MÉTODOS CONSTRUCTIVOS 35

Those who seek to find perfect philosophical coherence in New Labour’s approach to crime and welfare issues will be disappointed. Like most elected social democratic governments, New Labour’s dominant ideological convictions are diluted by a desire to satisfy competing constituencies o f interest. A close analysis of its policies and - almost equally importantly - the way in which they are presented and ‘spun’, yield a number of themes. Some of these are explored in this chapter.

Traditionally, the English criminal justice system has - albeit grudgingly on occasions - accorded children a special and protected status. The system has traditionally taken account of such factors as age, maturity and social powerlessness. This was even reflected in Home Office advice during the 1990’s, a decade that witnessed what Drakeford and Vanstone (2000) described as a ‘punitiveness auction’ between the two main British political parties. At the beginning of the decade the then Conservative government’s attitude towards the principle of doli incapax - the notion that, due to lack of maturity, children below the age of 14 years cannot be assumed to have a completely developed sense of moral agency - was described in the following terms,

“The criminal law is based on the principle that people understand the difference between right and wrong. Very young children cannot easily tell this difference, and the law takes account o f this. The age o f criminal responsibility, below which no child can be prosecuted, is 10 years; and between the ages o f 10 and 13 a child may only be convicted o f a criminal offence i f the prosecution can show that he knew what he did was seriously wrong. The government does not intend to change these arrangements which make proper allowance fo r the fact that

children’s understanding, knowledge and ability to reason are still developing. ”

(Home Office, 1990: paragraph 8.4)

Even in the middle of the decade a Conservative government gave the following advice to juvenile justice practitioners preparing court reports on young people who had been convicted of criminal offences,

" When a pre-sentence report is being prepared on a child or young person, the

report writer must take account o f section 44 o f the Children & Young Person’s Act 1933 which requires the court to have regard to the welfare o f the individual.

The UN Convention on the Rights o f the Child...also requires that all actions concerning children shall be the primary consideration. The report writer should therefore take account o f the age o f the young offender, his or her family

background and educational circumstances. ”

(Home Office, 1995:2.35)

In opposition the Labour Party foreshadowed a departure from these principles of child welfare in the criminal justice domain:

“Ultimately, the welfare needs o f the individual cannot outweigh the needs o f the

community to be protected from the adverse consequences o f his or her offending behaviour. ”

(Labour Party Media Office, 1996: 9)

The repositioning of the Labour Party on ‘law and order’ following the election defeat of 1992 was a crucial part of the New Labour Project being constructed by a younger generation of social democratic Labour politicians. The Blair-Brown generation drew selectively upon the insights developed by Left Realist criminologists during the 1980s on both sides of the Atlantic (Lea & Young, 1984; Currie, 1985) as well as the experience of the ‘renewed’ Democrats under the leadership of Clinton and Gore (Pitts, 2000). Tony Blair’s assumption of the Shadow Home Affairs portfolio allowed him to use the now famous soundbite that summarised the emergent position on law and order: ‘tough on

crime, tough on the causes o f crime although it could be argued that a more accurate

reflection of the media management strategy was ‘loud on criminals, quiet on the causes of crime’.

As has been mentioned in Chapter 1, the killing of Jamie Bulger by two ten year-old boys had a profound effect upon public opinion on crime, community and children (Clarke,

1994; Kemshall & Pritchard, 1996; Scraton, 1997). Whilst the mass media undoubtedly played a significant role in creating a climate of opinion conducive to the introduction of more punitive measures, the part played by the Shadow Home Affairs spokesperson should not be overlooked. Indeed, journalists such as Nick Cohen o f The Observer have argued consistently that Tony Blair exploited the tragedy in order to portray the atypical events of February 1993 as a more general crisis in childhood and society at large. Whether this is a fair assessment of Tony Blair’s role can be disputed, but there is little doubt that the death of James Bulger - and the public reaction to those convicted of his murder - created the conditions within which an agenda of child responsibilisation could be developed. The years leading up to the General Election of 1997 were characterised by a ‘punitiveness auction ’ (Drakeford & Vanstone, 2000) in which the Conservative government and the New Labour opposition tried to outbid one another in terms of ‘toughness’ towards young offenders and their parents. This long pre-election campaign most certainly prepared the ground for such New Labour ‘reforms’ as the abolition of

Doli Incapax.

Although the election of a Labour government has resulted in a number of child-friendly policies - most notably in the area of child poverty with the introduction of various tax credits and such community development initiatives as Sure Start - the protected status of children in the criminal justice system was eroded by the first Blair administration. Its attitude to ‘young offenders’ and those who allegedly administered the old youth justice system so incompetently was well encapsulated in the title of one of the first documents to emerge from the New Labour tenants at the Home Office. No More Excuses (Home Office, 1997a) pithily summed up its finger-wagging brand of ‘tough love’ and social authoritarianism in this area of policy. The abolition of doli incapax was one striking example of New Labour’s approach to children who offend. The presumption that children aged between ten and thirteen years do not have a fully developed sense of moral agency and, as such, cannot understand the wider implications of their criminal

actions was duly abandoned. This has effectively resulted in an untrammelled age of criminal responsibility that starts at the age of ten years. Gelsthorpe & Morris (1999) regard the abolition of this ancient principle of English law as being deeply symbolic. For them doli incapax

“...was a statement about the nature o f childhood, the vulnerability o f children and the appropriateness o f criminal justice sanctions fo r children. ”

(Gelsthorpe & Morris, 1999: 213)

This loss of protected status for children in the courts — along with other measures

contained in the legislation (Bandalli, 2000; Haines, 2000; Monaghan, 2000) - represents a process that Goldson has described as the “responsibilisation o f children ” and the

“adulterisation o f childhood” (Goldson, 2001).

The two major pieces of legislation introduced by Labour on coming to power were the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999. The Powers of Criminal Courts Act 2000 clarified and consolidated these measures. Although other important measures have since been placed on the statute book, the 1998 and 1999 Acts are those that had the greatest impact during the period of fieldwork. It has been pointed out, however, that the Labour government’s approach to youth justice did not involve major repeals or amendments to pre-existing legislation. As Monaghan observes, “Reform in this sense is sedimentary rather than metamorphic. ” (Monaghan, 2000: 146). Thus, for example,

“ ...the new legislation does not disturb the sentencing framework provided by the Criminal Justice Act 1991 and this may result in tensions and a lack o f clarity. Thus, new orders might be expected to fit into the three principal sentencing bands’, fines and discharge ’, ‘community sentence ’ and ‘custody ’. The principle o f commensurate sentencing, just deserts’, encompassing the right o f

proportionality, also remains in place. The Children and Young Persons Act 1933 provides significant principles that apply to the youth court, most notably recognising the child as being in need o f protection and establishing

arrangements fo r children that are different to, and separate from, those for adults. Such provisions, together with the ‘welfare principle' contained in section 44 o f the 1933 Act, and powerfully reflected in the Children Act 1989, that every court in dealing with a child shall have regard to that child’s welfare, are not

amended. ”

(Monaghan, 2000: 146)

The result of this is that practitioners actually retain - in law, at least - a significant degree of discretion in terms of both general judicial principles and specific statutes to apply to their practice. Their professional decisions, as will be discussed at a later stage, will obviously be influenced by agency diktat (via Youth Justice Board National

Standards) and practitioner culture. Nevertheless, as has already been pointed out, in a

very tangible legal sense, statute actually overrides National Standards and ministerial memoranda (Drakeford, 1993). In terms of constitutional theory, it is argued - and this must surely carry some weight - practitioners are still required to exercise independent professional discretion within the existing statutory framework. This is a discussion which will be revisited later in the dissertation.

The practical effects of the youth justice reforms, as embodied in the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999, are the subject of detailed analysis in Appendix 1. Nevertheless, some comment should be made about the practical effects of the new statutory framework.

The essential philosophy of the Crime and Disorder Act 1998 is enshrined in Section 37:

"1. It shall be the principal aim o f the youth justice system to prevent offending by children and young persons.

2. In addition to any other duty to which they are subject, it shall be the duty o f all persons and bodies carrying out functions in relation to the youth justice system

to have regard to that aim. ”

(Crime and Disorder Act 1998: section 37)

The first aim, “ ...to prevent offending by children and young people... ”, marks an explicit departure from the received wisdom instilled from the previous two decades. The notion that most children and young people usually went through a phase of offending and subsequently ‘grew out of it’ with minimal intervention was clearly rejected. The first aim of Section 37 is, quite clearly and very ambitiously, to prevent

young people from committing offences in the first place. The second aim, meanwhile, alludes to a more corporate, multi-disciplinary/agency approach to youth crime. The vehicles for delivering this corporate response are: local authority youth justice plans (Crime and Disorder Act 1998: section 40); the co-ordination of comprehensive youth

justice services (a continuum ranging from community safety measures to post-custodial

supervision); the establishment of multi-agency Youth Offending Teams (Crime and Disorder Act: Section 39); and the creation of a National Youth Justice Board (Crime and Disorder Act 1998: Section 41 and Schedule 2) in order to oversee the direction and administration of the whole system. As will be seen, the creation of both a corporate

and multi-agency approach to youth justice is not without inherent tensions. The

priorities of the National Youth Justice Board agenda are not necessarily those shared by the police, let alone the health service. That said, the corporate agenda is clearly

privileged in the National Youth Justice Board’s National Standards and the promotion of ‘effective practice’ guidance (National Youth Justice Board, 2002). It is also present in Sections 5 and 6 of the statute. Section 5, for example, requires the police and local authority to design and implement local ‘crime and disorder strategies’.

In terms of practitioner culture, it is the establishment of local Youth Offending Teams that most clearly institutionalises the principles of corporatism and multi-disciplinarity. Whereas previously the responsibility of working with young people who committed crime rested primarily with social workers based in Social Services Departments (usually based in Youth Justice Teams), the new Act widened that responsibility across

departments and relevant agencies. In addition to social workers, the new youth justice teams were required to be represented by staff seconded from the police, probation service, education and health. Other relevant agencies could also be co-opted. Thus, the intervening passage of time has witnessed the arrival of staff from specialist voluntary sector agencies in the fields of accommodation, substance misuse, training and

employment. As well as managing the complex inter-professional dynamics of these new institutions, it has been necessary - though in practice this has probably not happened to everyone’s satisfaction — for protocols to be developed in relation to information sharing between practitioners from the different agencies.

The two key statutes introduced a raft of new orders to an already extensive sentencing menu. As Monaghan (2000, 150-1), somewhat breathlessly, points out:

“...a child who admits, or is convicted of, an offence, can potentially be dealt with by reprimand, final warning, referral order, absolute discharge, conditional discharge, a fine, compensation order, reparation order, attendance centre order, drug treatment and testing order, curfew order, action plan order, supervision order, supervision order with requirements (at least five distinct varieties), community service order, probation order, probation order with requirements, combination order, deferred sentence and detention and training order. In addition to these, and as well as ancillary orders and driving licence penalties, the court must also concern itself with parenting orders and financial penalties against parents.... ”

Despite this bewildering choice, there are six features of the new statutory framework that should be highlighted. First, early intervention. This was evidenced in the

replacement of cautions with an abbreviated and police managed system of Reprimands and Final Warnings (the latter containing powers to put in place intervention packages) as well as the introduction of Referral Orders. The Referral Order, incidentally, effectively replaced the highly effective Conditional Discharge (Audit Commission, 1996).

Secondly, principles of restorative justice were given greater prominence in some of the Orders (Referral Orders, Reparation Orders and Action Plan Orders). Fourthly, the criminal code was effectively widened by mixing civil and criminal law; embodied in Child Curfew Schemes and, more controversially, Anti-Social Behaviour Orders. Fifthly, principles of welfare and criminal justice were conflated within the parameters of Child Safety Orders and Parenting Orders. Finally, there was a conscious attempt to blur the distinction between punitive custody and constructive community sentence with the introduction of Detention and Training Orders. ‘Constructive custody’, as it was spun, involved part of the sentence being served in the community. The way in which all of these underlying themes interweave is explored in the next section.

Although New Labour’s programme of government has been informed by Third Way philosophy (Giddens, 1998; Jordan, 2001), it would be naive to expect complete ideological coherence in its youth justice policy. This is a politically sensitive area in which Labour is understandably anxious not to surrender its territorial ground to the traditional party of ‘law and order’, the Conservative Party. The Labour government’s criminal justice policy is actually composed of a number of different strands. Some of these have already been alluded to in this chapter, but will now receive closer attention. One of the government’s ‘big ideas’ has been that of restorative justice. Restorative Justice philosophy is certainly in possession of elements that might appeal to both a Tesponsibilisation’ agenda and the welfare impulse to reintegrate offenders back into communities. Moreover, many of New Labour’s policies in the area of youth justice are presented as being consistent with restorative justice principles. In fact some might claim restorative justice is the common thread running through the key youth justice statutes of the government’s first term. Others would suggest that the Restorative Justice brand logo has merely been sprayed on to essentially punitive packages. Whichever position taken, it is a philosophy that deserves to be taken seriously by anyone studying the New Youth Justice. In order to assess the validity of the competing claims, it is therefore necessary to engage in a brief critical summary of restorative justice philosophy.

Although the movement draws its inspiration from politically dubious and over­ sentimentalised readings of Maori, Samoan and even Celtic traditions (Gelsthorpe & Morris, 2002: 243), it is important to understand that the movement has grown from the confluence of two main tributaries: ‘offender-based’ penal reformism, on the one hand; and ‘victim’-led perspectives, on the other. Consequently, it is important to understand that - as with any philosophical movement - the manifesto is contested. Tensions certainly exist between the two wings of the movement. Moreover, despite its global dimensions, the movement places great emphasis on the importance of local practice. The privileging of the ‘local’ is, indeed, consistent with a faintly romantic preoccupation with prelapsarian ‘indigenous’ cultures (Braithwaite, 1989; 1993; Braithwaite &

difficult to establish definitional precision about what constitutes ‘proper’ Restorative Justice practice. Thus, it is a relatively easy task for Morris (2002) to defend restorative justice against its critics by stating that, at best, local practices differ or, at worst, a particular model of restorative justice is a corruption of the ideal. Internal debates concerning the ideological purity of various models of restorative justice should not, however, detract from some of the very interesting and challenging ideas advanced by the movement.

Johnstone (2002) distinguishes the restorative justice approach from more formal legalistic justice in the following terms:

“Advocates ...suggest that once the facts o f a crime have been established the priority should not be to punish the offender but (i) to meet the victim's needs, and

(ii) to ensure that the offender is fully aware o f the damage they have caused to people and o f their liability to repair the damage. ”

(Johnstone, 2002: 1)

In practice restorative justice involves mediation between the victim, offender, members of the respective families, and representatives of the community. The way in which reparation can be made to the victim is duly negotiated between the various parties. The notion of restitution - of ‘restoration’, indeed - is extended to the ‘perpetrator’ of the

‘harm’. The reasons for the perpetrator committing the offence are also explored and strategies are devised to reduce the risk of recidivism. The rehabilitative ideal is embedded in a wider commitment to the offender’s reintegration into the community.

Johnstone (2002: 11-13) identifies five core themes that form the basis of restorative justice. Firstly, it is claimed that in pre-modem societies people did not draw a sharp dichotomy between ‘crime’ and other ‘conflicts’ within the community (Zehr, 1990; Bianchi, 1994). Apparently, such communities focused on specific and tangible wrongs rather than abstract ideas concerning crimes against ‘society’. This assertion risks misreading deceptively complex and sophisticated societies in which symbolism was hugely important. Bewilderingly, the significance of symbolism is acknowledged by many devotees in respect of ‘shaming’. That said, restorative justice’s emphasis on

tangible wrongs against specific victims (as opposed to abstracted notions of crime) is of central importance to the philosophy.

The second theme - which relates closely to the first — concerns the primary focus on how the victim should be helped. The victim - as opposed to the state - should therefore play an active, if not necessarily always decisive, part in how this question should be answered. Victims thus,

“ ...become more like plaintiffs in a civil law action. They have much greater control over how the wrong against them is defined and over how it should be dealt with. Hence, it is maintained, restorative justice helps to heal the wounds o f the crime suffered by the victim. ”

(Johnstone, 2002: 13)

The third theme concerns recognition of the essentially social relationship between victim