In the last two decades the attitude of many people towards youngsters appears to have become one of disdain and fear, this is due to an all too common perception of increasing youth crime, anti-social behaviour and the effect of high profile cases such as the killing of James Bulger in 1993. In 1998 The British Crime Survey found that two thirds of people questioned believed that young people were becoming increasingly involved in crime between 1995 and 1997, however, official statistics showed that actual numbers were remaining constant, or declining. Elliot et al, (2005) In this assignment I aim to explore the legal system with regards to young people and how the influence of both the media and globalisation has shaped current thinking and legislation. Prior to the Crime and Disorder Act of 1998 there was a presumption that a child aged between 10 and 14 could not be criminally liable, this was known as doli incapax, however, this presumption could be rebutted by the prosecution if it could be evidenced that the child knew right from wrong. Following the Act children aged 10 and above were treated much the same as adults (a move condemned by the United Nations Committee on the Rights of The Child)... British children are almost alone in Europe in being regarded as criminals at the age of 10. Elliot et al, (2005, p. 391) However, there is legislation that alters rules applying to children; s.44 of the Children and Young Persons Act of 1933 imposes a duty on the courts to "have regard to the welfare of minors" when dealing with their trial and sentence. The Children and Young Persons Act 1963, the Children and Young Persons Act 1969, and the Children Act of 1989 have also shaped the legal framework and the obligations of the state and local authorities relating to the care of children in the criminal justice system. Giving recognition to the vulnerability of children there are other rules that should apply, Code C of the Police and Criminal Evidence Act 1984 (PACE) provides measures that aim to deal with children more appropriately, for example, young people should not be arrested on school premises, should not be held in a cell and if under age 17 should always have an appropriate adult present. From experience I am aware that these rules are frequently not adhered to, often to the detriment of the young people. At the Police station there are options available to prevent the matter proceeding to court, if the offender admits to a crime the Police can administer a Police Reprimand, a Final Warning and with effect from 2009 (following the introduction of the Criminal Justice and Immigration Act 2008), a Youth Conditional Caution. If the young person is 'charged' the responsibility to continue with court proceedings falls to the Crown Prosecution Service, in this instance the prosecutor must be satisfied that there is sufficient evidence to secure a conviction and that it is in the public interest. Code for Crown Prosecutors issued under the Prosecution of Offenders Act (1985 s10).
There are three different categories of criminal offence, summary offences, indictable offences and those triable either way. Summary offences are the most minor of crimes and over 95% of cases are dealt with in the magistrates' court, (for those under 18, a youth court). Only in limited circumstances can these offences be sent to Crown Court to be dealt with, for instance when a youth is charged with an adult with more serious matters or when they themselves have other, more serious charges. Indictable offences are more serious and can only be dealt with at Crown Court; they include murder, arson, rape, robbery, and firearms offences and under sections 90, 91 and 92 of the Powers of Criminal Courts (Sentencing) Act 2000 young people can receive sentences that are available for adults. In its most recent report on the United Kingdom the United Nations Committee on the Rights of the Child (2002) was critical of the provisions that allowed children to be processed in adult courts and recommended that the Government takes steps to ensure that 'no child can be tried as an adult, irrespective of the circumstances, or the gravity of his / her offence'. Triable either way offences include theft, criminal damage and burglary and can be tried in either the magistrate's court or the Crown Court. The defendant can insist on a trial by jury, otherwise the decision on jurisdiction is made by the magistrates' Elliot et al, (2005, p. 390). In making this decision they have to take into account the seriousness of the offence and whether they have sufficient sentencing powers to deal with it. Magistrates' have the power to lock up youths for a maximum of two years. Youth courts have specially trained magistrates' for dealing with juveniles; they have no legal training and are reliant on the court clerk who is a trained solicitor. Each youth court bench normally consists of not more than three justices and should include a man and a woman. A Stipendiary Magistrate is legally qualified and normally sits alone. The Criminal Justice Act 1991 introduced 'pre-sentence reports' (PSRs) these are normally requested by the court and are prepared by a member of the Youth Offending Service. The report provides the court with an assessment of the offence, the offender's background and other social, educational and family circumstances. Having taken into account the likelihood of further offending and the perceived risk of harm to self and the community, the report concludes with a sentence proposal. There are often occasions when young people are sentenced without reports, sometimes to lengthy custodial sentences, however, the introduction of the Criminal Justice and Immigration Act 2008 provides that...a pre-sentence report for a young person aged under 18 must be made in writing where the court is considering custody as an appropriate sentence for the offence(s). Ministry of Justice (2008) Currently there is a vast array of sentencing options available to the youth courts including the Supervision Order, Action Plan Order, Attendance Centre Order and Reparation Order as well as those which do not require supervision by YOT practitioners such as a fine or conditional discharge
Youth Rehabilitation Order
With the introduction Criminal Justice and Immigration Act 2008 the new Youth Rehabilitation Order (YRO) will combine existing community sentences into one generic sentence using a menu of interventions or 'requirements' to tackle offending behaviour. The new framework including the 'Scaled Approach' see Youth Justice Board (2009) purports to bring the purpose of sentencing in line with the principal aim of the youth justice system 'the prevention of offending by young people', and gives equal weight to other factors including welfare. Although not available until autumn 2009 the YRO is already being criticised, the Standing Committee for Youth Justice (SCYJ) has voiced concerns that...there is potential for 'up-tariffing' which may occur as an unintended consequence of courts trying to use the YRO. On a positive note the Commissioner for Human Rights of the Council of Europe has welcomed the YRO and suggests it to be...an acknowledgement by the UK authorities of the principle of detention as a last resort Hammarberg (2008), The diversity of permissible sentencing objectives and priorities in youth justice, including regard for welfare, prevention of offending and proportionate punishment, underpins the discretion and independence of magistrates and Judges alike. However, there is no doubt that these objectives have been greatly influenced by the media...societies appear to be subject, every now and then, to episodes of moral panic. A condition, episode or group of persons emerges to become defined as a threat to societal values and interest; its nature is presented in a stylised and stereotypical fashion by the mass media... Cohen (1980, p. 9). The early 1990's saw a marked change in the mood of the public and the media which dramatically influenced the rhetoric and policy of the then Conservative government removing all chance of raising the age of criminal responsibility to 14, as in most other European countries. Significantly the media denigrated the police and the courts for being unable to deal with youth crime and headlines such as 'One Boy Crime Wave' were first seen. Drawing on media stereotypes, there began a developing moral panic around what were to become known as persistent young offenders, muggers, and later 'ASBO' families. The moral panic concept is not without criticism, as a teenager of the 1970's I remember youth violence being rife, football hooliganism, 'Skinheads' versus 'Mods', localised gang fights, all were making the news, and as Waddington (1986) in Garland (2001,p.61) argues 'the rates of violent crime, typically muggings in the 1970's were in fact rising sharply as the media suggested'. In considering the role of the media in reporting crime Chibnall (1977) suggests five 'rules of relevancy' which denote whether a crime story is worthy of reporting: 1.Visible and spectacular acts 2.Physical or sexual violence 3.Graphic representation 4.Notions of individual pathology 5.It must be capable of leading to demands for a firm deterrent and retributive response.
No better example can be that of the abduction and killing of James Bulger in 1993 by two 10 year old boys. The CCTV footage shown on rolling news reports and the young age of the killers ensured that the story would run and run. The media responded by placing full responsibility on the perpetrators, labelled them as 'evil' and ...'as a result, any number of alternative' readings' based on welfare, health, psychology, victimology, psychiatry, behavioural science or economics were subsumed by, or were ruled out in favour of the law' Muncie, (2004, p.5). When Michael Howard became Home Secretary in May 1993 he was vigorous in embracing 'populist punitiveness' and announced a package of measures that involved...'a reassertion of the central position of custody ...whose primary aim was deterrence' Newburn (2007, p.730) With the introduction of the Criminal Justice and Public Order Act 1994, the maximum sentence for 15 to 17 year olds in a Young Offenders Institute doubled to two years, the Act also introduced 'Secure Training Orders' for those aged 12 to 14. The predictable consequence was a rise in the number of 15-17 year olds given custodial sentences and saw a rise of almost four-fifths (79%) between 1992 and 1998. Newburn (2007, p. 730) The Labour Party has described its approach to young offenders as being one of 'zero tolerance and one of the main forms of implementation is through Crime and Disorder Act (1998)...'the Act not only overhauled the youth justice system, but also introduced a raft of new criminal measures including parenting orders, child safety orders and most controversially... Anti Social Behaviour Orders'. Newburn (2007, p. 732). Failing to comply with an ASBO is a criminal matter, triable in either a Magistrate's or Crown Court and carrying a 6 month or 5 years custodial sentence respectively. This has led to much criticism Gardner et al (1998) in Newburn (2007,p.732) makes the observation...'that a government which purports to be interested in tackling social exclusion at the same time promotes a legislative measure destined to create a whole new breed of outcasts'
According to the Youth Justice Board the number of asylum seekers under the age of 18 rose from 1,600 applicants in 1997 to over 13,000 in 2002, with nearly 6,000 being unaccompanied asylum-seeking children (UASC)... many of these youngsters will have experienced traumatic events resulting in emotional and mental health problems. NACRO (2006, p.7) Under the Framework for the Assessment of Children in Need and their Families (2000) local authorities have a duty to make an assessment of their needs and ... should provide the same quality of services as for any child presenting as being 'in need' HM Government (2006, p. 211). Asylum and immigration is now linked with concerns about crime and security requiring new responses from the criminal justice system, headlines such as 'The Human Tide We Can't Control', Telegraph (2003) and '£2bn bill for flood of asylum seekers', Telegraph (2003) are emotive and stereotypical, in my opinion they also instil new or revisited insecurities and moral panic. Youth Offending Services are increasingly dealing with young asylum seekers that come into conflict with the law, practitioners are encountering many problems, language barriers, confusion around young people's status and defining their age. Age is important as it has a direct bearing on issues such as accommodation, education, and in determining the sentences available to courts. There is no doubt that some offenders have such dire welfare needs that courts are being led to consider lengthy community sentences for asylum seekers, even for minor offences committed to fund basic subsistence. Youth Offending Teams should work with courts to ensure that these young people are not inappropriately "sentenced to welfare" and the issue of race is one that needs much consideration. In order to achieve this pre-sentence report authors should liaise closely with relevant agencies such as the Police, Social Services, Immigration and Nationality Directorate (IND) and the National Asylum Support Service...'where discrimination, whether direct - perhaps as a result of provocation - or indirect - perhaps as a consequence of structural inequality - has contributed to the offending behaviour, it should not be ignored, but such issues must be handled with care'. NACRO (2005, P. 6-7) Under the Immigration Act 1971, youngsters aged 17 and over who are convicted of offences can be deported... in practice the IND normally considers deportation on a court recommendation or in cases where a 12 month (or longer) custodial sentence is imposed. NACRO (2006, p.7) If a court is considering this as an option it must give clear reasons, taking into account previous convictions and risk of further offending, importantly, people may not be deported unless a country is able and willing to accept them. Deportation of this age group is rare; however, those who reach 18 whilst in custody would be more likely to be considered for deportation and YOT practitioners need to be aware of and plan for this possibility.
Children Act 1989
The Children Act 1989 was introduced on the back of a series of investigations into the deaths of three children in the 1980's: Jasmine Beckford, Kimberley Carlile and Tyra Henry. The inquiries highlighted the failures of relevant agencies to work together and were particularly damning of Social Services lack of intervention. The Act was described by the then Lord Chancellor as..."the most comprehensive and far reaching reform of child care law which has come before Parliament in living memory", he went on... "It is comprehensive and integrates almost all the law relating to children". Lord Mackay (1998) The 'guiding principle' of the Act is the belief that parents are responsible for looking after their children, however, it also provided guidance and regulations on Local Authorities to investigate allegations that a child could be suffering what the law refers to as 'significant harm'. The Act also introduced the concept of 'likely' significant harm into the threshold of care orders. Child protection appears to be prone to serious failures; the murder of Victoria Climbié in 2000 by her guardians caused major public and media outrage. The inquiry that followed produced major changes in child protection and led to the formation of the Every Child Matters initiative, now all relevant agencies had a 'duty to co-operate'. Another consequence of the inquiry saw the introduction of the Children Act 2004 and the requirement that local authorities set up Local Safeguarding Boards, importantly... the new duty on agencies to make arrangements to safeguard and promote the welfare of children. HM Government (2006, p.33) Investigating allegations of child abuse can bring social workers into contact with families that are sometimes hostile and it is often difficult to determine the truth. In our case study of Shane this does not appear to be a problem. His mother presents as a victim of Shane's behaviour and appears to be seeking help. However there is background evidence to suggest that Shane suffered both neglect and emotional abuse at the hands of his mother...neglect can include failing to provide a child with adequate food, shelter or clothing or failing to protect a child from harm or danger or failure to ensure access to appropriate medical care or treatment. City of York Safeguarding Children Board (2009). One of the main principles of the Children Act 1989 states that wherever possible, children should be brought up and cared for within their own families and it is important to realise that for children in the care of the local authority their parents retain parental responsibility; either: ? Sharing it with the local authority, in the case of those on Care Order; or ? Entirely, in the case of those 'accommodated' under Section 20. Care Orders can last until a young person is 18 years old, in Shane's case the court could have made an Order under Section 31(1) (a) of the Children Act if it had been satisfied that he had suffered, or was likely to have suffered significant harm attributable to his mother. The Order could also have been made if the court had established that Shane was beyond his mother's control, as she claimed. However, Shane is not subject to a Care Order but is a looked after child (LAC) under the provision of Section 20 of the Children Act, in this case there would have been no court proceedings but the Local Authority has a duty to accommodate him as he is designated to be a child in need. Children who are defined as being 'in need', under s17 of the Children Act 1989, are those whose vulnerability is such that they are 'unlikely to reach or maintain a satisfactory level of health or development, or their health and development will be significantly impaired, without the provision of services' HM Government (2006, p.35) If Shane continues to be a looked after child certain conditions will apply when he reaches the age of 16. Section 19b (2) of the Children (Leaving Care) Act 2000 would require that as an "Eligible Child" the Local Authority's 16 + Team have a duty to provide Shane with a 'Pathway Plan' the purpose of which is to aid his transition to independent living. Shane would be allocated a Young Person's Adviser whose chief role is to co-ordinate the provision and support in order to meet his needs. This would include maintaining contact with his family, holding regular reviews and offering practical skills necessary for independent living. Under the Housing Act 1996 (amended by the Homelessness Act 2002) accommodation should be provided to young people who are deemed to be priority needs cases. As long as Shane retains his looked after status he will be provided for under the Children (Leaving Care) Act 2000 as he is the responsibility of the local authority. Added to this, Section 17 of the Crime and Disorder Act requires all local authorities to be compatible with community safety and crime reduction strategies...'given that there are proven links between homelessness and offending, it is important that local Supporting People teams and housing authorities ensure their services are compatible with those strategies and take into account the complex needs of offenders'. Youth Justice Board (2008). Importantly local authorities cannot avoid providing services, where criteria are met, under the Children Act 1989; however, from experience I am aware that leaving care teams will attempt to place 'difficult' children in bed and breakfast or hotel accommodation...'some local authorities have been found wanting with regard to the proper application of the law in meeting the needs of children and young people... This has amounted to 'side stepping' duties and responsibilities' NACRO (2008, p.1) To avoid the risk of him becoming homeless I would ensure that the YOT's accommodation officer is fully aware of Shane's circumstances in order that suitable provision and support be made available. The YOT team I work for has designated housing association support workers who are expert in the area of both accommodation and the benefits system. As a looked after child Shane's access to benefits will be restricted as the Local Authority will be his source of income, however, if he attends full time further education he may qualify for education maintenance allowance at the maximum rate of £30. If I were supervising Shane I would also encourage him to claim disability living allowance due to his Attention Deficit Hyperactivity Disorder (ADHD) and ensure he receives a leaving care grant when appropriate.
The Mental Health Act(2007)
The Mental Health Act (2007) gave clarification to defining mental illness by making amendments to section 1 of the 1983 Act..."mental disorder" means any disorder or disability of the mind" OPSI, (2009) Confirmation that Shane suffers from ADHD may go some way to explaining some of the behaviours he presents with; people with ADHD are much more likely to have related conditions such as depression or anxiety, they may also have learning and conduct disorders and suffer antisocial personality disorder... The disorder is manifested by a pattern of irresponsible and antisocial behaviour as indicated by academic failure... illegal activities, recklessness, and impulsive behaviour (Source: MedTerms™ Medical Dictionary ) Complications that might arise from having ADHD can include drug abuse and it is concerning that Shane uses cannabis, this could compound his mental health problems in the future...'substance misuse disorders are associated with mood disorders, including major depression and elevated levels of psychopathy' Youth Justice Board (2008, p11) Through previous experience of working in children's homes I am aware that children in care often make superficial cuts to their arms. For some children this can be symbolic, denoting affiliation and initiation into care. For some youngsters it can be indicative of stress, fear, shame and loss. In Shane's case I would be concerned that he falls into the latter group, cuts to the inner thighs are out of sight and would likely be done in private (no bravado or badge of honour here). If I were to supervise Shane or be asked to prepare a pre-sentence report I would ensure that he receives a comprehensive mental health assessment, the requirement of a court to consider the report would give an additional safeguard which can be used to reduce his risk of receiving a custodial sentence. However, figures from a recent review notes that...findings of a psychiatric diagnosis, for those engaged with criminal justice agencies in the community, range from 25% to 77%...for children in custody, the figures are significantly higher, ranging from 46% to 81%...at present, that safeguard is not particularly effective. Source- NACRO (2005, p.1.) The Youth Justice Board (2008, p.10) stipulates the use of specific assessment and screening tools to evaluate risk in relation to mental health problems, these are ... Asset, the Screening Questionnaire Interview for Adolescents (SQIFA) and the Screening Interview for Adolescents (SIFA). Although responsible for completing the Asset, which is the normal assessment tool used by YOT practitioners, I would refer Shane to the YOT's Clinical Specialist Nurse (attached to the Child and Adolescent Mental Health Service) to complete the others...as part of assessment and care planning, child and adolescent mental health professionals should identify whether child abuse or neglect or domestic violence, are factors in a child's mental health problems, and should ensure that this is addressed appropriately in the child's treatment and care. HM Government (2006, p.58) The YJB makes a bold claim that practitioners using these tools will be able to "immediately identify young people requiring help"; this in my opinion is over simplistic and often wrong ...'many young people have mental health problems that are unrecognised and undiagnosed by mental health specialists'. Street, (2000) in Stephenson et al, (2007, p.98) The introduction of the Youth Rehabilitation Order will offer a means of compulsion at sentence point as young people could have a Mental Health Treatment requirement attached to their order. This will prove to be a challenge to YOT practitioners as consideration will have to be given to issues around compliance, breach and enforcement; breach may result in more young people with mental health problems being sent to custody which would only serve to compound their problems. Statistics supplied by the Social Exclusion Task Force suggest there are 60,000 children in care at any given time, compared to children outside local authority care they are eight times more likely to be excluded from school, five times more likely to move schools in years 10 and 11, and three times more likely to be unemployed after leaving school. Section 7 of the Education Act (1996) states: 'the parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable to his age, ability and aptitude, and to any special educational needs he may have. Similarly, section 52 of the Children Act 2004 places a duty on local authorities to promote the educational achievement of the children they look after. In the hope of maximising Shane's future potential I would assess Shane's preferred learning style, gain his views and place him at the core of any planning. Although clearly unhappy at his current education placement, a vocational college placement may better suit his needs. With Shane's agreement I would also make referrals to non statutory agencies such as resettlement and after care and other mentoring schemes in order to support and motivate him. I would hold regular supervision review meetings and involve Connexions, his personal advisor and carers to establish him in structured activities..."Surrounding yourself with positive people, I learnt that years ago. The more positive people you surround yourself with, the more you'll get up and get ahead". (Care leaver, in Ellis, 2002) cited in Stein (2005, p. 16) On the face of it the prospects for Shane and many other children like him are not good and it is clear that agencies must work together to provide co-ordinated services that are accessible and inclusive for young people including those that break the law. It has been argued that in effect each society gets the youth justice system it deserves, as how a society defines and reacts to the behaviour of young people 'ultimately tells us more about social order, the state and political decision-making than it does about the nature of young offending and the most effective ways to respond to it' Muncie