juvenile justice in the united kingdom restorative justice...

ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –

DEPARTMENT OF CRIMINOLOGY Philip Horsfield

Juvenile Justice in the United Kingdom –

Restorative Justice, Family Group Conferences and Anti-

Social Behaviour Orders

Juvenile Justice Systems in Europe –

Reform Developments and Good Practices

Workshop, 22-23 July 2010,

Latvia/Riga, Alberta Street 13, 6 floor



Juvenile Justice in Northern Ireland – Restorative

Youth Conferencing

• Northern Ireland has introduced a restorative justice approach

to dealing with young offenders

• Restorative Youth Conferencing System aims to move classical

procedures and sanctioning to the margins of the juvenile

justice system

• Conferencing system is based in statute and stands at the

centre of the juvenile justice system

• Conferencing thus underlies the same procedural safeguards

as the ordinary court procedure (f. ex. right to appeal, free legal

representation)



Jim Dignan‘s Restorative Justice Model

• Participatory decision-making processes in which the victim,

offender and others with a direct interest in an offence have the

opportunity to deliberate together and seek agreement on the

most appropriate response to the offence.

• Ordinary criminal trial and sentencing see offences being

committed against the state and its laws.

• Ordinary procedures and outcomes are inappropriate for

providing a forum for decision-making based on involvement

and agreement of victim and offender.

• Aim to divert majority of offenders away from court.

• Role of the state is limited to investigation, determining guilt and

providing a procedure for such deliberations to be held and

decisions to be made.



Jim Dignan‘s Restorative Justice Model (cont.)

• The aim of such a procedure lies not only in finding an

appropriate response to offending in a less stigmatizing and

intimidating arena, but also:

– Holding offenders accountable for their actions, responsibilisation;

– Parties can voice the impact of the offence on their lives, and can

thus be heard;

– Victims can receive apology, find closure, and separate the

offender from the offence;

• When persons are tried and sentenced according to ordinary

processes and penalties, restorative juvenile justice systems

follow a strategy of decarceration, focussing more on penalties

in the community that have an element of reparation



15,213,1 14,0

10,8 10,8 9,1 9,1 8,8

5,86,2 3,9

4,2 3,22,3 2,9 4,0

25,326,6 29,3

26,9 29,6

29,231,0 30,9

32,335,2 32,0

35,6 33,4

31,9

32,3 30,9

21,218,9

20,421,8 22,8

27,524,4 24,1

0%

20%

40%

60%

80%

100%

1996 1997 1998 1999 2000 2001 2002 2003

Prison Sentences Suspended Prison Sentences Community SentencesFinancial sentences Discharges Other

Shares of different forms of senteces among all sentences issued against 10-17 year olds in

Northern Ireland, 1996-2003 (source: Northern Ireland Office, RSB 12/2008)



Police

Public Prosecution Service

Adult Courts Youth Courts

Traditional Court ordered Sanctions: Conditional or absolute discharge, Fines,

Community Sanctions, Custodial Sanctions

•Homicide

•Charged with an adult

Charged with

an adult:

Returned to

Youth Court for

sentencing

Upon approval of

Prosecution Service Informed Warning

Restorative Caution

Youth Diversion Scheme

Diversionary Youth

Conference

Court ordered

Youth Conference

Youth Conferencing

Service

Mandatory if

offender

admits guilt

•All other cases

Youth Conference Order

No Further Action

Plan accepted by court



Diversionary Youth Conferences

• Convened following a referral by the Public Prosecution Service to the Youth Conferencing Service;

• Intended to be used in such cases that would otherwise have justified formal court proceedings;

• Should target young persons who have committed intermediate or more serious offences, or persons with a history of offending as a „follow-up intervention to curb offending, particularly where there has been previous contact with the criminal justice system“ – D. O‘Mahony 2008.

• Underlined by the fact that recommendation for further prosecution only possible where gravity of offence is too severe to merit police diversion, and/or where a person has previously received YDS interventions;

• Conference requires consent of offender and admission of guilt;



Court-Ordered Youth Conferences

• Require consent and admission of guilt before they can be conducted;

• Mandatory disposal for all persons before the youth court, except for

three exceptions: – Offences with a penalty of life imprisonment;

– Severe offences that are only triable beofre the Crown Court when committed by an

adult;

– Offences specified in the Terrorism Act 2000.

• Court can still decide to order a conference in these cases, but must

justify its decision to so;

• Mandatory nature of court-ordered conferences highlights desired

centrality of restorative justice;

• Since such offences shall be the exception rather than the rule, it is

anticipated that the vast majority of juveniles shall be referred to the

conferencing system by the courts;



Youth Conference Coordinators

• All referrals are allocated to Youth Conference Coordinators,

who are employees of the civil service with past experience in

other Criminal Justice agencies (f. ex. probation), and special

training in facilitating mediation procedures;

• Role of the Coordinator.

– Preparing all participants for the conference;

– Convening the conference itself;

– Reporting the outcome of the conference back to the referring

Criminal Justice Authority;



Who may attend a conference?

• Mandatory parties to a Youth Conference:

– Offender

– Conference coordinator

– Appropriate adult (parent, guardian or offender)

– Police officer

• Voluntary participants to a Youth Conference:

– Victim, or a victim representative;

– Probation officer or social worker assigned to the offender;

– Legal representation of offender and/or victim;

– Any other person whom the coordinator deems appropriate to deliver

information and insight into the offender‘s living conditions, environment,

personality, or the impact of the offence on the victim (offender has to

agree to participation of such parties)



Forms of victim participation

• Personally present;

• Victim representative;

• Connected to conference via telephone or video live-link;

• Audio/video recordings;

• Letters can be read out;

• Where victim does not wish to be involved, coordinator can

attempt to describe the impact of the offence on the victim‘s

behalf.



Youth Conference Plans

• Following group dialogue in which the harm that has been

caused is addressed and established, a conference plan is

agreed that takes the form of a negotiated contract.

• Agreement is most important factor, and young offender must

consent to the contract.

• Restorative justice approaches can only have truly restorative

outcomes if regret is sincere and the person realizes that

he/she behaved wrongly.

• According to the Law, plans shall contain at least one of the

following:

– Apology to the victim; financial reparation to the victim; offender

should submit to participate in activities addressing offending

behaviour; curfews; drug and addiction treatment.



Youth Conference Plans (cont.)

• Upon agreement of a plan, or once it becomes clear that an

agreement cannot be reached, the coordinator refers the results

of the conference back to the Prosecution Service or the court;

• Diversionary plans:

– Prosecutor can decide to accept, amend or reject a conference plan.

– Amendments require agreement from the parties involved in drafting the

plan.

– Accepted plans are placed on a young offender‘s criminal record, but not

as a conviction.

– Where a plan cannot be agreed, the coordinator compiles a report

explaining the grounds therefor, to which the prosecutor can refer when

deciding how to further proceed;

– Where no plan results, or where a plan is rejected by the Prosecution

Service, ordinary criminal proceedings can be instituted.



Youth Conference Plans (cont.)

• Court-ordered conference plans:

• Upon agreement of a conference plan, the coordinator sends it to the judge making one of three recommendations:

– The court should deal with the offence ordinarily;

– The court should impose a Youth Conference Plan;

– The court should impose a Youth Conference Plan and deal with the offence ordinarily.

• Plans that are accepted by the court become Youth Conference Orders which are entered on a criminal record as a conviction.

• Court can amend a conference plan with agreement from the parties;

• Court-ordered conference plans can recommend the imposition of custody, the length of which is however determined by the court.

• Court can only impose a Youth Conference Order if it is convinced that the offence is „serious enough to warrant it“.



Consequences of Non-Compliance

• If a young offender willingly and repeatedly fails to comply with a

conference plan, a further conference can be ordered that aims to

address the reasons for non-compliance;

• If non-compliance then persists, the consequences differ depending on

the kind of conference;

• Diversionary conferences: – Amendment of plan with agreement of all parties involved, or

– Revokation of plan and institution of ordinary proceedings;

– If a juvenile is before court as a result of non-compliance with a diversionary

conference plan, the court may, where it feels it is appropriate to do so, order the

facilitation of a court-ordered conference. So a young person can be referred to the

YCS again for the same offence.

• Court-ordered conferences: – Sanctioned with an Attendance Centre Order or a Community Service Order (if 16 or

above).

– Aditionally, the court can amend the plan or extend the timescale for which it lasts.

– It can revoke the plan and resentence the youngster as if he had just been found guilty

of the original offence.



Research on the effects and effectiveness of Youth

Conferencing

• Is youth conferencing meeting the key elements of restorative

practices? (victim and offender participation; opportunity to voice their side of

the story; non-coercion; involvement in the process; satisfaction with outcomes;

agreed outcomes; responsibiliataion; delivery of apology etc.)

• Is conferencing more promising than - or equally promising to –

other forms of intervention in terms of recidivism?

• What have been the effects of Youth Conferencing on the

number of juveniles prosecuted, and the sentencing of juveniles

by the courts?



Restorative procedure and outcomes?

• Victims participated in 66% of all conferences in 2008/09;

• 91% of victims stated they attended willingly without feeling

coerced;

• 92% of victims felt they were able to say all that they wanted

during the conference;

• 93% of young offenders received the opportunity to exmplain

their perspective, and 98% felt that they were listened to when

doing so;

• 92% of offenders and 78% of victims felt the conference had

helped the offender realise the harm caused by the offence;

• 77% of offenders exhibited shame, and 92% showed remorse;

• 97% accepted responsibility for their behaviour;



Restorative Procedure and Outcomes? (cont.)

• 91% of victims received a form of apology, and 85% felt this was sincere and were satisfied with it;

• Only 55% of victims entered the conference expecting an apology;

• 86% attended to share how the offence had affected them, and 79% wanted to help the young offender get back on track.

• 70% of agreed conference plans contained no punitive elements; 85% resulted in requirements attending activities and programmes to help the offender; 60% required an apology and 50% entailed the delivery of reparation;

• 91% of all conference plans were agreed with involvement from both parties;

• In 2008/09, 94% of offenders and 86% of victims were satisfied with conference outcomes, and 9/10 would recommend a conference to other victims or ofenders.



Recidivism in the year 2006 according to sentence

received

Total Reoffended

within one year

% reoffending

within one year

Discharges 174 60 34.5%

Fines 178 51 28.7%

Diversionary

Conferences 223 63 28.3%

Court-Ordered

Conferences 215 102 47.4%

Community

Sanctions 265 138 52.1%

Custodial

Sanctions 41 29 70.7%

Source: Tate and O‘Loan, Northern Ireland Youth Re-Offending: Results from the 2006 Cohort. NIO 4/2009.



Youth reoffending in 2006 by sentence received and

offence committed

Non-Custodial Custodial Youth

Conferencing

Violence against

the person 43.4% 87.5% 34.7%

Theft 43.7% 77.8% 31.8%

Burglary 50% - 52%

Drugs Offences 45.5% - 21.7%

Criminal

Damage 45.6% 85.7% 39.3%

Source: Tate and O‘Loan, Northern Ireland Youth Re-Offending: Results from the 2006 Cohort. NIO 4/2009.



Number of persons proceeded against and sanctioned from 2002 to

2006 per 100.000, by age group

Source: Campbell and Wilson, Court Prosecutions and Sentencing for 10 to 17 year olds in 2006. RSB 12/2008

628,0

810,5871,4

940,4956,0953,7

2192,42146,6

2313,3

2208,5

2017,1

707,2762,7753,4

782,8

1850,21847,4

1984,3

1915,61739,5

0,0

500,0

1000,0

1500,0

2000,0

2500,0

2002 2003 2004 2005 2006

Juveniles proceeded against Adults proceeded against Juveniles sentenced Adults sentenced



Changes in court sanctioning of juveniles, 2003 to 2006

Source: Campbell and Wilson, Court Prosecutions and Sentencing for 10 to 17 year olds in 2006. RSB 12/2008

2003 2004 2005 2006 Change

2003-2006

Immediate

Custody 8.8% 9.6% 9.9% 7.0% -1.8%

Suspended

Custody 4.0% 5.4% 4.9% 2.5% -1.5%

Community

Sentences 30.9% 31.3% 30.4% 29.0% -1.9%

Fines 30.9% 29.8% 27.8% 22.1% -8.8%

Discharges 24.1% 21.8% 21.4% 16.5% -7.6%

Others 1.3% 0.9% 0.5% 0.2% -1.2%

Youth

Conference

Orders

1.3% 4.9% 22.7%



Critical Issues – Informed consent

• UN Guidelines on the administration of restorative justice programmes require that they „should be used only with the free and voluntary consent of all parties“ (United Nations, 2000)

• Inhowfar participation and consent are voluntary is questionable, in the light of the fact that alternative to consent is usually ordinary prosecution and sentencing.

• In Northern Ireland, young offenders are required to make their decision on whether or not to accept the prospect of a conference “on the spot”.

• Meetings with the coordinator should be conducted before the young person is asked whether or not he consents to the imposition of a conference in order to better ensure that young people have full understanding of the procedure and implications prior to making a decision on consent.



Critical issues – Proportionality of Outcomes and Net-

Widening

• In Northern Ireland, a court should only impose a YCO if the

offence is “serious enough to warrant it”. What is “serious”

enough is decided at the discretion of the court, and the

variability of conference plan conditions leaves much room for

disproportionality to develop.

• There is the danger that a court may be reluctant to turn down a

conference plan for being ‘too harsh’ where there has been

agreement from the young offender in devising it.

• According to the evaluation by Campbell et al. 26% of juveniles

were not happy to agree to the plan, 14% of which felt they had

to agree.

• There is indeed the risk of “double jeopardy”, in that a young

person could be punished by the court both for the offence as

well as for the failure of the conference.



Critical Issues – Proportionality and Net-Widening cont.

• Evaluation of the police-led restorative cautioning approach by

O’Mahony and Doak in 2004 found that, of the restorative

cautions held during the evaluation period, 90% were for minor

thefts, of which 80% were for damages of less than 15 pounds,

and 50% were even less than 5 pounds.

• “it was not uncommon to come across cases where a considerable amount

of police time had been invested in arranging a full conference for the theft

of a chocolate bar or a can of soft drink” - O’Mahony and Doak (2004) Restorative

Justice – Is More Better? p. 494.

• In order to prevent net-widening, it is key that diversionary

measures are targeted rigorously and appropriately, reserving

formal interventions for such cases where the severity of

offending and the history of the offender merit it.



• Northern Irish approach is a highly promising attempt at incorporating

restorative justice as a central pillar with a juvenile justice sytem.

• Performing well in terms of ensuring restorative outcomes, as

measured by high levels of victim participation, victim and offender and

satisfaction and involvement, and agreed outcomes that are deemed

fair by the majority of participants.

• Fully incorporated into the JJS and into the law, subjecting it to all

procedural and legal safeguards (appeal, free legal aid etc.)

• Centrality effected extensive funding which in theory allows for the

creation of extensive infrastructure and training.

• Initial analyses of recidivism are promising.

Conclusions



Conclusions cont.

• Problems of knowingly achieving sincere informed consent of

offenders;

• Problems with warranting proportionality of outcomes and preventing

net-widening

• The key to alleviating these issues lies primarily in improving the ability

of the PPS to appropriately target diversionary measures and only

refer cases to court that truly warrant court intervention in terms of

offence severity, offence type and offending history.

• This can only be achieved by continuous, in-depth evaluation of the

effects of conferencing on recidivism, and on the sentencing practices

of the courts

• There is a need to identify which offences and offenders are most

appropriate for conferencing and to adjust targeting based on the

evidence resulting from such analyses,



Conclusions cont.

• Restorative interventions are resource-intensive and should not

be forced to be used in cases in which other outcomes like

community sanctions, that also have their merits, would be

equally appropriate.

• Thought should be geared not only towards the development of

evidence-based further training for Youth Diversion Officers,

prosecutors and youth court judges, but also to the question of

whether conferences need to be mandatory.



Juvenile Justice in England and Wales –

Anti-Social Behaviour Orders

• English juvenile justice is characterized by high imprisonment rates,

high prison populations, low rates of informal diversion in connection

with a low age of criminal responsibility

• Reforms since the mid 1990s have changed the JJS from one that

focusses on minimum intervention and bifurcation to a zero-tolerance

approach to juvenile justice that claims „prison works“



Juvenile Justice Reform in England and Wales

• Triggered in particular by:

– A string of riots and exhibitions of violent public disorder

– A select few cases of serious violent offences committed by very

young juveniles (most prominently the Bulger case) that received

extensive media attention and coverage, thus fuelling a moral panic in

the general public

– A general election in 1997 that was primarily characterized by highly

populist punitive and sensationalist discourse building on these events

which shifted juvenile crime to centre stage, and in which both major

parties embarked on a competition of outdoing each other in terms of

promising punitive and intensive shifts in juvenile justice policy

– One could say that New Labour won the election on the grounds that

the previous Conservative Governments had been far too lenient and

weak in their responses to juvenile crime.



The Neo-Correctional Approach

• Paramout aim of the juvenile justice system is the prevention of offending

• Zero-Tolerance, Law and Order

• Responsibilisation

• Early intervention

• Effectiveness, efficiency and risk assessment

• Swift administration of justice

• Inter-agency collaboration and communication at the local level

• Concentration not only on criminal, but also on pre-delinquent and „anti-social“ behaviour

• Crime reduction, reducing public disorder, community safety



England and Wales – Early Intervention

– „Early within the procedure“: even minor infringements of the law should

be responded to with a formal intervention, for example ‚Final Warnings‘ by

the Police, or ‚Referral Orders‘ by the Prosecution Service.

– „Early in a young person‘s life“: intervening in criminal behaviour has

been made possible at an earlier age, with the age of criminal responsibility

having been lowered to 10 years.

– „Early in terms of the behaviour exhibited“: targetting not only criminal

behaviour, but also acts of pre-delinquency, anti-social behaviour,

incivilities, or what is termed „signs of demoralisation“ in Poland.



Anti-social behaviour in England and Wales

„Anti-social behaviour is caused by a lack of respect for other people“ (Home Office, White Paper Respect and Responsibility, p. 7)

„It is time to support the majority against this [anti-social] minority“ (Home Office, White Paper Respect and Responsibility, p. 14)

• Offending and behaving anti-socially are viewed as rational decisions

and as evidence for a lack of respect for the community.

• Law-abiding citizens should feel offended and angered by such

behaviour and that they are entitled to a community free of ASB.



What is Anti-Social Behaviour?

„Forms of behaviour or conduct that cause or are likely to cause feelings

of alarm, harassment or distress to one or more persons not of the

same household“

• Examples of ASB: Littering, verbal (racial) abuse, fly-tipping

(dumping large amounts of rubbish in public spaces), riding

mini-motorbikes, intimidating groups of young people hanging

around, misusing fireworks, begging, public drinking, school

truancy, and of course criminal behaviour

• Wilson and Kelling’s “Broken Windows” theory: monitoring and

maintaining urban environments in a well-ordered condition

through timely intervention may prevent urban deterioration and

escalation of incivilities into more severe crime and disorder.



The Anti-Social Behaviour Order (ASBO)

• Can be applied for when a person behaves in an anti-social or criminal manner

• Applicable to all persons aged 10 and above

• Can be applied for by the police, the local authorities, transport police and registered social landlords, either on their own grounds, or upon complaints from the local community.

• Issued by adult Magistrate’s Courts in civil law proceedings

• Can only be issued if the protection of the public from the behaviour in question cannot be achieved by any other means

• Last for a stated period of at least two years. No maximum limit has been set because duration depends not on the severity of the behaviour, but on the degree of public protection required.

• Prohibits the named individual from behaving in certain ways as stated in the order, one of which is always the prohibition from engaging in further ASB based on the definition stated above. Other common conditions are geographical exclusion areas and curfews.

• Conditions have to stand in direct connection to the offence or behaviour of which the young offender has been sentenced or accused.

• Failure to comply with the conditions is a breach of a civil order, which for children and juveniles is punishable with up to two years imprisonment.



193 251

628

1.340

1.581

1.053920

151170

713

2.086

2.469

1.625

1.362

62

64

0

500

1.000

1.500

2.000

2.500

3.000

3.500

4.000

4.500

2000 2001 2002 2003 2004 2005 2006 2007

Juveniles Adults

Anti-Social Behaviour Orders issued in England and Wales, June 2000

to December 2007



0

500

1.000

1.500

2.000

2.500

3.000

3.500

4.000

4.500

2002 2003 2004 2005 2006 2007

Only ASBOs 'on application' All ASBOs

1,309

3,479

427

4,122

2,705

2,299

426

686

1,208 1,277

886 941

Effect of introduction of criminal ASBOs on the overall number of ASBOs issued,

June 2000 – December 2007



An example for an ASBO

• 16-year-old served with an ASBO for harassing residents of

Chepstow, Wales, by running across gardens, insulting

residents, throwing stones and climbing on roofs

• Was electronically tagged for a previous conviction for burglary

at the time the ASBO was issued (criminal history)

• ASBO to last for two years, banning him from the following:

– Behaving in an anti-social manner

– Entering without prior invitation any privately owned property in England

and Wales, including car parks, schools and gardens

– Threatening, insulting or abusing others

– Climbing on the roof of any building in England/Wales

– Associating with, contacting or attempting to contact four youths named in

the order



Criticism of Anti-Social Behaviour Orders

• Criticism can be broken down into three broad perspectives that

are in fact all interconnected with each other:

– Fear that ASBOs undermine efforts of social inclusion, reintegration,

improving social cohesion and offender rehabilitation;

– Net-widening effects, both in terms of the forms of behaviour to which it is

intended to respond (criminalisation), and that it could be disproportionately

fast-tracking young people in prison;

– Circumvention of key elements of due process and procedural safeguards

with a shift of focus towards protecting the public and improving public

satisfaction with and perceptions of the justice system to the detriment of

the best interest of the child.



Criticism of ASBOs – Social Exclusion

• ASBO conditions are merely prohibitive, negative and exclusive

• No efforts made to tackle underlying causes of offending or AS

behaviour, or to address other associated risk factors

• No efforts to promote social inclusion, rehabilitation, education

• Assumption that behaviour shall improve solely on the basis

having been warned of the consequences of non-compliance

„I hope he will respond positively to the order, and see it as a turning point in his life. The

consequences of failing to comply can be serious“

Brian Tulley, ASB coordinator for East Cambridgeshire



• Clearly underlines New Labour‘s view that ASB and offending are the results of

rational decisions that maliciously aim to damage the community.

• Being prohibited from behaving in ways that are not precisely defined makes it

very difficult to knowingly behave properly, especially for young people.

• Where geographical exclusion zones are defined, it could be difficult for a child

to identify the boundaries of that area.

• Difficulties reflected in high breach rates of ASBO conditions.

• Home Office data from June 2000 – December 2007 indicate:

– 14,972 people received ASBOs, 53.3% of them breached their conditions at least once,

38.6% did so multiple times.

– Juveniles much more likely to breach their ASBOs, with 63.9% breaching at least once

(compared to 47.7% for adults), and 47.5% breaching multiple times (compared to 33.8%

for adults).

Criticism of ASBOs – Social Exclusion cont.



ASBOs breached between June 2000 and December 2007

10-17 year olds 18 and over All ages

Total number of

persons

receiving ASBOs

6,028 8,640 14,972

Persons

breaching at

least once

3,853 4,128 7,981

Breach rate 63.9% 47.7% 53.3%

Persons

breaching more

than once

2,862 2,923 5,785

Multiple breach

rate 47.5% 33.8% 38.6%



• ASBO proceedings are civil law proceedings.

• Thus not subject to reporting restrictions as would be the case

in criminal proceedings.

• New Labour encouraged public „naming and shaming“

juveniles who receive ASBOs in the local media and on posters

that are reminiscent of „Wanted“ signs in the wild west.

• Our case study was taken directly from a local newspaper’s

internet portal.

• His name, age, photograph, address and the conditions of his

ASBO have been made publicly available in mass media, and

the police urge residents to call them if they witness any

breaches of the order.




http://www.dailymail.co.uk/news/article-1181289/Asbo-youths-named-shamed-police-rogues-gallery-poster.html



http://www.southwalesargus.co.uk/news/4575939.Chepstow_teen_banned_from_gardens_and_roofs/




• Naming and shaming is indicative of a quasi-communitarian, popular punitive approach that is characteristic of Neo-Correctionalist systems.

• Such „desintegrative shaming“ stands in sharp contrast to the Northern Irish approach that builds on „reintegrative shaming“

• Generates the impression within the community that something is being done, that stern action is being taken in order to improve the lives of „decent people“.

• Improves satisfaction with the justice system, while at the same time ensuring that the fear of delinquency and of the folk devil „juvenile“ remain in the foreground of public perception.

• Places the enforcement of ASBOs in the hands of the community, gives residents a sense of empowerment and involvement.



• Reporting persons who contravene their ASBO conditions is

viewed as a duty of citizenship, as assuming community

responsibility, as helping to make the community safe.

• Such empowerment and fostering of self-rightiousness is at the

detriment of young people, because whether or not a member

of the community reports an ASBO to have been breached

depends on his/her personal perception of „what is anti-social

behaviour“.

„Anti-Social behaviour means different things to different people“

- White Paper Respect and Responsibility, p. 6




Criticism of ASBOs – Net-widening

• Data for June 2000 – December 2007 (Home Office):

– 11,340 breaches by 2,768 juveniles (roughly four breaches per person)

– 3,248 breaches (28.6%) resulted in custodial sentences.

– For 1,142 juveniles (41.3%) who were sentenced for a breach of their

conditions, the most severe sentence they received was custodial. I. e.

41.3% of juvenile breachers received custodial sentences at some point

of serving their ASBO.

– 5,431 (47.9%) breaches resulted in community sanctions

– Community sanctions were the most severe sentence received by 1,227

juveniles (44.3%).

– In total, 76.5% of breaches by juveniles received santions that are

usually reserved for imprisonable offences, and 85.6% of all juveniles

who breached their ASBO received such a sentence at some point.



Criticism of ASBOs – Net-widening cont.

• Strong discrepancy between the average length of custodial sentences resulting from ASBO breaches by juveniles (6 months) and those by adults (3.9 months)

• Can to a certain degree be explained by the fact that the only custodial sentencing option available for juveniles who breach their ASBOs is the so-called Detention and Training Order, which has a minimum duration of four months, which will of course affect the average.

• The first half of a DTO is spent in custody, the second half is spent under supervision in the community, effectively halving the average length of detention to around 3 ¼ months for juveniles.

• Does not exactly improve the situation, because juveniles are still subjected to a period of probation and can be recalled to custody if they reoffend.

• It appears as though length of DTOs issued by the courts is primarily determined by the period to be definitely spent in custody.



Criticism of ASBOs – Due process, procedural

safeguards, and the best interest of the child

• Civil burden of proof applies in ASBO proceedings.

• No need for proof beyond reasonable doubt.

• Hearsay evidence is admissible (f. ex. a resident tells a police

officer that someone has behaved antisocially).

• Since the majority of ASBOs are issued for criminal behaviour,

this form of intervention can be regarded as a „back door“

through which procedural and due process safeguards are

circumvented, especially in cases in which evidence could be

insufficient to get a conviction in criminal proceedings.

• Contravention of European Convention of Human Rights, most

prominently the presumption of innocence, the right to a fair

trial, the need for criminal intent to prove guilt etc.



• UN Convention on the Rights of the Child and Beijing Rules of

1985 call for use of imprisonment as a last resort.

• General focus lies on public protection and improving public

perceptions of the justice system, rather than on promoting and

having regard for the best interest of the child, which is very

characteristic of Neo-Correctionalism. Examples:

– No maximum duration of ASBOs fixed by law because duration shall be

determined by the degree of public protection required;

– Official aim of ASBOs is protection of the public;

– Naming and Shaming;

• Naming and Shaming would be in contravention of Article 40 of

the UN Convention of the Rights of the Child which guarantees

privacy at all stages of criminal proceedings.

Criticism of ASBOs – Due process, procedural

safeguards, and the best interest of the child



Conclusions

• We are all hungry

• English Action Plan for combatting anti-social behaviour covers

many other preventive initiatives that are supportive,

constructive and less coercive.

• Once problems step into public view, the tone changes to

repression and retribution.

• ASBOs are unlikely to have any long-term preventive effect.

• Criminalisation and demonization instead of rehabilitative

efforts.

• Citizenship as an „entitlement to a civil and respectable

society“, but not an „entitlement to support to be reintegrated

into civil respectable society“.



Thank you very much for your attention!

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