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‘There are many competing pressures to direct the service in ways that may not be consistent with Social Work principles towards greater penal and correctional models. It is therefore essential to have a clear understanding of the policy and legal framework that creates the remit and legitimacy for the operation of Social Work in the Criminal Justice process’ (Whyte, 2001, p.7).
As Whyte’s views indicate, to practise effectively, it is necessary to have a critical understanding of the law and to recognise limitations as well as strengths in Social Work. The law can lack clarity and can be open to interpretation. This essay aims to discuss Social Work roles and responsibilities in Criminal Justice settings in relation to the increasing number of women involved in the Scottish Criminal Justice system. The law can make the Social Work task complex and issues related to assessment, decision-making, accountability, discrimination and oppression will be considered and the impact on services users, their families and the community.
Social Work involves working with marginalised and disadvantaged service users who can be both vulnerable to crime and susceptible to criminalisation and subsequently, practice involves work with victims or offenders. Local Authorities (LA’s) have a statutory responsibility to provide Criminal Justice Social Work Services to support the Criminal Justice process through assessment of individuals, information to the Courts and supervision of offenders.
Scotland differs from the rest of the UK in that there is a unique cultural and political heritage and a separate legal system. Social Work therefore, has a central role within the Criminal Justice process in Scotland which is in contrast to England and Wales. As McAra (2005) suggests a more welfare orientated approach has been adopted due to Scotland’s legal culture and political history.
The legal framework outlining powers and duties of Criminal Justice Social Work is the Social Work Scotland Act 1968 (as amended). Section 27 of this Act outlines the duty by LA’s to provide specific Criminal Justice services (for example social background reports, supervision of offenders on an Order or Licence) in respect of central government funding however, it does not explain the objectives of these services or provide guidance on their exercise. Section 12 gives LA’s discretion to provide additional services for example to victims, as part of the general responsibility to ‘promote social welfare.’
Probation or offender services became the responsibility of the LA Social Work Departments in 1968 and had a general duty to ‘promote social welfare’ in their locality (S12, Social Work (Scotland) Act 1968). This was due to the Kilbrandon Committee (Kilbrandon, 1964) being appointed to investigate increasing juvenile crime. The Kilbrandon Report recommended a new approach to children’s services with children who offend being treated the same as children requiring care and protection. Kilbrandon also suggested diversion and early voluntary intervention as crime prevention and one department for children and adults. This merge of work with adult offenders was pivotal in recognising work with offenders as having a welfare component admittedly with a level of control. The Kilbrandon philosophy advocated rehabilitation and treatment of offenders and an awareness of the social causes of crime which is still relevant to today’s practice.
From the 1980’s onwards Criminal Justice in Scotland has undergone major legislative and
policy change. As there was concern for public protection and community disposal
effectiveness in 1991, 100 per cent central government funding was introduced and the
National Objectives and Standards (NOS) were published which set out core objectives,
service provision and guidance on their delivery (Social Work Group, 1991). This resulted in
the government committing to Social Work delivering this role.
Due to recent rising prison populations, there has been growing political concern that custody rates need to decrease and should be replaced with community based alternatives. Women are only a minority of the prison population but their imprisonment is increasing more than that of men (McIvor, 2007), although their offending is less serious and less frequent.
Prison sentences are inappropriate for female offenders, with the exception of serious or violent female offenders as their fragile situation in the community can be exacerbated and this can have a long-term negative impact on women and their families (Corston, 2007).
Social Work with offenders should aim to address and reduce offending behaviour. Whilst the law provides a framework for practice, effective work with offenders requires skills such as communication, therapeutic relationships in supervision, assessment and risk management. The task is varied and complex as Social Workers have the power to control the individuals who are referred via the Courts and enforce Court Orders but must also work with an offender in a holistic, inclusive way to have a positive impact on their offending behaviour (Scottish Executive, 2004a). This can be through support and assistance in relation to personal and social problems but also the individual taking responsibility for their actions. Effective and ethical practice is therefore, about considering and managing the needs and rights of the Courts, the general public, victims and offenders.
Although Social Workers have statutory duties and powers to intervene in people’s lives this is not always welcome but is necessary in promoting public safety. Under the Scottish Social Services Council (SSSC) Code of Practice, Social Workers have an obligation ‘to uphold public trust and confidence’ and the Criminal Justice Authorities (CJA’s) are required by Scottish Executive guidance to develop a strategy to address this (Scottish Executive, 2006b). This strategy includes both offenders and their families and Social Workers should engage these individuals and recognise their views in the development of services.
Both Criminal Law and Social Work recognise the autonomy of individual’s choices on how they lead their lives and with this capacity is criminal responsibility. Those who lack capacity e.g. children and the mentally disordered, are not culpable in the eyes of the law and may be treated differently. It is therefore recognised that criminal behaviour is not just a choice but may be about social circumstances to which they have minimal control. Social Workers should assist in allowing individuals to improve their capacity for making choices together with consequences to their actions (ADSW, 1996a).
Although Social Workers are obliged to protect the rights and interests of service users there is a belief amongst the general public that they have forfeited these rights when they have offended. All Criminal Justice agencies must comply with the Human Rights Act 1988 which incorporates into domestic law the fundamental rights set out in the European Convention of Human Rights (ECHR). Public Authorities are required to respect all of the provisions however, the two articles with particular relevance to Criminal Law and Social Work are ‘the right to liberty and security’ (Article 5. ECHR) and ‘the right to a fair trial’ (Article 6, ECHR). However, restrictions can be imposed on those who breach criminal law or are a threat to public safety as long as the detention is authorised by law and there is balance between the individual, their victims and the general public. The Social Worker must assess this balance through rigorous assessment and analysis of risk. The role requires respect to offenders as individuals and ‘ensure that the offender’s ability and right to function as a member of society is not impaired to a greater extent than is necessary in the interests of justice’ (ADSW, 1996a).
Criminal Justice Social Work services are delivered in partnership with various statutory and non-statutory agencies and this presents challenges due to conflicting professional values and aims. The Management of Offenders etc. (Scotland) Act 2005 was introduced to improve joint working and co-ordinate the management of offenders in the transition from custody to community supervision and places a duty on Criminal Justice Authorities (CJAs) to have an information sharing process in order that relevant information is shared between agencies (s.3 (5)(g)) for improving offender and risk management. However, sensitive personal information must be handled carefully and be under the principles of the Data Protection Act 1988 and local agency protocols.
Practitioners must ensure that any information sharing decisions are fully explained and understood by the offender even when their consent to disclosure is not required.
Organisations who deliver public services have general duties to eliminate unlawful discrimination and promote equality of opportunity on the grounds of race (Race Relations (Amendment) Act 2000), sex (Equality Act 2006), and disability (Disability Discrimination Act 2005). Individuals who are involved with Criminal Justice organisations are entitled to the protection of discrimination laws which relate to sex, race, disability, religious beliefs and sexual orientation, with exception to exercising judicial functions or carrying out Court orders. In these circumstances, it may be within Article 14 of the ECHR which prevents to the right to liberty and security of the individual or the right to a fair trial being interfered with on a wide range of discriminatory grounds. Criminal Justice is still influenced by prejudicial and discriminatory views.
Research carried out by both the Social Work and Prisons Inspectorate for Scotland (1998) highlighted concerns about the treatment of female offenders in the Criminal Justice process. In addition, several inquiries in England and Wales in relation to racial discrimination by the police and prison services have subsequently raised public awareness (Macpherson, 1999; Keith, 2006). The Scottish Government has a duty to publish information of discrimination of any unlawful grounds (s.306 (1)(b) Criminal Procedure (Scotland) Act 1995) and therefore, all workers need to practise in an anti-discriminatory way.
The law outlines the limits of Social Work intervention and knowledge of the law is essential to anti-oppressive practice.
‘The only legitimacy for intervening in the life of the individual within the criminal justice process is the individual’s offending behaviour…if individuals have social needs which require to be met but are not crime related or crime producing, or if the offence is not sufficiently serious to fall within the criteria of the ‘twin-track’ approach, services should be offered, as far as possible, through voluntary provision…No-one should be drawn into the criminal justice processes in order to receive social work help’ (Moore and Whyte, 1998, p.24).
Risk assessment and offence based practice is an ethical approach. It aims to ensure that ‘the most intensive and potentially most intrusive services are focused on those service users who pose the greatest risk of causing harm to others'(ADSW, 2003) and prevent socially disadvantaged individuals being taken further into criminal justice control which can result in further social exclusion. There is often a complex relationship between social exclusion and offending behaviour and often the Criminal Justice process displays existing injustices within society. It is important that issues in relation to class, age and social context should be recognised together with vulnerability to discrimination.
The Social Worker’s role should be to address issues of social exclusion and empower individuals to lead law abiding lives by addressing their offending behaviour. Social Work can help offenders develop capacity to make informed choices by actively encouraging engagement with improving their current situation and their participation in the supervision and change process (McCulloch, 2005; McNeill, 2004). Assisting offenders to focus on their strengths as opposed to their risk and needs can have a positive impact as they learn to recognise the value in their own lives and respect the value of others.
The sentencing stage in the criminal justice process generates the majority of Criminal Justice Social Work through provision of information to the Court in the form of Social Enquiry Reports (SERs) and the administration of community disposals, with the exception of liberty orders (tagging). SERs have no legal basis but there is a statutory duty on criminal justice social work to provide reports to the Court for disposal of a case (s.27(1)(a) SWSA 1968. ‘Reports provide the court with the information and advice they need in deciding on the most appropriate way to deal with offenders. They include information and advice about the feasibility of community based disposals, particularly those involving local authority supervision. In the case of every offender under 21 and any offender facing custody for the first time, the court must obtain information and advice about whether a community based disposal is available and appropriate. In the event of custody, the court requires advice about the possible need for a Supervised Release order or Extended Sentence Supervision on release’. (Scottish Executive, 2004d, para. 1.5)
The Criminal Procedure (Scotland) Act 1995 sets out when the court can or must obtain an SER. Failure to request a report, where required by law, can result in a sentence being quashed on appeal. The Court is not obliged to follow recommendations or opinions in the SER however, Social Workers can have a direct influence on the sentence passed.
‘Preparing SERs demands a high standard of professional practice. It requires skilled interviewing, the ability to collect and assess information from different sources, and the art of writing a report which is dependable, constructive, impartial and brief’ (Social Work Services Inspectorate (SWSI), 1996).
The law imposes time limits in compiling reports, which in practice creates more demands on a worker’s time and places increased pressure in the preparation of SERs especially if there are high numbers of worker absence or whether the offender is known to the worker and their individual circumstances. Whilst conducting interviews the worker must ensure that the offender understands the purpose of the report, the relevance of questions (health, addiction issues, and personal relationships) and the limits to confidentiality of this information. Social workers must balance between an informed recommendation and an awareness of the severity of the offence. The report author should be impartial and not minimise the seriousness of the offence and its impact (NOS, Scottish Executive, 2004d, para 5.5) and phrases that imply moral judgements, label or stereotype offenders should not be used (para. 5.1).
When compiling an SER workers are required to consider the suitability of disposals in relation to the risk posed by an offender and to target appropriate resources which are most appropriate and successful in addressing offending behaviour. Risk assessment is complex and there has been a shift from concern for the offender and their needs to concern about public safety and the offender being a potential source of risk to others. Although the legislation is not explicit about offending behaviour, NOS state that SERs should provide ‘information and advice which will help the Court decide the available sentencing options…by assessing the risk of reoffending, and…the possible harm to others. This requires an investigation of offending behaviour and of the offenders’ circumstances, attitudes and motivation to change’ (Scottish Executive, 2004d, 1.6).
The most widely used assessment tools are The Level of Service Inventory – Revised
(LSI-R) to assess risk of re-offending and the Risk Assessment Guidance Framework (RAGF) to assess risk of harm. However, worker’s vary in their use of risk of harm assessment tools, with some workers using the Risk Assessment 1-4 (RA1-4) due to lack of training on the RAGF assessment tool, lack of confidence or personal choice and in personal experience some workers fail to address the risk of harm in SER’s for fear of being questioned about the validity and reliability of the assessment. LA Criminal Justice Services have opted for one or other, or a combination of both approaches in their offender management. However, the national implementation of a common tool is now planned, with the proposals for The Level of Service Case Management Inventory (LSCMI) (Scottish Government, 2007).
These risk assessment tools are inappropriate for women offenders, as their development is based predominantly on populations of men (McIvor and Kemshall, 2002: Maurutto and Hannah-Moffat, 2006), tend to over predict the risk of re-offending and fail to identify health and other needs that are of particular relevance to women. Even where needs are identified it is unclear whether or how they relate to women’s offending. Actuarial calculations can result in inappropriate and harsh responses from the Courts but can also deny that a woman is in the process of desisting from crime or that her offending is a symptom as opposed to a cause of other additional problems in her life. It could be argued that focus should be more about needs which stablise an individual’s lifestyle than on offending, which results from that lifestyle, and could be seen as a better way to inform both sentencer and practitioner decision making.
Professional judgement also varies widely depending on the assessor. Differences can emerge due to worker’s age, length of service and experience and some use their professional judgement more than actuarial methods (Barry, 2007a). Risk assessments are standardised tools which fail to take into account how appropriate interventions are or the availability of services but form the basis on which the need for and access to interventions is determined. These differing needs and circumstances mean that available interventions are not appropriate for a lot of women.
The assessed needs of women are not always taken into account in the sentence they receive. Women predominantly, are given harsher sentences that are disproportionate to the offence in comparison to the treatment of male offenders. Community Service is a high-tariff disposal which is legislated to serve as an alternative to custody. However, research carried out in Scotland concluded that women were more likely to receive a Community Service Order in their involvement in the Criminal Justice system than men (McIvor, 1998; McIvor and Barry, 1998).
Community Service is traditionally male dominated, is mainly heavy manual duties such as painting, landscaping and joinery and many women struggle with this disposal for several reasons. Firstly, in terms of child care arrangements whilst undertaking their placement, women can be wary due to past experiences with Children and Families Social Workers even although they have no access to childcare through their own social networks and therefore, organising childcare facilities becomes the responsibility of the Social Work Department.
Additionally, there is lack of female supervisors to oversee Community Service placements for women and many women are reluctant to be supervised by a man and this greatly reduces the number of placements appropriate to their skills and capabilities.
The use of effective and appropriate sanctions for female offenders presents some challenges. Interventions and services are typically developed for male offenders but are unlikely to meet female offenders’ needs and there is increasing recognition that gender appropriate provision is required. As argued by Sheehan et al. (2007) gender specific responses may encourage a reduction in imprisonment for this vulnerable group as women tend to offend through necessity than choice (Barry, 2007b; Home Office, 2004).
Support from Social Workers’ should be given to reduce involvement in offending, but underlying problems must also be addressed such as low self-esteem, mental and physical health, financial restraints and limited educational and employment opportunities.
A study of probation with female offenders in Scotland, found that practitioners recognised that interventions with women need to be more informal, less structured and more focused on issues other than offending behaviour. Community sanctions work more effectively if there is flexibility as women tend to breach orders as a result of non-compliance as opposed to further offending (Scottish Government, 2007).
Probation can be seen as access to a package of welfare measures which might not otherwise be available to women who need support as opposed to punishment (McIvor and Barry, 1998). An ongoing challenge for practitioners is the absence of alternative welfare orientated disposals and that some women view probation negatively based on previous episodes of supervision or involvement in relation to child care issues and may not embrace support made available. Probation Orders vary in length and this can cause difficulties in client motivation over a long period of time and increases the risk of non-compliance resulting in Breach.
Although the law is crucial in framing Social Work practice in the Criminal Justice process it is equally important that Social Work skills and values are central to effective interventions. Crime has become increasingly prominent both in the public and political agenda and therefore, Social Work has become more prominent and complex. Social Workers have a professional responsibility towards victims, the Court, community and offenders however, community based resources are scarce for women as their offending rarely presents a significant public risk (Scottish Office, 1998).
The needs presented by women appear to be less about offending and more about the underlying problems in their lives such as former or current abuse, poverty, parenting difficulties, mental health and addiction issues and this can increase the likelihood of offending (Carless, 2006). These problems due to their nature and complexity often make it difficult for professionals to work effectively within the confines of the Criminal Justice system. Priority should be given to offering practical and emotional support to women rather than focusing on their offending behaviour and their ability to comply with strict requirements. The Criminal Justice system cannot solely provide effective responses to vulnerable women leading often chaotic and damaged lives within an increasingly risk averse and punitive environment however, Social Workers need to have a critical understanding of the law to practice effectively and to recognise its limitations as well as strengths.
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