| 2 Web JCLI|
Reader in Criminology, Community and Criminal Justice Division, Hawthorn
Building, De Montfort University, The Gateway, Leicester LE1 9BH
This article draws on research which was funded by Economic and Social Research Council Grant No. L330253001 as part of the Research Priority Network entitled “Pathways Into and Out of Crime: Risk, Resilience and Diversity”. http://www.pcrrd.group.shef.ac.uk
Copyright © 2007 Jean Hine.
First published in the Web Journal of Current Legal Issues.
This empirical study draws upon data collected in two studies involving the author. The first was concerned with evaluating pilot youth offending teams whilst the second focussed on young people’s understanding of crime. In each case the data came directly from young people who had received a warning and their families. A number of issues emerged, perhaps most notably: the divergence between the interviewees’ perceptions of incidents and their agreement of the ‘facts’; the subtle pressure, from a variety of sources, which can motivate or influence an admittance of guilt; the failure of many young people to opt for legal advice; and the failure of some appropriate adults to fully appreciate their role. Applying these findings to current trends in juvenile justice policy, it is argued that more young people will be processed by the youth justice system for relatively minor acts of delinquency which the young people themselves regard as childish as opposed to criminal.
The Crime and Disorder Act 1998 signalled a dramatic paradigm shift in responding to the offending of children and young people, and in the process altered the meaning and purpose of “diversion”. Prior to this Act juvenile justice policy was underpinned by a minimalist response which essentially took the view that most young people, particularly those committing relatively minor offences, would stop offending without court sanction, and that the best way to respond to them at the start of their official “criminal career” was to give them an informal or formal caution. Once the caution was delivered, intervention with the young person ceased. The replacement of cautioning by a system of reprimands and final warnings signalled a view that more official responses were needed:
“The government is determined to ensure that the adoption of the final warning scheme sends a clear signal that offending by young people will be followed by firm action and early intervention to prevent offending.” (Home Office Letter to Chief Officers (police) 31 July 1998)
Implicit within this is the notion that young people will continue to offend without “early intervention”. Although reoffending rates for cautions were low (Home Office 1985; Hine and Celnick 2001) and youth crime was falling (Gelsthorpe 1999; NACRO 2001), policy makers were swayed by research which identified that a high proportion of crime was committed by a small minority of offenders (Home Office 1985; Wilson et al 2006):
“[We] must get to grips with the 100,000 most persistent criminals who are estimated to commit half of all crime …” (Home Office 2001, para 27)
It was suggested that this minority could be identified on the basis of “risk factors” (Bottoms 1990; Farrington 1996) and that a significant reduction in crime would be obtained from reducing the offending of these persistent/prolific offenders. The risk factor research suggested that the most prolific offenders started their offending careers at a young age, and thus the best way to do this was to change their behaviour whilst they were young. Unfortunately predicting these individuals is not as easy as anticipated, and other research has identified the large numbers of “false positive” young people (Armstrong et al 2005) at risk of being drawn into the youth justice net by this approach.
The final warning was seen as a key component of the government’s strategy for early intervention and prevention with young people – what the then Home Secretary coined as “nipping offending in the bud” (Home Office 1997, preface), though Muncie (2006) argued that this was because it fitted “prevailing ideological imperatives” (p 777) rather than the available evidence. The final warning is a sanction that combines notions of deterrence, via formal procedures that would make clear the consequences of further criminal activity, and reform, from the inclusion of a requirement for referral to the new Youth Offending Teams for assessment and a “change” programme. This latter requirement was acknowledgement that many young offenders and their families would need help, support or training to enable them to avoid offending. Thus on the one hand young offenders are seen as rational and responsible and in full control of their behaviour (to respond to deterrence), and at the same time are seen as the opposite, as not able to act responsibly without some official intervention.
When the final warning scheme was introduced the Home Office issued guidance to police forces about the implementation of the new procedures. This guidance made clear that:
“All four of the following criteria must be met before a reprimand or warning can be considered:
(a) there is evidence against the young person sufficient to give a realistic prospect of conviction if he or she is to be prosecuted
(b) the young person admits the offence
(c) the young person has not previously been convicted of an offence
(d) it is not in the public interest for the young person to be prosecuted” (Home Office 1998, p 3, repeated and reinforced by Home Office Circular 14/2006)
These requirements were the same as previous legislation relating to cautions, but there were also significant changes. As this guidance explained, the Crime and Disorder Act 1998 abolished doli incapax, removing the necessity to establish that juveniles under the age of 14 knew what they did was “seriously wrong”, but also making clear that the young person must make “a clear and reliable admission to all elements of the offence” .
The previous juvenile cautioning systems and procedures were criticised for not meeting the above criteria, particularly the first two. Puech and Evans (2001) found that police were giving cautions where there was insufficient evidence, or where offenders have not admitted an offence. They described appropriate adults being mainly passive in interviews and parents feeling under pressure to accept a warning. Since the announcement and introduction of final warnings they have been subject to much criticism on ethical, practical and theoretical grounds (eg Gelsthorpe 1999; Fionda 1999; Bateman 2002; Gillespie 2005; Dingwall and Koffman 2006), some of it based upon the research into cautions. This paper will add support to these critiques by drawing upon data collected in two studies of young people: the evaluation of pilot youth offending teams (Holdaway et al 2001) and a study exploring young people’s understandings of crime (Hine 2006). The former evaluated the implementation of all the new disposals introduced by the Crime and Disorder Act 1998, including the final warning, but primarily from the perspective of the Youth Offending Team. The latter piece of research did not specifically address questions of procedure or the final warning, being more generally interested in young people’s experience of crime. However, instances of these issues did arise in discussion. Claims to being generally representative of all practice cannot be made, but their very existence is cause for concern and suggests a need for rethinking some aspects of the warning process.
The relevant data from both projects came directly from young people who had received a final warning and their families. There has been a steady growth in work which highlights the validity of young people’s perspective on matters that affect them directly, which links to new understandings of the nature of childhood (James et al 1998). Several studies have spoken to young people about their experiences of crime and the criminal justice system (eg Hazel et al 2002; Lyon et al 2000) and present common messages which are replicated here. Importantly, these studies reflect how young people’s understanding of their behaviour is different to the understanding of adults, particularly to youth justice professionals such as the police. Young people learn that it is easiest to go along with the adult view than to resist, and thus their strategies of resistance become more subtle, for instance by telling professionals as little as possible about themselves and their behaviours, even though this may reduce their opportunities to receive help and support (Hawe 2006). This passive resistance is the sort of behaviour which leads to young offenders agreeing to a reprimand or final warning, even where they believe that they have done nothing wrong and their motives in a particular situation were different to those portrayed by the criminal justice perspective. Hazel et al (2002) highlighted young people’s frustration at not being involved in the processes that concern them where others make “uninformed” decisions about them.
“Giving in, submitting, becoming marginalized and losing power were central themes, quite contrary to the assumption of engagement and responsibility that the system hopes to achieve” (Hazel et al 2002, p 14)
They develop a model of power imbalance experienced by young offenders consisting of judicial power (courts police, etc), socio-legal power (adults over children), and experiential power (less awareness of rules in a particular situation). All three of these levels operate in tandem in the final warning process, where children are viewed as “passive recipients of ideas, knowledge or products” (Smith 2000, p 5).
The evaluation of pilot Youth Offending Teams did purposefully evaluate the implementation and impact of the new final warning scheme, and Holdaway et al (2001) noted several problems at the pilot stage. These included problems with the use of the police gravity ratings where inconsistencies were apparent even within the same force; lack of clarity about the young offender’s admission of guilt; and inappropriate advice being given to young offenders. More detailed analysis of interviews with six young people subject to a final warning throws more light on these issues, particularly in relation to the important question of guilt of the young person. In most cases young people do not deny the “facts” of the case, but they present a different interpretation of events, and deny any notion that their behaviour was “a crime”. For instance, Holdaway et al (2001) uses the example of the young person who was given a final warning for the theft of a hi-fi speaker. The circumstances of this incident as described by the young person were that he had taken the speaker from what he thought was a tip. He wanted it to do a GCSE project for school. The tip was actually the property of a recycling company. His mother confirmed the circumstances, adding that she too thought the recycling company was just a dump.
Despite this, they agreed to a final warning, and their description of the process suggests the subtle pressures that come into play when making such a decision. The mother described how she had received a message on her answering machine from the police informing her that her son was at the police station. She explained that her son had to stay at the police station overnight because there was no-one on whom she could call to mind her other children to go to the police station. When she arrived at the police station she was told by the officer that if it had been up to him her son would have been taken to court rather than being given a warning. She felt this was harsh given that in her words her son was “stupid, not bad”, explaining how her son had got involved in this offence because he had been barred from the local skating rink, and as a consequence had got involved with these local youths on the street. It appears that she felt powerless to affect the decision made by the police. Many parents described how they had been having difficulties with their child but had not been able to obtain help or support with them. Whilst they appreciated the support which came from the Youth Offending Team with the final warning they were disturbed that their child had to be officially sanctioned by the system in this way to be able to obtain this.
Some incidents were quite serious, but even here there appear to be extenuating circumstances which highlight the often difficult and complex lives which many of these young people live. For instance the schoolboy who joined some friends in stealing money from other schoolboys was estranged from his family and living in a young men’s hostel. The young woman who smashed a double glazed window at the children’s home where she was living was described as having numerous problems including only recently having moved to that home.
Such issues and confusions might have been unsurprising in the early stages of implementation of a new policy, but these same themes were also apparent in the Pathways project which was undertaken five years later. There are more final warning cases in this study and thus greater scope for analysis of the issues that emerge. The issue about alternative interpretation of events is the one which emerges most clearly.
Stephen and Squires (2004) argue that young offenders are children, and entitled to be children. The police often do not respond to young offenders’ behaviour as childish even though the young person’s description presents it as such. For example, one boy and two friends were given a final warning for trespass because they had built a “den” on an embankment which turned out to be railway property. This may have been a dangerous thing to do, but clearly the intent was childish rather than criminal. Another example is a boy who described his behaviour thus:
“I was with me mates, just used to go out. When we got bored, when there was nothing to do, we just used to go out with each other and went and bought some eggs from the shop and just go round egging windows.”
This behaviour, now seen as childish by the boy himself, is obviously a problem for the people whose windows were egged, and the example raises an interesting question about the boundary between anti-social behaviour and crime. This is the sort of act that one would anticipate would fall within anti-social legislation, but here it has been dealt with as a criminal offence.
Another boy was very incensed by being given a final warning for theft of a bicycle seat. He described it as follows:
“This bike, people had trashed it, all the wheels were bent up, all the gears and handlebars were missing and everything, all the wheels – well all the wheels were hanging off, they were all bent, the frame was near enough bent itself. Been up there for about four weeks, about a month basically...My mate needed a new seat for his BMX and he walked past and he goes “oh would you look at that”. So he started wiggling it around trying to get it off, couldn’t get it off, so I started wiggling it around and managed to pull it off and apparently they caught us on camera...so I goes “yeah, I never said it wasn’t me. I took the seat, he wanted it” and my mate went “yeah, I wanted the seat and he took it”. So we both got arrested...charged us with theft...Yeah I could understand if the bike was like a two grand bike that was sitting there in perfect condition and I just go up and whip the seat off but this bike was crap. It had just been left there. Got nothing better to do so you’re giong to stop a few kids from knicking a shitty bike seat, got nothing better to do, just sit down the police station for four hours because of a bike seat.”
This was his first offence and there appears to have been no notion that what he was doing was theft. The bike was damaged, had been abandoned and had been left where it was for a long time, so they assumed the bike did not belong to anyone. He clearly feels that the police response was extreme given the circumstances.
Another complaint from young people was that the police should not get involved in their personal disputes. For instance, a boy given a final warning for fighting said:
“[It’s] not really up to them is it? It’s not their business if we’re fighting, it’s not up to them. It’s not between them is it? It’s got nothing to do with them.”
Many of the final warnings were given for incidents of violence, and these raise several issues about guilt. Although the young people acknowledge they were part of the incident, a common complaint is that they were the victim rather than the initial perpetrator. They feel it is particularly unfair when the other party to the incident is not dealt with in the same way. For instance, one girl describes her incident as follows:
“Yeah, and I’ve always been able to keep really calm but, in Year 9, when this fight happened between me and [another girl], she slapped me across my face and I’d just had that much pressure on me - my step dad, then my sister leaving, and my mum arguing with me all the time and my two little brothers playing up - it all just built up eventually and then she slapped me and I just flipped. I just couldn’t stop...[and] everyone were egging her on, ‘go on, slap her, slap her, punch her, go on, kick her!’ And [she] did hit me, but I didn’t know what I were going to do!…I didn’t know I was going to do it, my arm just reached out, grabbed hold of her hair and I just smacked her...[because] like I’d been from Year 6 in infants, to Year 9 in comp, constantly being bullied and I’d never stood up for myself before and this was the first time I’d…My God, did I just do that, were that me?..I know that I were wrong for hitting her but I didn’t mean to hurt her as much as I did, I just meant to warn her off, whereas I know I hurt her now more than I thought I had.”
A similar story of not being the initial perpetrator emerged from another girl:
“I got jumped and then I got arrested for it...I was in town with my little sister and I was walking and then I see a girl - she used to go to [school b]. And she said to the police it was a [school a] and [school b] thing but it wasn’t. I was walking and she just attacked me for no reason, saying I had been speaking about her…That’s it, she just beat me up basically in town...And then the police come to my door and they arrested me for jumping the girl who jumped me. Yeah, they arrested me for jumping the girl - the girl who jumped me, I got arrested for it...They put me on bail until they got the camera and then they come back and said that they can’t do anything, they have to take her word against my word because there’s no evidence and she got to the police first, or something. It’s mad, and so I got arrested for something I didn’t do.”
Despite protestations of innocence, this girl did admit guilt to the police, and when asked about this by the researcher she gave a response that is not unusual, admitting to the offence as a way of getting away from the police station:
“R: [When] you were at the police station did you have to say that you were guilty at any point?
R: Because that’s what’s confusing me you see.
YP: What time did they come for me? Late, I wanted to get home, they was like, ‘did you do it?’ and I was like, ‘no I never jumped, I never jumped oh - yeah’, I was getting confused...No but if I didn’t sign I would have been in there much longer, I couldn’t be bothered.
R: And your stepdad was with you?
The case of the first girl above also illustrates further problems with the police process. The first is a time delay between the incident and police action, with the girl saying that the police did not get in touch with her until six months after the initial incident, and that in the meantime the other girl had been taunting her about a visit from the “boys in blue”.
Brookman and Pierpoint describe the importance of the presence of a solicitor for young suspects to “reduce the coercive effects of arrest and custody” (2003, p 454). They describe how the Police and Criminal Evidence Act 1984 (hereafter PACE) clearly states that young people are a vulnerable group and “prone to providing information which may be unreliable, misleading or self incriminating” and are “susceptible to interrogative suggestibility”(p 453). This vulnerability comes through from the accounts of many young people but they rarely discuss the presence of a solicitor. In fact some decline a solicitor, such as the boy who said he felt “stupid” after receiving a final warning for handling stolen goods and possession of cannabis. He declined a solicitor even though he said the articles were not his and had been passed to him when the police arrived.
Most young people talk about a parent coming to the police station, presumably acting as the responsible adult required by law, but as we have seen there are difficulties with who does this and when, and most take on a passive and acquiescent role. Pierpoint (2006) describes the rights and role of the appropriate adult as being to actively intervene to protect the young person, but this is rarely the situation described by the young person. This is so even where the appropriate adult is a social worker, a professional who might be expected to understand the importance of that role. Two examples of this in the Pathways study were both instances where the incident being processed related to the young person’s behaviour in a children’s home. In such situations the social worker might be torn between concern for their colleagues and departmental policy, as much as the well-being of the young person. Or it may be that things have not improved since Brown’s (1997) review of PACE which found that social workers generally had not been given training in the appropriate adult role. Pierpoint argues that the rights of a young person will be better protected by a solicitor (2006, p 232), though there is little evidence of this from the Pathways study. It may of course be that those who had a solicitor were less likely to receive a final warning, and thus were not part of the study, but it is more likely that the young people and their parents are not aware of the potentially damaging consequences of a final warning and accept them too readily.
The youth justice system in England and Wales appears to start from a presumption of guilt rather than innocence, no doubt fuelled by the increasing criminalisation and demonisation of children and young people apparent in both policy and the media. Certainly it calls into question the abolition of doli incapax, which required proof:
“[Beyond] reasonable doubt that the child not only did the act in question, but that he or she knew that what they were doing was seriously wrong, rather than just naughty. …The Government believes that in presuming that children of this age [under 14] generally do not know the difference between naughtiness and serious wrongdoing, the notion of doli incapax is contrary to common sense.” (Home Office 1997, paras 4.0 – 4.5)
The evidence here is that the boundary between “naughtiness and serious wrongdoing” is certainly not clear cut in the eyes of young people, nor for that matter to the police. We see from the examples given here that young people do not generally deny the act, but that they do question the interpretation of events and frequently deny criminal intent behind their actions. The system no longer allows them to be children with childish intent, but rather views them as potential serial offenders who must be stopped at the earliest opportunity.
It is not without irony then that research is starting to show how the responses of the criminal justice system itself may actually make young people more likely to reoffend than less. Kemp et al (2002) found that the type of action taken in response to young people’s offending was a significant indicator of likelihood of reconviction. This was an important factor over and above the possible influence of age, gender, occupation, offence type and seriousness and rate of offending. In that study 70% of those who were prosecuted were reconvicted within two years compared with 27% of those who were given an “instant disposal” such as an informal warning or caution. From their more detailed analysis they found that those dealt with formally early in their criminality were more likely to commit further offences than those dealt with in other ways. These findings are mirrored by more recent research in Scotland (McCara and McVie 2005), where the Edinburgh Youth Study has found that “adversarial contact” with the police is a significant indicator of future offending.
In relation to final warnings themselves the evidence in favour of more intervention is tenuous. Hine and Celnick (2001) found no difference in reoffending between those who had a “change programme” and those who didn’t, between those assessed as needing one and those assessed as not, and between those who complied with the requirements of the programme and those that didn’t. The assessment of a young person undertaken by the Youth Offending Team starts from the assumption that the young person will reoffend without an intervention, indeed a key target for teams was to deliver a programme to 80% of young people given a final warning. The reality is actually the opposite with few of these young people being likely to reoffend. It is well established that around 70% of those given a caution did not reoffend. The latest figures show that overall just 27% of young people given “pre-court disposals” reoffended within a year (Whiting and Cuppleditch 2006). Those given a pre-court disposal with no previous sanctions had a reoffending rate that was even lower at 23%. Given that almost half (44%) of all young offenders fell into that category, a question must be asked about the value of the emphasis on intervention. This study also reveals an increase of 7% overall in the number of young people dealt with by the youth justice system between the first quarter of 2000 and the corresponding period in 2004. The increase in pre-court disposals was greater at 8.5%, lending support to the argument that the new system would lead to more young people being drawn into the system. This is particularly worrying in the light of the evidence above about the dangers of drawing young people into the system. Perversely the new approach may actually increase young people’s propensity to reoffend. It is well known that the more previous convictions and sanctions an offender has the more likely they are to reoffend. When the more contact with the youth justice system a young person has, the more likely he or she is to have further contact we must at least ask the question whether that contact with the youth justice system is itself a risk factor. In the dash to reduce the prolific offending by the few, we may be increasing the offending by the many, and have found another “cure that harms” (McCord 2003).
Many writers have argued that “criminal justice processes disproportionately impact upon the poor, marginalized and excluded” (Garside and McMahon 2006, p 3; Stephen and Squires 2004; Muncie 2006). This is clearly apparent from the stories of the young people involved in both of the studies represented here. Areas of high crime also tend to be areas of high deprivation where the poor and the marginalized live. These are the locations where young people are more likely to become involved in anti-social or criminal behaviour because of lack of facilities and resource. They are also the locations that are likely to reward policing activity in terms of meeting offences brought to justice targets (HM Government 2004). As the anti-social behaviour legislation criminalises more and more of the behaviour of young people, the boundary between the criminal and the anti-social becomes fuzzier and fuzzier. As these processes conspire, the likelihood is that more and more young people will be arrested and formally processed by the youth justice system for behaviour that is “child like” and lacking criminal intent.
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