From Waitonga to Belfast

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From Waitonga to Belfast

• Judge David Smyth QC.

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Cessare Beccaria

• In order that any punishment should not be an act
  of violence by one person, or by many, against a
  private citizen it is essential that it should be
  public, prompt, necessary, the minimum possible
  under the circumstances, proportionate to the
  crimes and established by law

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11th June 1800

• Mary West (and her mother)
• Charge of theft
• 14, unrepresented and convicted
• Sentenced to be hanged
• Commuted to transportation
• Now 216 years since the first fleet landed in
  Port Jackson
• French concept Penal reform and colonisation.

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Does Detention work?

• It may be necessary
• It may be expected
• It may prevent
• It may deter
• It may be the minimum required
• Public, prompt (?), established by law
• It should be civilised and humane

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Dunedin New Zealand 1984 and 1986

• there are a number of children running the
  streets of Dunedinwithout control of their
  parents. If the Government does not take them in
  handthey will becomemembers of a criminal
  class.
• there is a definite relationship between the
  increase in the number of children on the streets
  and the increase in juvenile crime.
• Headlines are from Otago Daily Times 1884 and
  1886 (Dr Gabrielle Maxwell)
• Anyone who has read Dickens, whether Oliver Twist
  or Bleak House and Jo, the crossing sweeper.

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Age of Criminal responsibility

• Wide disparity e.g. Portugal 16 England and
  Northern Ireland 10 Scotland 8
• UNCROC does not specify a minimum age but the UN
  Committee has criticised jurisdictions in which
  minimum age is 12 or below
• Cultural norms complex questions of maturation
  and development involved
• doli incapax, the rebuttable presumption that
  children are criminally incapable has gone in NI.
• Legitimate area for debate.

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Two competing themes

• The desire, and need, for longer sentences in
  prison.
• The desire to try and find effective, and less
  expensive, alternatives to custody.
• Examples of first, authoritarian, desire
• Examples of second, liberal, desire
• Examples of alternatives that might be regarded
  as authoritarian but not involving custody

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Children In Conflict with the Law

• Givens
• Specialist legislation for child offenders.
• A separate Children/youth court
• Specialist protections e.g. restrictions on
  arrest, identification.
• Specialist should always deal with children
  whether they are police, social workers,
  advocates.

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Eight Key Questions when children come into
contact with the law

• At what age should children be held liable for
  their actions in court?
• To what extent should child offending be
  considered as raising care and protection issues?
• Do all children who break the law need to be
  charged and brought to court?
• Should the states power here be (partially)
  transferred to families, victims and communities?

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Eight questions

• 5. Should children actively participate in formal
  criminal processes?
• 6. Should a child ever be transferred to the
  adult criminal court for trial/sentence?
• 7. Are we consistent with best international
  practice and is our response evidence based?
• 8. What use should be made of detention
  centres/prison for young offenders?

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Film Clip Welfare v Crime

• How do you identify and assess what is more a
  welfare issue?
• Who does this?
• In this context where sits the age of criminal
  responsibility and who exactly assesses what
  welfare issues exist and how these issues are
  causative of crime.

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Restorative Justice?

• Restorative Justice seeks to balance the
  concerns of the victim and the community with the
  need to re-integrate the offender into society.
  It seeks to assist the recovery of the victim and
  enable all parties with a stake in the criminal
  justice process to participate usefully in it.

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History in NI.

• 1994 Portballantrae
• Restorative Justice Working Group
• Greater Shankill Alternatives
• Community Restorative Justice (Ireland)
• Criminal Justice Conference 1997
• Criminal Justice Review 2000
• Justice (NI) Act 2002

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Continued

• December 2003
• Evaluation 2006, Institute of Criminology and
  Justice at Queens.
• 185 conferences observed
• Structured and semi-structured interviews
• 458 ordered Now 1449 (esp last 3 months)
• 134 by PPS Vast increase 145 in 3 months.
• 324 by courts (291 last 3 months)
• 34 acceptance in Belfast courts, 90 now 5

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Evaluation

• 53 of referrals related to offences of
  intermediate seriousness against the person and
  against property.
• 23 were for serious offences and 21 for minor.
• Concerns about process of court referral and
  consent.
• Average age 16

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Queens Institute of Criminology

• The conference 75 of referrals to YCS result in
  a Conference. Both types completed in time.
• Significant number of court ordered conferences
  related to children in care!
• Victim participation rates high at 69. 70
• Divided between 40 personal attendance, 47
  attendance by a representative and 13 by
  representatives where there was no individual
  victim. Personal attendance 59 (13 GB and 50
  NZ)

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Opinions

• Victims and offenders express appreciation for
  high degree of preparation.
• Victims express overall satisfaction. 79 say
  they attended to help the offender.
• Of offenders the vast majority express a desire
  to help the victim, to hear what the victim had
  to say, to make up for what they had done and to
  be forgiven.

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Results

• Apologies expressed 87. Almost unanimous in
  those where there was an identified victim.
• Shame 77. Remorse 92.
• Contributory factors like substance abuse, family
  problems and peer pressure discussed at most
  conferences.
• After the conference 81 of offenders felt better
  and 48 of victims. This is now 90 October 2006
• 92 of offenders and 78 of victims felt the
  conference had helped them realise the harm they
  did.
• The vast majority of both victims (88) and
  offenders would recommend a conference.

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Court and PPS results

• Overall two out of three plans were approved, now
  95
• All plans returned to PPS were approved
• Most plans that were rejected were rejected on
  the basis that the offence was too serious for
  the imposition of an Order, but in some cases the
  offence was not deemed serious enough.
• Of these disposal was either by a conditional
  discharge or by a period of youth custody..
• The average time for a plan to be committed was
  67 days.

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Two views

• David Bowes Restorative Justice The Evidence.
  Justice of the Peace 168, 13th November 2004.
• Hoyle, Young and Hill. Proceed with Caution An
  Evaluation of Thames Valley Police in Restorative
  Cautioning. Joseph Rowntree Foundation 2002.

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Lord Clyde

• It is unfortunate that the name restorative
  justice is liable to be misunderstood. It is
  certainly desirable that efforts be made to
  achieve a greater understanding on the part of
  the public about the substance and the advantages
  of restorative justice.the schemes provide an
  opportunity for engagement with the community and
  should not be seen as a threat for the whole
  system. It would be unfortunate if the present
  opportunity for dialogue was missed and the whole
  range of possible methods for dealing with
  problems at a community level in a manner which
  is consistent with and which supplements the work
  of the statutory agencies was lost to Northern
  Ireland.

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Proposals

• All those concerned in the progressing of this
  recommendation are to be congratulated on the
  positive steps that they have been taking and in
  particular the readiness of all of them to engage
  in discussion. All that gives room for hope.
• Now that the opportunities have been grasped for
  serious discussion both in principle and in
  detail, the momentum should not be lost. But all
  parties must recognise the sensitivities in this
  area and the necessity for flexibility. However
  in progressing this recommendation, points of
  difference may be open to resolution as matters
  of practice rather than principle.

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Crown Court Clip Southwark

• Adult offenders. Crime of robbery. The
  difficulties experienced. Penalty imposed.
• Down case in the nineties.
• Antrim, the case of the gardener and the soldier.
• Zoe
• Death by Dangerous Driving.
• Less serious sex offences in a family context.

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Three elements of Group Conferencing

• Partial Transfer of sentencing power from the
  State, principally the courts power, to the
  community.
• The conference is a mechanism for producing a
  negotiated, community based response that allows
  welfare issue to be addressed.
• The key is to involve victims as key
  participants, without risk to them, making the
  process impact on the offender with solace for
  the victim.

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Conclusion

• Less use of courts
• Every juvenile case gets a conference
• Evaluation is essential. It seems that early
  suggestions are that re-offending rates have
  certainly not increased.
• Satisfaction expressed is high.
• NZ experience from 1989 has shown youth crime
  static despite a vast decrease in use of
  detention and a universal system of FGC together
  with a huge diversion from courts.

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Problems

• Scope for manipulation
• Effect on morale of multiple conferences
• Lack of a discretion advantages and
  disadvantages.
• Increase in age from 17 to 18 and arrival of more
  minor motoring offences.
• Need for monitoring and enforcement and
  application of resources.