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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).
Statute law is created by Acts of the UK and Scottish Parliaments and relies upon rulings made in Court Hearings to set precedents that define and interpret key terms i.e. Case Law. Understanding the law is fundamental to practice in Criminal Justice settings. Criminal Law is a powerful instrument of social control and sanctions and the Criminal Courts have the potential to impose restrictions of liberty of individuals. Social Workers have a responsibility towards the general public and the courts to protect the public and ensure their wellbeing however, there is also obligation towards those who are in the Criminal Justice process who may be vulnerable and in need of services provided by Social Work. It is therefore essential that all workers have an understanding of the legal frameworks that govern Criminal Justice Social Work and are aware of the scope and limitations of their mandate (Whyte, 2001). However, law is subject to change and ‘criminal justice policy is more liable to sudden, politically motivated changes of direction than is social policy in other fields’ (Smith, 2002, p.309)
The law defines what a crime is, rules of evidence and criminal procedure. However, discretion is given to those involved and therefore, the criminal justice process is not systematic. The judiciary, police and social work have differing roles, agendas, values and beliefs which are shaped by training and cultures which can make working within the system difficult due to lack of shared understanding of common aims and individual roles.
Social Work involves working with the marginalised and disadvantaged and can be both vulnerable to crime and susceptible to criminalisation and practice involves work with victims or offenders. Local Authorities have 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 where probation work is commissioned by the National Offender Management Service (NOMS) which is separate from Local Authority control and Social Work functions and shows a difference in their approaches in responding to crime. As McAra (2005) suggests a more welfare orientated approach has been adopted due to its 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 Local Authorities to provide specific Criminal Justice services (e.g. 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 Local Authorities (LA’s) discretion to provide additional services (e.g. victims) as part of the general responsibility to ‘promote social welfare.’
Probation or offender services became the responsibility of the Local Authority 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 based on the needs of children and families and those who offend should be treated the same as those 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. Although the Kilbrandon philosophy followed trends of the time which advocated rehabilitation and treatment of offenders and an awareness of the social causes of crime, this is still highly relevant to today’s practice.
From the 1980’s onwards Criminal Justice in Scotland has undergone major legislative and
policy change due to successive governments. 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 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. This policy
arrangement outlined by Rifkind in 1989 has survived changes in political administration
although, it has been suggested that devolution has caused a ‘sudden and dramatic
politicisation’ of Criminal Justice issues and could undermine the welfare tradition (McNeill
and Batchelor, 2004: Croal, 2005).
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 Social Work skills such as communication, therapeutic relationships in supervision, assessment and risk management. The task is therefore, varied and complex as Social Workers have the power to control the individuals who are referred via the Courts and enforce any Court Orders but must also work with an offender in a holistic, inclusive way to have a positive impact on their offending behaviour and 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 interfere in people’s lives this is not always welcome but is necessary in promoting public safety. Under the Scottish Social Work 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 of which 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, the state can impose restrictions 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 a 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 Social Work 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 can present 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 especially 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 within Social Work 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 has been carried out by both the Social Work and Prisons Inspectorate for Scotland (1998) which highlighted concerns about the treatment of female offenders in the Criminal Justice process. In addition to this, several inquiries in England and Wales in relation to racial discrimination by the police and prison services has 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 practice 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).
Rehabilitative intervention is not just about helping; it imposes limitations on the rights of the individual who is subject to the intervention. 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 to prevent socially disadvantaged individuals being taken further into criminal justice control which can result in further social exclusion.
Criminal Justice Social Workers must take note that the role involves work with disadvantaged social groups. Certain types of crimes and offenders often criminalise the young, deprived, unemployed and undereducated male with an experience of the care system and this is clear from Social Work and prison statistics (Croall, 2005; McAra and McVie, 2005). 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 their participation in the supervision/change process and their engagement with improving their current social situation (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 respecting 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, Foreword).
The law imposes time limits in compiling reports. The Courts require a report within three weeks (s.201(3) (a) if an offender is remanded in custody and within four weeks if the offender is on bail (s.21(3)(b) of the 1995 Act). This means in practice that there are increased demands on a worker’s time that places increased pressure in the preparation of SERs especially if there are high numbers of worker absence due to leave or whether the worker knows the offender 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. Guidelines for the assessment and management of risk are outlined in the Management and Assessment of Risk in Social Work Services (SWSI, 2000) and there are also additional risk assessment frameworks which specifically relate to serious violent and sex offenders. In Criminal Justice the focus has moved from risk of custody to risk of reoffending and risk of harm. 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, National Standards 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).
Risk is defined by Kemshall (1996) as ‘the probability of a future negative or harmful event’ and assessment of risk includes: the likliehood of an event occurring, who is likely to be at risk, the nature of the harm which they might be exposed and the impact and consequences of the harmful event.
Risk assessment has changed over the years and prior to the introduction of risk assessment tools workers relied on clinical methods or professional judgement which was based on an offender’s history. These methods were criticised for being too subjective, inaccurate, open to worker bias and dependent on information given by the offender. In the 1990’s workers moved towards objective and empirically based risk assessment tools (actuarial) to support their assessment. Actuarial risk assessment tools rely on static (historical) risk factors together with dynamic (criminogenic) risk factors and to assess the risk of reoffending.
The static factors (which cannot change) take into account gender, age at first conviction, number of previous offences and custodial experiences, school progress, previous employment and personal history. The criminogenic factors (focus on current areas) include current employment, personal relationships, peer associates, use of time, substance use, mental health and attitudes and behaviour. All of these factors impact on the risk of reoffending (Bonta, 1996). The most widely used assessment tool, The Level of Service Inventory – Revised (LSI-R) devised by Andrews and Bonta (1995) incorporates both static and dynamic factors. However, it does not assess risk of harm and this shows that both actuarial and clinical risk assessments are crucial for an effective and comprehensive risk assessment. Clinical methods combine knowledge of the offender’s personality, habits’ lifestyle and an analysis of the circumstances of the offending behaviour and are therefore, the most appropriate assessment tool at identifying those who are likely to cause serious harm. Although more time consuming and require more in-depth analysis of both the offender and the offence risk is assessed on predispositions, motivation towards certain behaviours and triggers that may contribute to harmful behaviour.
Actuarial tools are not totally accurate (Kemshall, 1996) and although this is improved upon through use of clinical methods in decision making, professional judgement is also crucial. Social workers must be aware that social disadvantage plays a part and this can contribute to a higher assessment of risk and need and to be cautious about the total reliability of these factors when making recommendations that may affect an offender’s liberty.
Risk assessment and intervention or supervision should be informed by valid, reliable and ongoing assessment and Social Workers should familiarise themselves with research emerging in this area and the many assessment tools and change programmes available (Levy et.al., 2002).
To support change Social Workers have to not just think about what work is done with the offender but how that work is done. ‘Offenders under supervision have very high levels of need. Moreover, although most offenders have many needs in common, there are also significant variations that necessitate the thoughtful tailoring of individual interventions if the effectiveness of practice is to be maximised. In delivering effective practice, the accumulated weight of evidence…drives us towards recognition that practice skills in general and relationship skills in particular are at least as critical in reducing re-offending as programme content’ (McNeill et al., 2005, p.5). This recent review of core skills required for effective Criminal Justice Social Work practice raises challenges in practising ethically and effectively but when applied critically and reflectively this could achieve positive outcomes that are in the interest of the public, victims and offenders.
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 as the role is both demanding and rewarding. 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. To fulfil this role effectively, Social Workers must have a clear, confident understanding of their role, the legislative and policy context and a commitment to increasing and developing knowledge, skills and values required for effective and ethical practice.
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