Juvenile Justice in the United Kingdom Restorative Justice...
Transcript of Juvenile Justice in the United Kingdom Restorative Justice...
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Juvenile Justice in the United Kingdom –
Restorative Justice, Family Group Conferences and Anti-
Social Behaviour Orders
Juvenile Justice Systems in Europe –
Reform Developments and Good Practices
Workshop, 22-23 July 2010,
Latvia/Riga, Alberta Street 13, 6 floor
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Juvenile Justice in Northern Ireland – Restorative
Youth Conferencing
• Northern Ireland has introduced a restorative justice approach
to dealing with young offenders
• Restorative Youth Conferencing System aims to move classical
procedures and sanctioning to the margins of the juvenile
justice system
• Conferencing system is based in statute and stands at the
centre of the juvenile justice system
• Conferencing thus underlies the same procedural safeguards
as the ordinary court procedure (f. ex. right to appeal, free legal
representation)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Jim Dignan‘s Restorative Justice Model
• Participatory decision-making processes in which the victim,
offender and others with a direct interest in an offence have the
opportunity to deliberate together and seek agreement on the
most appropriate response to the offence.
• Ordinary criminal trial and sentencing see offences being
committed against the state and its laws.
• Ordinary procedures and outcomes are inappropriate for
providing a forum for decision-making based on involvement
and agreement of victim and offender.
• Aim to divert majority of offenders away from court.
• Role of the state is limited to investigation, determining guilt and
providing a procedure for such deliberations to be held and
decisions to be made.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Jim Dignan‘s Restorative Justice Model (cont.)
• The aim of such a procedure lies not only in finding an
appropriate response to offending in a less stigmatizing and
intimidating arena, but also:
– Holding offenders accountable for their actions, responsibilisation;
– Parties can voice the impact of the offence on their lives, and can
thus be heard;
– Victims can receive apology, find closure, and separate the
offender from the offence;
• When persons are tried and sentenced according to ordinary
processes and penalties, restorative juvenile justice systems
follow a strategy of decarceration, focussing more on penalties
in the community that have an element of reparation
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
15,213,1 14,0
10,8 10,8 9,1 9,1 8,8
5,86,2 3,9
4,2 3,22,3 2,9 4,0
25,326,6 29,3
26,9 29,6
29,231,0 30,9
32,335,2 32,0
35,6 33,4
31,9
32,3 30,9
21,218,9
20,421,8 22,8
27,524,4 24,1
0%
20%
40%
60%
80%
100%
1996 1997 1998 1999 2000 2001 2002 2003
Prison Sentences Suspended Prison Sentences Community SentencesFinancial sentences Discharges Other
Shares of different forms of senteces among all sentences issued against 10-17 year olds in
Northern Ireland, 1996-2003 (source: Northern Ireland Office, RSB 12/2008)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Police
Public Prosecution Service
Adult Courts Youth Courts
Traditional Court ordered Sanctions: Conditional or absolute discharge, Fines,
Community Sanctions, Custodial Sanctions
•Homicide
•Charged with an adult
Charged with
an adult:
Returned to
Youth Court for
sentencing
Upon approval of
Prosecution Service Informed Warning
Restorative Caution
Youth Diversion Scheme
Diversionary Youth
Conference
Court ordered
Youth Conference
Youth Conferencing
Service
Mandatory if
offender
admits guilt
•All other cases
Youth Conference Order
No Further Action
Plan accepted by court
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Diversionary Youth Conferences
• Convened following a referral by the Public Prosecution Service to the Youth Conferencing Service;
• Intended to be used in such cases that would otherwise have justified formal court proceedings;
• Should target young persons who have committed intermediate or more serious offences, or persons with a history of offending as a „follow-up intervention to curb offending, particularly where there has been previous contact with the criminal justice system“ – D. O‘Mahony 2008.
• Underlined by the fact that recommendation for further prosecution only possible where gravity of offence is too severe to merit police diversion, and/or where a person has previously received YDS interventions;
• Conference requires consent of offender and admission of guilt;
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Court-Ordered Youth Conferences
• Require consent and admission of guilt before they can be conducted;
• Mandatory disposal for all persons before the youth court, except for
three exceptions: – Offences with a penalty of life imprisonment;
– Severe offences that are only triable beofre the Crown Court when committed by an
adult;
– Offences specified in the Terrorism Act 2000.
• Court can still decide to order a conference in these cases, but must
justify its decision to so;
• Mandatory nature of court-ordered conferences highlights desired
centrality of restorative justice;
• Since such offences shall be the exception rather than the rule, it is
anticipated that the vast majority of juveniles shall be referred to the
conferencing system by the courts;
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Youth Conference Coordinators
• All referrals are allocated to Youth Conference Coordinators,
who are employees of the civil service with past experience in
other Criminal Justice agencies (f. ex. probation), and special
training in facilitating mediation procedures;
• Role of the Coordinator.
– Preparing all participants for the conference;
– Convening the conference itself;
– Reporting the outcome of the conference back to the referring
Criminal Justice Authority;
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Who may attend a conference?
• Mandatory parties to a Youth Conference:
– Offender
– Conference coordinator
– Appropriate adult (parent, guardian or offender)
– Police officer
• Voluntary participants to a Youth Conference:
– Victim, or a victim representative;
– Probation officer or social worker assigned to the offender;
– Legal representation of offender and/or victim;
– Any other person whom the coordinator deems appropriate to deliver
information and insight into the offender‘s living conditions, environment,
personality, or the impact of the offence on the victim (offender has to
agree to participation of such parties)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Forms of victim participation
• Personally present;
• Victim representative;
• Connected to conference via telephone or video live-link;
• Audio/video recordings;
• Letters can be read out;
• Where victim does not wish to be involved, coordinator can
attempt to describe the impact of the offence on the victim‘s
behalf.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Youth Conference Plans
• Following group dialogue in which the harm that has been
caused is addressed and established, a conference plan is
agreed that takes the form of a negotiated contract.
• Agreement is most important factor, and young offender must
consent to the contract.
• Restorative justice approaches can only have truly restorative
outcomes if regret is sincere and the person realizes that
he/she behaved wrongly.
• According to the Law, plans shall contain at least one of the
following:
– Apology to the victim; financial reparation to the victim; offender
should submit to participate in activities addressing offending
behaviour; curfews; drug and addiction treatment.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Youth Conference Plans (cont.)
• Upon agreement of a plan, or once it becomes clear that an
agreement cannot be reached, the coordinator refers the results
of the conference back to the Prosecution Service or the court;
• Diversionary plans:
– Prosecutor can decide to accept, amend or reject a conference plan.
– Amendments require agreement from the parties involved in drafting the
plan.
– Accepted plans are placed on a young offender‘s criminal record, but not
as a conviction.
– Where a plan cannot be agreed, the coordinator compiles a report
explaining the grounds therefor, to which the prosecutor can refer when
deciding how to further proceed;
– Where no plan results, or where a plan is rejected by the Prosecution
Service, ordinary criminal proceedings can be instituted.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Youth Conference Plans (cont.)
• Court-ordered conference plans:
• Upon agreement of a conference plan, the coordinator sends it to the judge making one of three recommendations:
– The court should deal with the offence ordinarily;
– The court should impose a Youth Conference Plan;
– The court should impose a Youth Conference Plan and deal with the offence ordinarily.
• Plans that are accepted by the court become Youth Conference Orders which are entered on a criminal record as a conviction.
• Court can amend a conference plan with agreement from the parties;
• Court-ordered conference plans can recommend the imposition of custody, the length of which is however determined by the court.
• Court can only impose a Youth Conference Order if it is convinced that the offence is „serious enough to warrant it“.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Consequences of Non-Compliance
• If a young offender willingly and repeatedly fails to comply with a
conference plan, a further conference can be ordered that aims to
address the reasons for non-compliance;
• If non-compliance then persists, the consequences differ depending on
the kind of conference;
• Diversionary conferences: – Amendment of plan with agreement of all parties involved, or
– Revokation of plan and institution of ordinary proceedings;
– If a juvenile is before court as a result of non-compliance with a diversionary
conference plan, the court may, where it feels it is appropriate to do so, order the
facilitation of a court-ordered conference. So a young person can be referred to the
YCS again for the same offence.
• Court-ordered conferences: – Sanctioned with an Attendance Centre Order or a Community Service Order (if 16 or
above).
– Aditionally, the court can amend the plan or extend the timescale for which it lasts.
– It can revoke the plan and resentence the youngster as if he had just been found guilty
of the original offence.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Research on the effects and effectiveness of Youth
Conferencing
• Is youth conferencing meeting the key elements of restorative
practices? (victim and offender participation; opportunity to voice their side of
the story; non-coercion; involvement in the process; satisfaction with outcomes;
agreed outcomes; responsibiliataion; delivery of apology etc.)
• Is conferencing more promising than - or equally promising to –
other forms of intervention in terms of recidivism?
• What have been the effects of Youth Conferencing on the
number of juveniles prosecuted, and the sentencing of juveniles
by the courts?
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Restorative procedure and outcomes?
• Victims participated in 66% of all conferences in 2008/09;
• 91% of victims stated they attended willingly without feeling
coerced;
• 92% of victims felt they were able to say all that they wanted
during the conference;
• 93% of young offenders received the opportunity to exmplain
their perspective, and 98% felt that they were listened to when
doing so;
• 92% of offenders and 78% of victims felt the conference had
helped the offender realise the harm caused by the offence;
• 77% of offenders exhibited shame, and 92% showed remorse;
• 97% accepted responsibility for their behaviour;
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Restorative Procedure and Outcomes? (cont.)
• 91% of victims received a form of apology, and 85% felt this was sincere and were satisfied with it;
• Only 55% of victims entered the conference expecting an apology;
• 86% attended to share how the offence had affected them, and 79% wanted to help the young offender get back on track.
• 70% of agreed conference plans contained no punitive elements; 85% resulted in requirements attending activities and programmes to help the offender; 60% required an apology and 50% entailed the delivery of reparation;
• 91% of all conference plans were agreed with involvement from both parties;
• In 2008/09, 94% of offenders and 86% of victims were satisfied with conference outcomes, and 9/10 would recommend a conference to other victims or ofenders.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Recidivism in the year 2006 according to sentence
received
Total Reoffended
within one year
% reoffending
within one year
Discharges 174 60 34.5%
Fines 178 51 28.7%
Diversionary
Conferences 223 63 28.3%
Court-Ordered
Conferences 215 102 47.4%
Community
Sanctions 265 138 52.1%
Custodial
Sanctions 41 29 70.7%
Source: Tate and O‘Loan, Northern Ireland Youth Re-Offending: Results from the 2006 Cohort. NIO 4/2009.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Youth reoffending in 2006 by sentence received and
offence committed
Non-Custodial Custodial Youth
Conferencing
Violence against
the person 43.4% 87.5% 34.7%
Theft 43.7% 77.8% 31.8%
Burglary 50% - 52%
Drugs Offences 45.5% - 21.7%
Criminal
Damage 45.6% 85.7% 39.3%
Source: Tate and O‘Loan, Northern Ireland Youth Re-Offending: Results from the 2006 Cohort. NIO 4/2009.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Number of persons proceeded against and sanctioned from 2002 to
2006 per 100.000, by age group
Source: Campbell and Wilson, Court Prosecutions and Sentencing for 10 to 17 year olds in 2006. RSB 12/2008
628,0
810,5871,4
940,4956,0953,7
2192,42146,6
2313,3
2208,5
2017,1
707,2762,7753,4
782,8
1850,21847,4
1984,3
1915,61739,5
0,0
500,0
1000,0
1500,0
2000,0
2500,0
2002 2003 2004 2005 2006
Juveniles proceeded against Adults proceeded against Juveniles sentenced Adults sentenced
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Changes in court sanctioning of juveniles, 2003 to 2006
Source: Campbell and Wilson, Court Prosecutions and Sentencing for 10 to 17 year olds in 2006. RSB 12/2008
2003 2004 2005 2006 Change
2003-2006
Immediate
Custody 8.8% 9.6% 9.9% 7.0% -1.8%
Suspended
Custody 4.0% 5.4% 4.9% 2.5% -1.5%
Community
Sentences 30.9% 31.3% 30.4% 29.0% -1.9%
Fines 30.9% 29.8% 27.8% 22.1% -8.8%
Discharges 24.1% 21.8% 21.4% 16.5% -7.6%
Others 1.3% 0.9% 0.5% 0.2% -1.2%
Youth
Conference
Orders
1.3% 4.9% 22.7%
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Critical Issues – Informed consent
• UN Guidelines on the administration of restorative justice programmes require that they „should be used only with the free and voluntary consent of all parties“ (United Nations, 2000)
• Inhowfar participation and consent are voluntary is questionable, in the light of the fact that alternative to consent is usually ordinary prosecution and sentencing.
• In Northern Ireland, young offenders are required to make their decision on whether or not to accept the prospect of a conference “on the spot”.
• Meetings with the coordinator should be conducted before the young person is asked whether or not he consents to the imposition of a conference in order to better ensure that young people have full understanding of the procedure and implications prior to making a decision on consent.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Critical issues – Proportionality of Outcomes and Net-
Widening
• In Northern Ireland, a court should only impose a YCO if the
offence is “serious enough to warrant it”. What is “serious”
enough is decided at the discretion of the court, and the
variability of conference plan conditions leaves much room for
disproportionality to develop.
• There is the danger that a court may be reluctant to turn down a
conference plan for being ‘too harsh’ where there has been
agreement from the young offender in devising it.
• According to the evaluation by Campbell et al. 26% of juveniles
were not happy to agree to the plan, 14% of which felt they had
to agree.
• There is indeed the risk of “double jeopardy”, in that a young
person could be punished by the court both for the offence as
well as for the failure of the conference.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Critical Issues – Proportionality and Net-Widening cont.
• Evaluation of the police-led restorative cautioning approach by
O’Mahony and Doak in 2004 found that, of the restorative
cautions held during the evaluation period, 90% were for minor
thefts, of which 80% were for damages of less than 15 pounds,
and 50% were even less than 5 pounds.
• “it was not uncommon to come across cases where a considerable amount
of police time had been invested in arranging a full conference for the theft
of a chocolate bar or a can of soft drink” - O’Mahony and Doak (2004) Restorative
Justice – Is More Better? p. 494.
• In order to prevent net-widening, it is key that diversionary
measures are targeted rigorously and appropriately, reserving
formal interventions for such cases where the severity of
offending and the history of the offender merit it.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
• Northern Irish approach is a highly promising attempt at incorporating
restorative justice as a central pillar with a juvenile justice sytem.
• Performing well in terms of ensuring restorative outcomes, as
measured by high levels of victim participation, victim and offender and
satisfaction and involvement, and agreed outcomes that are deemed
fair by the majority of participants.
• Fully incorporated into the JJS and into the law, subjecting it to all
procedural and legal safeguards (appeal, free legal aid etc.)
• Centrality effected extensive funding which in theory allows for the
creation of extensive infrastructure and training.
• Initial analyses of recidivism are promising.
Conclusions
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Conclusions cont.
• Problems of knowingly achieving sincere informed consent of
offenders;
• Problems with warranting proportionality of outcomes and preventing
net-widening
• The key to alleviating these issues lies primarily in improving the ability
of the PPS to appropriately target diversionary measures and only
refer cases to court that truly warrant court intervention in terms of
offence severity, offence type and offending history.
• This can only be achieved by continuous, in-depth evaluation of the
effects of conferencing on recidivism, and on the sentencing practices
of the courts
• There is a need to identify which offences and offenders are most
appropriate for conferencing and to adjust targeting based on the
evidence resulting from such analyses,
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Conclusions cont.
• Restorative interventions are resource-intensive and should not
be forced to be used in cases in which other outcomes like
community sanctions, that also have their merits, would be
equally appropriate.
• Thought should be geared not only towards the development of
evidence-based further training for Youth Diversion Officers,
prosecutors and youth court judges, but also to the question of
whether conferences need to be mandatory.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Juvenile Justice in England and Wales –
Anti-Social Behaviour Orders
• English juvenile justice is characterized by high imprisonment rates,
high prison populations, low rates of informal diversion in connection
with a low age of criminal responsibility
• Reforms since the mid 1990s have changed the JJS from one that
focusses on minimum intervention and bifurcation to a zero-tolerance
approach to juvenile justice that claims „prison works“
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Juvenile Justice Reform in England and Wales
• Triggered in particular by:
– A string of riots and exhibitions of violent public disorder
– A select few cases of serious violent offences committed by very
young juveniles (most prominently the Bulger case) that received
extensive media attention and coverage, thus fuelling a moral panic in
the general public
– A general election in 1997 that was primarily characterized by highly
populist punitive and sensationalist discourse building on these events
which shifted juvenile crime to centre stage, and in which both major
parties embarked on a competition of outdoing each other in terms of
promising punitive and intensive shifts in juvenile justice policy
– One could say that New Labour won the election on the grounds that
the previous Conservative Governments had been far too lenient and
weak in their responses to juvenile crime.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
The Neo-Correctional Approach
• Paramout aim of the juvenile justice system is the prevention of offending
• Zero-Tolerance, Law and Order
• Responsibilisation
• Early intervention
• Effectiveness, efficiency and risk assessment
• Swift administration of justice
• Inter-agency collaboration and communication at the local level
• Concentration not only on criminal, but also on pre-delinquent and „anti-social“ behaviour
• Crime reduction, reducing public disorder, community safety
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
England and Wales – Early Intervention
– „Early within the procedure“: even minor infringements of the law should
be responded to with a formal intervention, for example ‚Final Warnings‘ by
the Police, or ‚Referral Orders‘ by the Prosecution Service.
– „Early in a young person‘s life“: intervening in criminal behaviour has
been made possible at an earlier age, with the age of criminal responsibility
having been lowered to 10 years.
– „Early in terms of the behaviour exhibited“: targetting not only criminal
behaviour, but also acts of pre-delinquency, anti-social behaviour,
incivilities, or what is termed „signs of demoralisation“ in Poland.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Anti-social behaviour in England and Wales
„Anti-social behaviour is caused by a lack of respect for other people“ (Home Office, White Paper Respect and Responsibility, p. 7)
„It is time to support the majority against this [anti-social] minority“ (Home Office, White Paper Respect and Responsibility, p. 14)
• Offending and behaving anti-socially are viewed as rational decisions
and as evidence for a lack of respect for the community.
• Law-abiding citizens should feel offended and angered by such
behaviour and that they are entitled to a community free of ASB.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
What is Anti-Social Behaviour?
„Forms of behaviour or conduct that cause or are likely to cause feelings
of alarm, harassment or distress to one or more persons not of the
same household“
• Examples of ASB: Littering, verbal (racial) abuse, fly-tipping
(dumping large amounts of rubbish in public spaces), riding
mini-motorbikes, intimidating groups of young people hanging
around, misusing fireworks, begging, public drinking, school
truancy, and of course criminal behaviour
• Wilson and Kelling’s “Broken Windows” theory: monitoring and
maintaining urban environments in a well-ordered condition
through timely intervention may prevent urban deterioration and
escalation of incivilities into more severe crime and disorder.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
The Anti-Social Behaviour Order (ASBO)
• Can be applied for when a person behaves in an anti-social or criminal manner
• Applicable to all persons aged 10 and above
• Can be applied for by the police, the local authorities, transport police and registered social landlords, either on their own grounds, or upon complaints from the local community.
• Issued by adult Magistrate’s Courts in civil law proceedings
• Can only be issued if the protection of the public from the behaviour in question cannot be achieved by any other means
• Last for a stated period of at least two years. No maximum limit has been set because duration depends not on the severity of the behaviour, but on the degree of public protection required.
• Prohibits the named individual from behaving in certain ways as stated in the order, one of which is always the prohibition from engaging in further ASB based on the definition stated above. Other common conditions are geographical exclusion areas and curfews.
• Conditions have to stand in direct connection to the offence or behaviour of which the young offender has been sentenced or accused.
• Failure to comply with the conditions is a breach of a civil order, which for children and juveniles is punishable with up to two years imprisonment.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
193 251
628
1.340
1.581
1.053920
151170
713
2.086
2.469
1.625
1.362
62
64
0
500
1.000
1.500
2.000
2.500
3.000
3.500
4.000
4.500
2000 2001 2002 2003 2004 2005 2006 2007
Juveniles Adults
Anti-Social Behaviour Orders issued in England and Wales, June 2000
to December 2007
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
0
500
1.000
1.500
2.000
2.500
3.000
3.500
4.000
4.500
2002 2003 2004 2005 2006 2007
Only ASBOs 'on application' All ASBOs
1,309
3,479
427
4,122
2,705
2,299
426
686
1,208 1,277
886 941
Effect of introduction of criminal ASBOs on the overall number of ASBOs issued,
June 2000 – December 2007
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
An example for an ASBO
• 16-year-old served with an ASBO for harassing residents of
Chepstow, Wales, by running across gardens, insulting
residents, throwing stones and climbing on roofs
• Was electronically tagged for a previous conviction for burglary
at the time the ASBO was issued (criminal history)
• ASBO to last for two years, banning him from the following:
– Behaving in an anti-social manner
– Entering without prior invitation any privately owned property in England
and Wales, including car parks, schools and gardens
– Threatening, insulting or abusing others
– Climbing on the roof of any building in England/Wales
– Associating with, contacting or attempting to contact four youths named in
the order
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Criticism of Anti-Social Behaviour Orders
• Criticism can be broken down into three broad perspectives that
are in fact all interconnected with each other:
– Fear that ASBOs undermine efforts of social inclusion, reintegration,
improving social cohesion and offender rehabilitation;
– Net-widening effects, both in terms of the forms of behaviour to which it is
intended to respond (criminalisation), and that it could be disproportionately
fast-tracking young people in prison;
– Circumvention of key elements of due process and procedural safeguards
with a shift of focus towards protecting the public and improving public
satisfaction with and perceptions of the justice system to the detriment of
the best interest of the child.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Criticism of ASBOs – Social Exclusion
• ASBO conditions are merely prohibitive, negative and exclusive
• No efforts made to tackle underlying causes of offending or AS
behaviour, or to address other associated risk factors
• No efforts to promote social inclusion, rehabilitation, education
• Assumption that behaviour shall improve solely on the basis
having been warned of the consequences of non-compliance
„I hope he will respond positively to the order, and see it as a turning point in his life. The
consequences of failing to comply can be serious“
Brian Tulley, ASB coordinator for East Cambridgeshire
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
• Clearly underlines New Labour‘s view that ASB and offending are the results of
rational decisions that maliciously aim to damage the community.
• Being prohibited from behaving in ways that are not precisely defined makes it
very difficult to knowingly behave properly, especially for young people.
• Where geographical exclusion zones are defined, it could be difficult for a child
to identify the boundaries of that area.
• Difficulties reflected in high breach rates of ASBO conditions.
• Home Office data from June 2000 – December 2007 indicate:
– 14,972 people received ASBOs, 53.3% of them breached their conditions at least once,
38.6% did so multiple times.
– Juveniles much more likely to breach their ASBOs, with 63.9% breaching at least once
(compared to 47.7% for adults), and 47.5% breaching multiple times (compared to 33.8%
for adults).
Criticism of ASBOs – Social Exclusion cont.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
ASBOs breached between June 2000 and December 2007
10-17 year olds 18 and over All ages
Total number of
persons
receiving ASBOs
6,028 8,640 14,972
Persons
breaching at
least once
3,853 4,128 7,981
Breach rate 63.9% 47.7% 53.3%
Persons
breaching more
than once
2,862 2,923 5,785
Multiple breach
rate 47.5% 33.8% 38.6%
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
• ASBO proceedings are civil law proceedings.
• Thus not subject to reporting restrictions as would be the case
in criminal proceedings.
• New Labour encouraged public „naming and shaming“
juveniles who receive ASBOs in the local media and on posters
that are reminiscent of „Wanted“ signs in the wild west.
• Our case study was taken directly from a local newspaper’s
internet portal.
• His name, age, photograph, address and the conditions of his
ASBO have been made publicly available in mass media, and
the police urge residents to call them if they witness any
breaches of the order.
Criticism of ASBOs – Social Exclusion cont.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
http://www.dailymail.co.uk/news/article-1181289/Asbo-youths-named-shamed-police-rogues-gallery-poster.html
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
http://www.southwalesargus.co.uk/news/4575939.Chepstow_teen_banned_from_gardens_and_roofs/
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Criticism of ASBOs – Social Exclusion cont.
• Naming and shaming is indicative of a quasi-communitarian, popular punitive approach that is characteristic of Neo-Correctionalist systems.
• Such „desintegrative shaming“ stands in sharp contrast to the Northern Irish approach that builds on „reintegrative shaming“
• Generates the impression within the community that something is being done, that stern action is being taken in order to improve the lives of „decent people“.
• Improves satisfaction with the justice system, while at the same time ensuring that the fear of delinquency and of the folk devil „juvenile“ remain in the foreground of public perception.
• Places the enforcement of ASBOs in the hands of the community, gives residents a sense of empowerment and involvement.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
• Reporting persons who contravene their ASBO conditions is
viewed as a duty of citizenship, as assuming community
responsibility, as helping to make the community safe.
• Such empowerment and fostering of self-rightiousness is at the
detriment of young people, because whether or not a member
of the community reports an ASBO to have been breached
depends on his/her personal perception of „what is anti-social
behaviour“.
„Anti-Social behaviour means different things to different people“
- White Paper Respect and Responsibility, p. 6
Criticism of ASBOs – Social Exclusion cont.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Criticism of ASBOs – Net-widening
• Data for June 2000 – December 2007 (Home Office):
– 11,340 breaches by 2,768 juveniles (roughly four breaches per person)
– 3,248 breaches (28.6%) resulted in custodial sentences.
– For 1,142 juveniles (41.3%) who were sentenced for a breach of their
conditions, the most severe sentence they received was custodial. I. e.
41.3% of juvenile breachers received custodial sentences at some point
of serving their ASBO.
– 5,431 (47.9%) breaches resulted in community sanctions
– Community sanctions were the most severe sentence received by 1,227
juveniles (44.3%).
– In total, 76.5% of breaches by juveniles received santions that are
usually reserved for imprisonable offences, and 85.6% of all juveniles
who breached their ASBO received such a sentence at some point.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Criticism of ASBOs – Net-widening cont.
• Strong discrepancy between the average length of custodial sentences resulting from ASBO breaches by juveniles (6 months) and those by adults (3.9 months)
• Can to a certain degree be explained by the fact that the only custodial sentencing option available for juveniles who breach their ASBOs is the so-called Detention and Training Order, which has a minimum duration of four months, which will of course affect the average.
• The first half of a DTO is spent in custody, the second half is spent under supervision in the community, effectively halving the average length of detention to around 3 ¼ months for juveniles.
• Does not exactly improve the situation, because juveniles are still subjected to a period of probation and can be recalled to custody if they reoffend.
• It appears as though length of DTOs issued by the courts is primarily determined by the period to be definitely spent in custody.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Criticism of ASBOs – Due process, procedural
safeguards, and the best interest of the child
• Civil burden of proof applies in ASBO proceedings.
• No need for proof beyond reasonable doubt.
• Hearsay evidence is admissible (f. ex. a resident tells a police
officer that someone has behaved antisocially).
• Since the majority of ASBOs are issued for criminal behaviour,
this form of intervention can be regarded as a „back door“
through which procedural and due process safeguards are
circumvented, especially in cases in which evidence could be
insufficient to get a conviction in criminal proceedings.
• Contravention of European Convention of Human Rights, most
prominently the presumption of innocence, the right to a fair
trial, the need for criminal intent to prove guilt etc.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
• UN Convention on the Rights of the Child and Beijing Rules of
1985 call for use of imprisonment as a last resort.
• General focus lies on public protection and improving public
perceptions of the justice system, rather than on promoting and
having regard for the best interest of the child, which is very
characteristic of Neo-Correctionalism. Examples:
– No maximum duration of ASBOs fixed by law because duration shall be
determined by the degree of public protection required;
– Official aim of ASBOs is protection of the public;
– Naming and Shaming;
• Naming and Shaming would be in contravention of Article 40 of
the UN Convention of the Rights of the Child which guarantees
privacy at all stages of criminal proceedings.
Criticism of ASBOs – Due process, procedural
safeguards, and the best interest of the child
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGY Philip Horsfield
Conclusions
• We are all hungry
• English Action Plan for combatting anti-social behaviour covers
many other preventive initiatives that are supportive,
constructive and less coercive.
• Once problems step into public view, the tone changes to
repression and retribution.
• ASBOs are unlikely to have any long-term preventive effect.
• Criminalisation and demonization instead of rehabilitative
efforts.
• Citizenship as an „entitlement to a civil and respectable
society“, but not an „entitlement to support to be reintegrated
into civil respectable society“.