unable to prevent a prosecution, the Conference has a role in advising courts on appropriate sanctions for the young offender.

There are statutory time frames within which Family Group Conferences must be held. These range from within seven days for a young person who is held in custody to within 21 days for a young person not in custody.

The Youth Court cannot make any orders unless a Family Group Conference has been held.

Activity 1

Extract from the SCRA Annual Report 2002-03

Study the information in the table below and answer the questions which follow.

1. What conclusions can be drawn from the table about levels and patterns of alleged grounds for referral to the Reporter in the period 2000-2003?

2. In what ways could the information be usefully used by the Scottish Executive?

2. Children referred to the Reporter on offence grounds

The purpose of the Children's Hearings System is to decide what measures of supervision are necessary to address the behaviour and welfare of children. The conditions on which decisions are made are known as the grounds for referral.

Table 2 Grounds for referral to the Reporter

Note:
*The term 'Schedule 1 offence' refers to any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995
**A child who is accommodated by a local authority or who is subject to a parental responsibilities order, whose behaviour is such that special measures are necessary for his/her adequate provision in his/her interests or in the interest of others.
***This ground is only applicable to children who are at least 8 years old, which is the age of criminal responsibility in Scotland.

The main changes in the numbers of grounds referred over the 3-year period 2000-01 to 2002-03, were:

• 47% increase in 'member of the same household as a victim of a Schedule 1 offence'
• 46% increase in 'misuse of alcohol or drugs'
• 41% increase in 'victim of a Schedule 1 offence'
• 39% increase in 'beyond the control of any relevant person'
• 38% increase in 'lack of parental care'

Activity 2

Extract from the SCRA Annual Report 2002-03

Study the information in the table below and answer the questions which follow.

1. What conclusions can be drawn about youth offending in Scotland?

2. Why might the peak age for offending be 14 to 15 years old?

3. How might the statistics be used to demonstrate to the general public that there is no dramatic increase in the levels of youth offending?

3. Children referred to the Reporter on offence grounds

Table 3a Number of alleged offences per child

Table 3b Age distribution of children referred on offence grounds

14,404 children aged 8 years or older were referred to the Reporter on offence grounds in 2002-03 for 45,413 alleged offences. Girls were referred for 8,495 of these alleged offences (an average of 2.6 offences per girl) and boys for the 36,891 alleged offences (3.3 offences per boy).

The pattern of offence referrals has remained relatively constant over the history of the Children's Hearings system, with the number of children referred on offence grounds remaining relatively constant. This has varied between a 'high' of 15,711 children in 1985 to a 'low' of 12,319 children in 1993. The proportion of Scottish children referred to the Reporter on offence grounds has also remained constant. For example, in 1992, 4.2% of boys and 1.0% of girls were referred to the Reporter on offence grounds. Ten years later in 2002-03, 4.3% of boys and 1.3% of girls were referred.

Activity 3

SAFEGUARDER, LEGAL REPRESENTATIVE OR ANOTHER OPTION? - YOU DECIDE

1. Read the definitions of the roles of Safeguarder and Legal Representatives on pages 105 -107.

2. Read through the scenarios putting yourself in the role of a panel member and decide whether the child/young person needs a Legal Representative or a Safeguarder. Consider also if there is another option open to you.

3. Note down the reason(s) for your choice.

Graham

Graham is almost 14 and has been involved in the Hearings system for some time. He was initially referred for being beyond the control of his parents and was made the subject of a Supervision Requirement. A Hearing has been arranged as there are some new grounds for referral.

He has committed a series of offences while in the company of older boys. The panel members are aware from the social worker's report and the school report that there are indications that Graham has learning difficulties, although he has never been formally assessed as his parents have refused consent. He has had ongoing problems of truanting from school and poor achievement.

At the Hearing, when the grounds for referral are explained, Graham looks to his parents for reassurance as to what to say. His parents clearly want the offences to be dealt with there and then and tell him to accept the grounds for the referral.

Annie

Annie is eight and has been subject to a Supervision Requirement for the past 11 months. There is a condition of residence with foster carers. At this Review Hearing, the report from the social worker and the school indicate that she is making excellent progress in all areas of her life. Annie is clearly benefiting from the consistency of care that she is receiving from the foster carers.

Although there is a condition of supervised contact with both parents, neither has made any real attempt to visit Annie. They either do not appear or cancel at short notice. The social work report also highlights that their lifestyle has not changed and this was the major factor that led to Annie's referral in the first place - she suffered a lack of parental care due to her parents' drug misuse.

The social worker is suggesting in the reports that contact with her parents should now be terminated and when this is raised in the Hearing her parents become very angry. The recommendation in the social worker's report is also that Annie remains in foster care and that the long-term plan for her should be adoption.

Leanne

Leanne is 14 and lives with her mother. Leanne was placed on a Supervision Requirement six months ago when she was referred for non-attendance at school and breach of the peace. Both the local authority and her mother have asked for a Review Hearing.It appears Leanne is seriously outwith parental control. She gets up late, refuses to go to school, stays out late - sometimes overnight - she looks pale and unkempt and there are fears that she is misusing alcohol and perhaps drugs. She also refuses to say where she stays and with whom, and there are suggestions that she may be involved in prostitution.

Leanne is verbally abusive to adults and occasionally physically abusive. She recently lost her temper at home when her mother attempted to stop her going out at 10pm, and wrecked her bedroom. Following this, Leanne was admitted into a Young People's Unit in her local area on a voluntary basis, to put some space between her and her mum and to allow professionals to work with her, but her behaviour has not changed. Staff at the Young People's Unit are also having difficulty controlling Leanne and keeping her safe.

Iain

Iain is 13 and has been under supervision for the past three years - he was referred originally on offence grounds. He is regarded in his home community as a 'one-boy crimewave'. Recently, he was assaulted by an adult, who alleged that Iain was responsible for vandalising his car and spraying paint on the front of his house. Iain's whole family is now being victimised because of his reputation. Iain feels that he is the victim rather than the wrongdoer. Despite all of the problems that he has caused, his family love him.

Given the recent assault on Iain, the social work department has requested a Review Hearing and its recommendation is that Iain should be removed from the community for his own safety. A residential school some 100 miles from home has been identified and, in the social worker's and his current school's view, this would meet both Iain's care and educational needs. However, this placement would cause considerable difficulties in Iain keeping in contact with his family. His father is disabled following an accident at work, there are three younger siblings and there would be additional financial pressures on a family already struggling to make ends meet.

Iain's family accepts that he needs help and is not against a residential placement but want him placed nearer home so that they can see him. Iain does not appear to understand the seriousness of the situation or the recommendation. At the Hearing he says little and just wants to go home to his pals.

Children's Hearings Training Unit, University of Edinburgh

SAFEGUARDER, LEGAL REPRESENTATIVE OR ANOTHER OPTION? - YOU DECIDE

ANSWER SHEET

Graham

Graham clearly does not understand the grounds and importantly, as this is a first referral on offence grounds, accepting them would mean that the Rehabilitation of Offenders Act provisions, including Exceptions Orders, apply.

Send to the Sheriff for proof.

Annie

Appoint a Safeguarder whose brief would be to consider the effect of current contact arrangements on Annie.

Leanne

Leanne clearly meets the criteria for secure accommodation and so a Legal Representative must be appointed. As this is an emergency Hearing and it may not be possible to get a Legal Representative immediately, the Hearing can issue a warrant (an emergency procedure), with a condition of secure accommodation and appoint a Legal Representative to be present at the Review Hearing which should be held as soon as possible.

Iain

Appoint a Safeguarder to consider where Iain's best interests lie, what the impact of being so far away would have on him and the family, and to decide if the residential school which has been recommended is the only option.

Children's Hearings Training Unit, University of Edinburgh

Essay Questions

• The case for continuing investment in the Children's Hearings system is strong. Discuss.
• Critically analyse the way in which the Children's Hearings system deals with young offenders in comparison to other countries.
• Using examples, examine the role of Safeguarders and Legal Representatives in the Children's Hearings system.
• Identify the key challenges facing the Children's Hearings system in the 21st century.

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