| 2 Web JCLI|
Reader in Law, Sussex Law School, The Sussex Institute, Essex House 1 / 2,
University of Sussex, Falmer, Brighton, BN1 9QQ
Reader in Law, Department of Law, De Montfort University, The Gateway, Leicester LE1 9BH firstname.lastname@example.org
Copyright © 2007 Laurence Koffman, and Gavin Dingwall.
First published in the Web Journal of Current Legal Issues.
In light of what the authors assert is a more punitive diversionary strategy after the Crime and Disorder Act 1998, this paper addresses a number of penological issues associated with reprimands and warnings. The first relates to the concept of ‘diversion’ itself: can one seriously talk of reprimands and warnings as ‘diversion’ when the majority of offenders in this age group are dealt with in this manner? Attention is then given to whether there is a clear theoretical basis for the use of reprimands and warnings. After concluding that there is not, the case is advanced for using proportionality to determine which form of diversion, if any, is appropriate in any given case. Finally, the authors argue that, at the same time that diversion has become more punitive, its scope has also expanded given the extensive use made of ASBOs as a response to juvenile offending. Increases in the scope and punitiveness of diversion cannot be justified on grounds of proportionality which raises serious questions about the future of juvenile justice.
The term ‘diversion’ has been used as a convenient shorthand for a wide range of decisions, measures and strategies which lead to the avoidance of offenders being dealt with through the formal processes of prosecution, trial and sentence. Diversion can occur at various stages in the formal criminal justice process (see Harding and Koffman 1995, pp 46-7; Muncie 1999, p 275), and in ways which are specific to particular types of offender and offending, but perhaps the most frequently cited example of diversion is the policy of trying to prevent young offenders from entering the gates of the formal criminal justice system for the first time, when they have committed relatively minor breaches of the criminal law.
In England and Wales, the traditional ‘formal’ mechanism for diverting young offenders from court was the caution. Its use expanded considerably, on a non-statutory basis, from the late 1960s onwards (for a brief history, see Dingwall and Harding 1998, chap 6; Gelsthorpe and Morris 1994; Muncie 1999, pp 279-284). Although the use of the caution as a formal alternative to prosecution for young offenders can be explained on a number of different grounds, it clearly reflects two widely held and justifiable beliefs. First, it is acknowledged that a large proportion of crime is committed by young people: for example, in England and Wales, crimes by young offenders represented approximately 6.5% of all recorded offences in 2002 (House of Commons Committee of Public Accounts 2004, p 1). Padfield (2002, p 403) though claims that “it seems likely that quarter of all crime is committed by those under the age of 18”. Second, it is believed that the majority of young offenders will attain greater maturity eventually and outgrow their law-breaking, if they are not adversely ‘labelled’ and confirmed in their criminal identities. There is evidence that a large proportion of those who are dealt with by the criminal justice system start their criminal careers as young people, with a relatively small number going on to become persistent adult offenders. Responses to youth offending are, therefore, of immense strategic importance, if we are to avoid measures which make it difficult for young people to outgrow their offending behaviour.
This paper addresses the important issue of whether the diversionary strategies employed in England and Wales provide a proportionate response to minor acts of delinquency by young offenders. It has been argued that cautioning lacked a coherent theoretical basis (Tutt and Giller 1983) which led to considerable disparity in its use between police areas (Ball 2004; Ditchfield 1976; Wilkinson and Evans 1990). There should, however, be an important issue of proportionality involved in such decisions. The use of the formal criminal justice system is a response which has to be justified not only in terms of cost and resources, but also in terms of fairness (Lord Falconer 2006, p 12). It is unjust to respond to minor transgressions, committed by those in an age group where such misconduct is commonplace and may reflect little more than their immaturity, by the use of formal procedures and measures which are disproportionate to the offending conduct.
On the other hand, it has been argued that the diversion of young offenders under more formal procedures such as cautions should also provide an opportunity for censure, and for what can be described broadly as a ‘punitive’ response. It has been claimed by some that the caution was too much of a ‘let off’, with cautions being used repeatedly for the same offenders. This view was expressed by Lord Bingham in the Durham Constabulary case ( UKHL 21 at ):
“[A] significant number of persistent young offenders were cautioned time after time… the procedure did not achieve its intended object of stopping young offenders in their tracks before they had time to become habituated to a life of crime.”
In fact, it has been pointed out that the available evidence from Home Office research contradicts this view, in that “only eight per cent of a sample of offenders cautioned in 1991 had more than two cautions” (Ball 2004, p 176). It is submitted that the pursuit of penal populism by successive Home Secretaries since 1993 has led, at first, to a tightening up of the guidance on the use of cautions (Home Office 1994) and later, under the Crime and Disorder Act 1998, to a more punitive, statutory scheme to replace the caution with reprimands and warnings (Morris and Gelsthorpe 2000, p 22).
Although the argument here concentrates on issues of proportionality, the belief that young offenders should be treated differently from adult offenders can also be advanced on utilitarian grounds. This policy is promoted both by domestic law and international conventions (see Lady Hale’s speech in R v Durham Constabulary and Another ex parte R  UKHL 21 at ). By supporting alternatives to prosecution for young offenders there is an explicit recognition that the formal processes of a criminal trial and punishment are frequently self-defeating, and are likely to cause stigma and emotional harm; the criminal justice process itself is believed to be both damaging and criminogenic.
This paper will start by examining what exactly is meant by the term ‘diversion’, before going on to consider its relevance and applicability to the ways in which young offenders can be dealt with under the legislative reforms and strategies of New Labour. This analysis will include a discussion of the underlying justification for dealing with a large proportion of young offenders outside the formal criminal justice system, and the consequences of these practices for our criminal justice process. In particular, it will be questioned whether the various diversionary measures represent a just and proportionate response to youth offending: that, far from being a ‘let off’, diversionary strategies may often lead to a disproportionate response to relatively trivial offending and may have a deleterious effect on those dealt with in this way.
The word diversion, literally, means a detour or way round an expected or more direct route; i.e. a change from an anticipated or ‘normal’ direction. This definition at once raises interesting questions about the use of the term in the context of the criminal justice process. In relation to the criminal justice process, is there an ‘expected’ route for young offenders to take? It is clear that the processes of prosecution, trial and sentence are not mandatory under our criminal procedure and a good deal of discretion exists for dealing with offenders in other ways which take into account the public interest (see Ashworth 1987; Dingwall and Harding 1998, pp 120-126), the culpability of the offender and any individual mitigating factors, the need (if any) for punishment, and the interests (where relevant) of the victim. In view of the selective (and increasingly restricted) use of prosecution, trials, and judicial sentencing of young offenders, is it meaningful to talk about measures such as reprimands and warnings as ‘diversion’? Arguably, the expected or anticipated route for the majority of young offenders today is not to be dealt with by the formal court system, but rather by a variety of decisions and measures which do not have the same level of public scrutiny as a criminal trial. This is usually justified on the basis that they are being dealt with more leniently, or avoiding prosecution and punishment. These measures are often portrayed in some sections of the media, and by politicians, as a ‘let off’, for which the young offender should be grateful.
Yet these alternatives, which are today the expected or anticipated route for the majority of young offenders, have not been subjected to the same level of analysis and debate as the formal processes which represent the more traditional responses of the criminal justice system. Current responses to youth offending raise, inter alia, important justice issues which need to be addressed. It is not sufficient simply to argue that these measures serve the interests of expediency and administrative convenience, as the Prime Minister did recently when promoting his initiatives for criminal justice reform by extending summary justice (Blair 2006):
“You have to give the police [further] summary powers. We cannot keep having these delays in court, because in the meantime, if there's no action, people feel depressed, worried, frightened and intimidated.”
Instead of this pragmatic approach, with its populist promise to “bring justice down to street level” (Blair 2006), there needs to be a more thoroughgoing review of alternatives to prosecution, trial and sentence, so as to ascertain the extent of their adherence to the requirements of a just system. These requirements include both formal notions of justice, such as due process considerations, and substantive issues such as proportionality and autonomy. It is appropriate to consider the extent to which the pursuit of justice has been subjugated to the more pressing demands of the populist punitive agenda of successive governments since the early 1990s (Baker and Clarkson 2002, pp 93-97). This populist approach is reflected in recent government reports by the repeated emphasis placed on the need for “public confidence” in the criminal justice system (Lord Falconer 2006), in the absence of any coherent discussion of whether this “confidence” is based on a genuine understanding of the competing issues (Hough and Roberts 2004).
This has certainly been the case in the context of sentencing adult offenders, where the Criminal Justice Act 1991 represented the high-water mark of the proportionality or ‘just deserts’ approach (Koffman 2006a). This legislation, regarded as one of the most important enactments on sentencing in the twentieth century, sought to provide a more coherent framework for sentencing discretion, focussing the minds of sentencers on the just deserts of the offender as the consistent starting point in most cases. However, the rapid retreat from this well-researched and principled policy in favour of criminal justice and sentencing policies which reflect a greater concern about public protection and less emphasis on ‘justice’ has raised a number of important issues. In relation to sentencing, proportionality is no longer such a dominant principle (Criminal Justice Act 2003, s 142). Other recent policies and initiatives are also inimical to the idea of a just and proportionate response to youth and other offending (Morris and Gelsthorpe 2000, pp 23-24).
The twelve years which separated the two major Criminal Justice Acts of 1991 and 2003 saw a shift from a ‘rights’ or justice-based approach to criminal justice (which looks back at offending behaviour) to a greater concern with risk-based policies (which involve a preoccupation with future offending and potential dangerousness). This is evident both in sentencing policy and practice, and in legislation such as sections 224-229 of the Criminal Justice Act 2003, which includes special provisions for dealing with ‘dangerous’ offenders (Ashworth 2004a, p 526).
It is highly questionable whether the public are, in fact, better protected and more secure as a result of successive enactments on criminal justice since New Labour gained power in 1997. But, what is undeniable, is the fact that youth offending, anti-social behaviour, the plight of victims, and the perceived inadequacies of the sentencing powers of the courts are all high on the political agenda. The government claims that anti-social behaviour and criminal conduct can be curtailed by its tougher approach, and it has sought to avoid any accusations that it is ‘soft’ on crime (Downes and Morgan 2002, pp 291-291; Morris and Gelsthorpe 2000, p 22; Lord Windlesham 2001, pp 61-73). In respect of its youth justice policy, which aimed to be simultaneously ‘tough on crime and tough on the causes of crime’, New Labour demonstrated its ‘third way’ approach to criminal justice, which took the form of communitarian populism (Brownlee 1998; Hopkins Burke and Morrill 2002; for an introduction to communitarianism see Etzioni 1995). There can be no doubt that there are inconsistencies within its flagship Crime and Disorder Act 1998 (Fionda 1999), nor that this legislation polarised opinions amongst experts (see Dignan 1999 for a more favourable evaluation). Puech and Evans (2001, p 804) have described the Act as “punitive and controlling in principle and in practice” and also argue that under the new reprimands and warnings scheme ‘crime control’ values takes precedence in police decisions over ‘due process’ values. The increasing punitiveness of the government's approach to youth crime has also been criticised by the Commissioner for Human Rights (Commissioner for Human Rights 2005, para 81) on the basis that:
“[Juvenile] trouble-makers are too rapidly drawn into the criminal justice system and young offenders too readily placed in detention, when greater attention to alternative forms of supervision and targeted early intervention would more effectively straighten the errant, rehabilitate the convicted and consequently reduce youth crime.”
What needs to be considered, with some urgency, is whether the important reforms to the cautioning system under sections 65-66 of the 1998 Act, and other recent measures, have compromised the pursuit of a just and proportionate response to youth offending, and whether there is today sufficient accountability for crucial decisions which are made outside the formal criminal justice process. In doing so, it is submitted that a broader view of what has conventionally been termed ‘diversion’ is required. It is also necessary to treat the term ‘diversion’ with some circumspection, as it is apt to mislead. Dingwall and Harding (1998, pp 1-2) comment that:
“[The term diversion] is pleasingly and usefully concise and does possess some explanatory force, but it is also a concept which needs to be handled carefully and its definition is a matter of some importance. In particular, it suggests a certain norm and prioritisation as regards responses to criminal offending: that is, a formal and official process of prosecution, trial and sanctioning…But this idea of the centrality of formal criminal justice may be misleading, not only because many rule breakers do not experience the process but also because in many instances its use would not have been seriously contemplated in the first place. “Diversion” may be an appropriate description of what happens to those offenders for whom there is a conscious decision not to use the formal process of prosecution and trial in cases where there is a fair expectation that it would otherwise have taken place. But it is less properly applied to convey the idea of what happens to those offenders who are customarily and as a matter of principle dealt with outside the conventional parameters of formal criminal justice, for instance by non-State agencies or by non-repressive procedures and measures. “Diversion” begs the question of the norm: from what is the offender being diverted?”
This problem is particularly evident in the context under discussion because, as noted, for the majority of less serious youth offenders, the formal criminal justice process is not their normal or expected route. Accordingly, it is debatable, firstly, whether cautions, reprimands and warnings are truly diversionary and, secondly, whether young offenders should be grateful for a quick and informal disposal of their cases outside the criminal court system.
Instead, young offenders should be aware of the various ways in which these less formal processes might adversely affect their future lives and place them at a disadvantage in the event of any future contact with the criminal justice system. In other words, if the wrong pathway is taken at an early stage in their dealings with the criminal justice process, it may well preclude other options being available at a later stage, or at least reduce the probability of some more favourable options being available for dealing with them. It may also increase the severity of any penal response which the young offender may face in the future should he or she re-offend.
This is not to deny that some alternatives to prosecution may offer a proportionate and constructive response to youth offending, if used selectively and with proper safeguards for due process. The vast majority of crimes committed by young people are not serious, and for many young people law-breaking is a transient activity. However, there needs to be clarity about why such measures are appropriate for the offending behaviour in question. There is little difficulty in accommodating reprimands and warnings within a proportionality framework; indeed this is the logical interpretation of Lord Bingham's speech in the Durham Constabulary case ( UKHL 21 at ):
“There were always, of course, some cases which, although disclosing a breach of the criminal law, were so trivial as to be properly ignored or dealt with by way of informal and unrecorded advice or admonition. But there were other cases which were too serious to be dealt with in that way but not so serious as necessarily to call for prosecution.”
The use of unofficial cautions, which are not dealt with under the 1998 scheme, and reprimands and warnings can be justified as a fitting response to relatively trivial offending where the offender accepts his or her guilt, and can be used to reflect the differing levels of culpability.
As with the old system of cautioning, a police officer will continue to make decisions based on proportionality when deciding whether to issue a reprimand or warning, as he will continue to judge some matters to be too trivial to justify a reprimand or a warning and others serious enough to warrant prosecution. It has been argued (Dingwall and Harding 1998, pp 19-25) that despite diversionary mechanisms operating in place of prosecution, trial and sentence, they can still be used in a way which provides a proportionate response to less serious offending, and that such measures need not be inconsistent with the principles of limited retributivism. Moreover, the 1998 Act implicitly recognises such an approach by introducing a distinction between reprimands and warnings, and explicitly by directing that where “the offender has not been previously reprimanded, the constable shall warn rather than reprimand the offender if he considers the offence to be so serious as to require a warning” (Crime and Disorder Act 1998, s 65(4)). The criterion of offence seriousness is central to the operation of a proportionality approach to sentencing (Koffman 2006a, pp 281-282; Von Hirsch and Jareborg 1991).
It is important to identify a coherent rationale for alternatives to prosecution, rather than some vague appeal to administrative convenience, so as to preserve the entitlement of the young offender to due process. A failure to address important ‘justice’ considerations was one of the reasons the welfarist approach to youth offending fell out of favour from the 1970s onwards. However, this retreat from welfarism resulted in more young offenders receiving custodial sentences, as well as a growing use of cautions (Ball 2004, p 172; Newburn 2002, p 552). This could be achieved by giving prominence to an assessment of offence seriousness, and a clearer articulation of the fact that there is no logical reason why a ‘justice’ approach should be synonymous with a more punitive approach. The principles of limited retributivism place an objective limit on the amount of punishment to be imposed, and restrict the pursuit of utilitarian aims, helping to safeguard fairness and fundamental rights (Ashworth 2004a, pp 526-530).
It might be objected that the use of alternatives to prosecution lack the visibility of the more formal criminal justice processes, and therefore fail to provide the necessary element of public condemnation of the offending conduct and the offender's culpability (Von Hirsch and Ashworth 2005, pp 29-30). However, such an objection would be misconceived. The element of denunciation of offending conduct may well be an important function of punishment, but this does not necessitate the individual's public condemnation. The element of ‘censure’ may be achieved by the sanction, in whatever form it takes, making it clear to the offender that the conduct was unacceptable (see Dingwall and Koffman 2006). It is submitted that there is little to support an argument that alternatives to prosecution fail to convey to the offender the wrongfulness of his or her conduct. Further research on how offenders perceive alternatives to prosecution would undoubtedly be useful, but from the limited evidence available it appears that offenders and the police viewed cautioning (Lee 1995) and continue to view reprimands and warnings (Puech and Evans 2001, p 804) as inherently punitive processes.
It has been argued by two leading proponents of limited retributivism that a case can be made within the proportionality model for less severe penalties for young offenders (see Von Hirsch and Ashworth 2005, pp 43-4). Their argument is that a reduction of the severity of punishment for young people is not simply to serve utilitarian ends by minimising the harmful consequences of the criminal justice process itself, but rather that “it is appropriate to judge juveniles by a less stringent standard” (ibid, p 47) because of the difficulties faced by this age group in first coming to terms with making their own decisions and leading autonomous lives. In other words, youth is a transitional period in an individual's life, and one which involves a certain amount of experimentation, and society should not judge the resulting mistakes that are made during this period as harshly as it does the wrongdoing of adults.
An interesting corollary of this thesis is that, as a generic allowance should be accorded to all young offenders by virtue of their age and relative immaturity, it is not to be applied selectively for the benefit of certain types of young offender whilst being denied to others (ibid, p 46). In short, this thesis can be commended for advocating an approach to youth offending which emphasises the need for proportionality, and reconciles this policy with a coherent case for less severe penalties than would be applicable to adult offenders. Moreover, it does so in a way which can be reconciled with a rights-based, justice approach, without resort to the more commonly advanced utilitarian arguments which can too easily be sacrificed in the pursuit of communitarianism and populist punitivism with their emphasis on the impact of youth offending on victims and local communities.
A problem in applying the above arguments to the decisions and measures which, in practice, are now frequently used to deal with youth offenders is that recent legislation has made a rights-based approach more, rather than less, difficult to achieve. There is a certain irony in the fact that at around the time the incoming New Labour government was claiming to have brought rights ‘home’ in the form of the Human Rights Act 1998, it was also putting procedures in place under the Crime and Disorder Act 1998 which, it can be argued, conflicted with these important rights (Dingwall and Koffman 2006). This claim will be examined in relation to certain key measures introduced by the government within its first two years in office.
The reform of the cautioning system for young offenders introduced a new scheme of reprimands and warnings, which was intended to be stricter and more onerous in its operation. A perceived, and often overstated, weakness of the old system was that it did not preclude a caution being given to an offender on more than one occasion (Home Office 1997, para 5.10). This was tackled by the inclusion of such a prohibition under the new reprimands and warning structure. Under the new scheme, an offender may be reprimanded only if he or she has not been previously reprimanded or warned. A second reprimand is not permissible, but an offender can be given a warning for a further offence or where a first offence is too serious for a reprimand. After receiving a warning, a person cannot be given a reprimand or warning if they commit a further offence (Crime and Disorder Act 1998, s 65(2) and (3)), unless the subsequent offence is not considered serious and occurred more than two years after the warning was given (Crime and Disorder Act 1998, s 65(3)(b)). Thus, the statutory scheme creates a clear presumption in favour of prosecuting a young offender who has previously been reprimanded and warned. If the further offence is very trivial indeed, it might be argued that a prosecution is not mandatory, and might still be eschewed in the public interest. But, in the majority of cases, a further offence will result in prosecution, regardless of its seriousness. This policy seems to ignore the possible benefits of a further warning in a small number of cases, in its desire to be seen to be getting tough on young offenders. The inflexibility of the new scheme was criticised recently by the Chair of the Youth Justice Board, who warned the new Home Secretary, John Reid, that youth courts are becoming inundated with petty cases as a result of the police losing the discretion to deal with them informally (The Guardian, 26/6/06).
When a warning is given under the new scheme, the case is now to be considered by a youth offending team which will then assess the offender and, unless it is thought inappropriate, it will arrange for him to take part in a ‘rehabilitation programme’ (Crime and Disorder Act 1998, s 66(2); see further Home Office 1999). Once again, the necessity for this reform can be exaggerated as many areas operated ‘caution plus’ schemes prior to the Crime and Disorder Act 1998. However, under the previous informal schemes, there was less element of compulsion for rehabilitative and restorative measures to be given to those who avoided prosecution.
A problem with the new presumption that a young offender will be considered for a rehabilitative programme is that this will frequently be too severe a consequence for a relatively minor offence. In one evaluation of the new structure it was stated that many young offenders and Youth Offending Team workers found the warning system to be “arbitrary, unfair and disproportionate, especially as it may involve compulsory participation in a rehabilitation (change) programme” (Puech and Evans 2001, pp 804). In a more recent study, it was found that (Fox et al 2006, pp 137-138) “[the] process that propels young people further into the system, net widening, disproportionate and wholesale responses, all occur to varying degrees during the new final warning scheme”.
As noted earlier, there are serious concerns about such important decisions being taken as a result of an administrative process, in which the police determine both the guilt of the young person and, effectively, the disposal of the case. If the informality and lack of due process of such procedures could ever have been defended in the interests of convenience, and on the basis of the relatively minor adverse impact on young offenders, it would be irresponsible to advance such an argument under the new scheme. Reprimands and warnings (as with cautions) are recorded in police and other social service files. Moreover, a reprimand or warning (or even a failure to participate in a rehabilitation programme arranged under s 66(2)) may now be cited in future criminal proceedings, in any court, as part of a person’s record for sentencing purposes (see s 66(5)). The consequences of being warned go further in that a person is unlikely to avoid prosecution if they commit a further offence; and, if he is convicted of a further offence within two years of the warning, he is precluded from receiving a conditional discharge unless there are exceptional circumstances to justify such a disposal (s 66(4)). As illustrated in the recent Durham Constabulary case, which involved a fifteen-year-old youth who received a warning for indecent assault, the consequences may be even more far-reaching for certain types of offender. In this case, the claimant was placed on the police national computer and on the sex offenders register. As Lady Hale acknowledged in the case ( UKHL 21 at ) “reprimands and final warnings do carry consequences… Cumulatively…they amount to a considerable modification of the child's legal status”.
The House of Lords reversed the decision and held that the warning did not involve the determination of a criminal charge within the meaning of Article 6 of the ECHR, as the police officer did not have to determine the suspect's guilt, but merely to decide whether the public interest was served by a warning rather than by prosecution. It was argued that the determination of a criminal charge must involve at least a possibility of punishment for the offender, and that a process (such as in this case) which can result only “in measures of a preventive, curative, rehabilitative or welfare-promoting kind” (per Lord Bingham,  UKHL 21 at ) will not usually satisfy this test (although see the doubts expressed about this, in relation to the instant case, by Lady Hale  UKHL 21 at  and ; for a discussion see Dingwall and Koffman 2006). Despite the warning being recorded on the police national computer, and the claimant being included on the sex offenders register, and the fact that he would face a higher penalty if he were to re-offend, the House of Lords did not regard the outcome as either a determination or public declaration of guilt. As the process did not involve the determination of a criminal charge, it was argued that the “fair trial rights [of the claimant] were not engaged” (per Lord Bingham,  UKHL 21 at ). Of particular relevance to the present discussion is the acknowledgement by Lady Hale that the lack of flexibility in the reprimands and warning scheme is inconsistent with the objective of “diverting” children from the criminal justice process, and that it “seriously risks offending against the principle that intervention must be proportionate both to the circumstances of the offender and of the offence” ( UKHL 21 at ).
This challenge to traditional legal procedures and safeguards is also evident in another recent tendency in government policy; namely the blurring of the distinction between conduct which is a breach of substantive criminal law, and that which is more widely, and vaguely, described as “anti-social”. Section 1 of the Crime and Disorder Act 1998 introduced the controversial Anti-Social Behaviour Order (ASBO). Anti-social behaviour is widely defined in the Act as acting in a way that causes or is likely to cause “harassment, alarm or distress” to one or more persons who are not of the same household as the perpetrator (Crime and Disorder Act 1998, s 1(1) (a)). The subjectivity and vagueness of this definition have been noted by many critics, who have pointed out that interpretation and enforcement of this provision leaves too much discretion to local crime reduction partnerships (and others who can apply for ASBOs), which in turn results in differential application and injustice (Brown 2004).
Anti-social behaviour orders have been criticised for their failure to comply with accepted standards of justice and due process (Ashworth 2004b; Brown 2004; Koffman 2006b). The process for imposing an ASBO is classified as civil, not criminal, yet a breach of an order may be punished with up to a maximum of five years' imprisonment (Crime and Disorder Act 1998, s 1(10)(b)). The House of Lords rejected a legal challenge that an ASBO was criminal in character in R (on the application of McCann) v Manchester Crown Court  UKHL. McCann established that hearsay evidence may be used in proceedings, so as to avoid distress and the fear of reprisals to victims and witnesses. Prohibitions contained in orders are usually very extensive and may go way beyond the alleged offending conduct (Hopkins Burke and Morrill 2002, p 12). As one critic observed, “very detailed, excessive or simply unenforceable prohibitions are not uncommon” (Burney 2005, p 94). A breach of an order may lead to imprisonment for conduct which would not, by itself, result in such a severe punishment. Indeed, the conduct may not amount to a substantive criminal offence per se. Interim ASBOs may be imposed on recipients (Police Reform Act 2002, s 65), pending a full hearing, on the flimsiest of evidence (Koffman 2006b, p 607).
Although ASBOs can be imposed on anyone over the age of ten, there is overwhelming evidence that they are used most frequently in relation to children and young people (Burney 2005, p 97; Campbell 2002, p 8; Koffman 2006b, pp 599-600; Squires and Stephen 2005, p 4) despite the fact that the official Home Office guidance on the use of ASBOs originally suggested that orders should be made in relation to children only in exceptional circumstances.
Of particular concern, especially in relation to the way young people are dealt with, is the tendency for the ASBO procedure to be used by the police instead of prosecution for relatively low level, but persistent, offending (Padfield 2004, p 713). This means that the rights of accused persons are not as well protected as they would have been under the criminal process, due to the government's creation of “strange legal hybrids” to circumvent established safeguards (Ashworth 2004b, p 272). In practice, it is often difficult to maintain a clear distinction between criminal behaviour and more general anti-social or disorderly acts, as a number of young people are responsible for both types of misconduct (Koffman 2006b, p 601). In a national study of ASBOs by the Home Office, it was found that a high proportion of ASBO recipients frequently had an established history of committing substantive criminal offences before an ASBO was imposed (Campbell 2002, p 18), and this is supported by more recent research which looked at the use of ASBOs in a local area (Koffman 2006b, p 601). However, the issue here is that a new procedure has been created which effectively circumvents the criminal process, by the imposition of a civil order, which can then lead to breach proceedings in the criminal courts with the threat of disproportionate penalties.
Despite the disingenuous designation of anti-social behaviour measures and procedure as civil, rather than criminal, it is evident that the government's strategy has now established a new route for dealing with a wide variety of relatively (but not invariably) low-level offending and disorderly conduct (Brown 2004, p 208). Enforcement of the relevant legislation is the responsibility of crime and disorder reduction partnerships or multi-agency community safety teams, both of which include the police (for further details of these partnerships, see Campbell 2002, pp 21-23). Once again, this policy raises serious questions about due process considerations and the proportionality of responses. It bestows a wide discretion on the part of enforcement agencies as to how they decide on local priorities, how they interpret the relevant legislation and guidance, and the use they make of alternative forms of action. This is a major concern given the large variations in the use made of anti-social behaviour measures from one area of the country to another.
In effect, when faced with low-level youth offending and anti-social behaviour, enforcement partnerships now have a number of alternatives at their disposal. They may respond with a purely informal warning as to future conduct. For more persistent misconduct by young people, an Acceptable Behaviour Contract (ABC) might be agreed with the offender and his or her parents (Campbell 2002, p 39; Koffman 2006b, pp 596-597). In more serious or persistent cases, or where an ABC has broken down or been breached, an ASBO application might be made, which will frequently start (if the application is successful) with an interim order. If so, considerable restrictions may be imposed upon a young recipient, with the threat of serious penalties for breach of an interim order, without a full hearing of the case. In turn, a ‘full’ ASBO will usually be sought by the crime reduction partnership. As an alternative, or simultaneously, a young person may also be dealt with through the ‘criminal’ route. The police may decide whether or not to issue a reprimand or warning or, where the offence is more serious, the case may be passed on for a decision to be made about prosecution. In addition, action may be taken against the young offender’s parents, either by prosecution, e.g. for truancy, or eviction from public or social housing. Paradoxically, a young offender may well be dealt with more leniently under the criminal process for, if he re-offends, the subsequent offence may well be dealt with by means of a more lenient measure than a custodial sentence. In contrast, if a young person breaches a civil order and/or re-offends he has a considerable likelihood of a receiving a custodial sentence. It seems that if a young offender is dealt with through the anti-social behaviour route, it enhances his or her chances of receiving a custodial sentence for any subsequent offences.
From this brief outline, it is evident that there is a wide variety of responses available in relation to offending and anti-social behaviour by children and young people. If this were to lead to a more constructive approach of avoiding the criminalisation of young people, the different options might be more defensible. In practice, their availability is a prescription for inconsistency, and perhaps even prejudice (Fox et al 2006, p 136). Some responses allow an effort to be made to address the causes of offending and anti-social behaviour, but it is difficult to gauge how thorough or effective this is. Of most concern, is the scope for differential treatment of similar types of conduct, depending on the locality in which it occurs and on the priorities of the particular crime reduction partnership, and the local police and council. There is the very obvious danger of disproportionate punishment for less serious offending and disorderly conduct, as the breach of a civil order may be dealt with as a criminal offence and result in incarceration. In this way, relatively minor offending can result in a far more serious punishment than it would if the offence had been dealt with exclusively within the criminal justice system.
So far we have concentrated predominantly on alternative routes to prosecution for young offenders. However, some of the problems discussed above may materialise after there has been a decision to prosecute. Reform of the juvenile cautioning system has resulted in a sequential process which provides for a reprimand for a first offence, and (normally) a warning for a second offence. A further reprimand or warning is precluded, as discussed earlier, and a subsequent offence will usually result in prosecution. A third, relatively minor offence is not uncommon amongst this age group, and it might be questioned why prosecution should be seen as the normal response in such cases. Indeed, there may be a variety of reasons why prosecution is inappropriate: such as the trivial nature of the third offence; parity of treatment with other offenders involved in the same incident; provocation by the victim; and strong personal mitigating circumstances. If prosecution has to follow a third offence, it might be expected that a wide discretion should be conferred on the youth or magistrates' courts, so as to avoid net-widening and unduly harsh punishment. Instead, the introduction of the referral order, as, in effect, the third stage in the process, has resulted in a restriction of judicial discretion in relation to less serious youth offending (Youth Justice and Criminal Evidence Act 1999, s 1(1)). This may well result in a disproportionate response to youth crime.
This measure involves the referral of the young offender to a youth offender panel (YOP), which is run under the auspices of the local youth offending team (YOT). The principles of restorative justice inform the work of YOPs, and the recipients of a referral order have to agree to a ‘contract’, at their initial meeting with the panel, which sets out a programme of behaviour for the young person to follow. Contracts might include a requirement to participate in some reparative activity, and/or to apologise to the victim (see further Newburn et al 2002, chap 5). If there is a breach of the ‘agreed’ contract, the young offender may be returned to court, and he will be returned to the youth court if he fails to agree to the contract.
The soundness of restorative principles has been the subject of extensive debate in recent years, and it is not intended here to evaluate the various arguments. However, it is relevant to the present discussion to question whether the principles of restorative justice, as represented by the referral order, are compatible with a proportionate response to youth offending (see generally Von Hirsch and Ashworth 2005, pp 119-130; Zedner 1994). There are also objections to certain aspects of the referral order in practice, notably the lack of free choice which is inherent in the process of agreeing to the contract (Ball 2000, p 215). Although the language of the order is couched in consensual terms, the element of coercion is clearly present and this has been noted by commentators on the 1999 Act (see e.g. Wonnacott 1999).
An interesting parallel can be drawn between this use of a pseudo-contractual process by YOPs and the issuing, by crime and disorder reduction partnerships, of (non-statutory) Acceptable Behaviour Contracts for young people who are involved in anti-social behaviour and low-level offending (discussed above). Although an ABC is also expressed in contractual terms, it is evident that failure to agree to this measure is likely to meet with more far-reaching consequences for young people, such as an ASBO application, or even prosecution (Koffman 2006b, pp 596-597). In an early piece of research which looked at ABCs, it was noted that the families whose children received ABCs complained about the coercive nature of the process and the lack of any genuine agreement to either the signing of the contract or its terms (Squires and Stephen 2005, p 133).
This suggests a recurring theme which runs through these more informal procedures for dealing with children and young people: a lack of due process, even an element of coercion, inherent in the various measures and orders, however consensual or supportive the language which is employed. Crime reduction partnerships and the police do not see it as their role to ensure that issues of proportionality are addressed, and it is far from clear whether magistrates and youth courts regard it is their responsibility to mediate over the terms of orders. Yet the ambit of an ASBO may have an important bearing not just on the liberty of the recipient, but also his chances of being dealt with for breach, and possibly of being incarcerated. In relation to the majority of young offenders making their first court appearance, the judicial process has been superseded by YOPs which, in effect, determine sentence, without the offender being legally represented at the meeting, and without any requirement for compliance with notions of proportionality and due process (Wonnacott 1999). The informality of some of these measures, especially those relating to anti-social behaviour, could (in theory) also encourage other coercive practices, such as suspects being told that if they ‘confess’ to all the offences of which they are suspected, they will avoid having an ASBO imposed or enforced. The government's proposed ‘recalibration’ of the legal process, so as to encourage a speedier and less formal response to crime and anti-social behaviour, is silent on the subject of explaining how these potential abuses will be avoided.
In the 1970s and 1980s, proponents of limited retributivism advocated this principle, inter alia, as a way of curbing the excesses of over-zealous rehabilitative sentencing, which permitted disproportionate responses to youth offending. By insisting on a more justice-based response, supporters of the proportionality principle helped to restrict the use of optimistic, and even misguided, rehabilitative measures. The challenge today is perhaps even greater as ideas of proportionality, in responding to less serious youth offending, have been over-taken by a powerful combination of populist punitivism and managerialism. For example, there is the attempt by the present government to blur the distinction between substantive criminal offences and more generic, ill-defined ‘anti-social’ behaviour. No-one is quite certain what anti-social behaviour actually is (Ramsay 2004), but most people are nonetheless convinced that it is largely the preserve of young people, and that it is a growing social problem.
Moreover, there is the current preoccupation with the tenets of restorative justice, although this concept is, once again, notoriously vague. It is arguable whether some of the recent innovations under the 1998 and 1999 Acts are genuinely restorative, as they are used to augment an otherwise punitive system rather than fully embracing ideas of mediation, reparation and restoration (Ball 2000; Dignan 1999; Morris and Gelsthorpe 2000; Puech and Evans 2001). Furthermore, there is a simplistic tendency to assume that a process which can be described as ‘restorative’ for the victim will inevitably also be ‘rehabilitative’ for the offender. Whilst it may be accepted that a genuinely restorative process will benefit both victim and offender, there is a suspicion that some of the measures introduced by recent legislation are more concerned with appearance than any realistic attempt at helping offenders overcome what, for many, are enormous social disadvantages. Restorative justice principles may pose a similar threat to due process and proportionality that was provided by the rehabilitative approach a quarter of a century ago (Von Hirsch and Ashworth 2005; Zedner 1994). A similar response is now required to re-assert the importance both of responding to youth offending proportionately, allowing for the immaturity of the offender, and the fact that most young people will simply 'grow out' of their offending behaviour (Von Hirsch 2001).
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