Something old, something borrowed, something blue, but something new? A comment on the prospects for restorative justice under the Crime and Disorder Act 1998

Criminal Law Review

Volumn , Issue JAN., 2000, Pages 18-29

  Morris, Allison ^a   Gelsthorpe, Loraine ^b  

^a VICTORIA UNIVERSITY OF WELLINGTON   (New Zealand)

^b UNIVERSITY OF CAMBRIDGE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 22844456980     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (75)

1. J. Consedine, Restorative Justice: Healing the Effects of Crime (1995, Ploughshares Publications).
2. For a review, see T. Marshall, Restorative Justice: An Overview (1999, Home Office). See also the article by Charles Pollard in this issue of the Review.
3. Compensation and community service would both be acceptable outcomes within a restorative framework, but in conventional justice systems community service is viewed as having a number of other competing objectives such as punishment and deterrence, and compensation addresses only the limited material requests of victims and not their emotional or other, arguably more important, needs. Both victim-offender mediation and restorative justice share some characteristics - for example, giving victims a voice and making restitution or amends to victims. However, victim-offender mediation emerged very much from within the victims' movement and so tends to give primacy to victims' interests whereas restorative justice emphasises trying to make the current situation better for both victims and offenders. Also, face to face meetings between offenders and victims were, at least in the early English victim-offender mediation schemes, not common. For an evaluation of the four Home Office funded victim-offender mediation pilots in existence in the mid 1980s, see T. Marshall, and S. Merry, Crime and Accountability. Victim Offender Mediation in Practice (1990, HMSO). A wide range of practice currently exists in current victim-offender mediation schemes. See http://www.youth-justice-board.gov.uk/grants/restorative/index.html
4. J. Dignan, "The Crime and Disorder Act and the prospects for restorative justice" [1999] Crim.L.R. 48 at p.50.
5. See, for example, M. Wasik, "Reparation: sentencing and the victim", [1999] Crim.L.R. 470.
6. Home Office, No More Excuses - A New Approach to Tackling Youth Crime In England and Wales (1997, HMSO) at para. 9.21.
7. See also NACRO, A New Three Rs for Young Offenders (1997, NACRO).
8. See, for example, NACRO, A New Three Rs for Young Offenders op. cit. n.7;
9. Dignan, A New Three Rs for Young Offenders op. cit. n.4.
10. The police are also present at conferences, but play a minor role. Social workers are not endued to be present unless they have a prior statutory involvement with the young person. Decisions are reached by agreement of all the participants with the aid of a facilitator appointed by, but independent of, the Department of Social Welfare.
11. For more information see G. M. Maxwell and A. Morris, Families, Victims and Culture: Youth Justice in New Zealand (1993, Social Policy Agency and Institute of Criminology, Victoria University of Wellington).
12. Criteria for arrest are statutorily defined in the Children, Young Persons and Their Families Act 1989.
13. The only offences excluded are murder and manslaughter.
14. Maxwell and Morris, Families, Victims and Culture: Youth Justice in New Zealand op. cit. n.10. These outcomes did not always eventuate, but the reasons for this lay primarily in poor practice resulting from the non implementation of restorative values
15. G. M. Maxwell and A. Morris, Understanding Reoffending (1999, Institute of Criminology, Victoria University of Wellington).
16. The young people in the sample were asked about their undetected offending. In all but two cases (both involving young people classified as "non reconvicted"), this information confirmed the young people's reconviction status. In one of these non-reconvicted cases, the interviewer felt the young person was pulling his leg and, in the other, the young person reported a number of convictions which did not appear in police records. Their classification, therefore, was not altered.
17. See, for example, D. P. Farrington, "Human Development and Criminal Careers" in M. Maguire, R. Morgan & R. Reiner (eds), Oxford Handbook of Criminology (Oxford University Press, 1994);
18. D. M. Fergusson, J. L. Horwood and M. T. Lynskey, The childhoods of multiple problem adolescents: A 15-Year longitudinal study (Christchurch Child Health and Development Study, 1992).
19. See, for example, J. Pratt, "Law and order politics in New Zealand in 1986: A comparison with the United Kingdom 1974-79", (1988) 16 International Journal of the Sociology of Law 103;
20. L. Gelsthorpe and A. Morris, "Juvenile Justice 1945-1992" in M. Maguire, R. Morgan and R. Reiner (eds) The Oxford Handbook of Criminology (1994, Clarendon Press).
21. See I. Brownlee, "New Labour - new penology? Punitive rhetoric and the limits of managerialism in criminal justice policy" (1998) 25 Journal of Law and Society, 313.
22. Home Office, The Child, The Family and the Young Offender (1965, HMSO);
23. Home Office, Children In Trouble (1968, HMSO).
24. S. Cohen, Visions of Social Control (1985, Polity).
25. See A. von Hirsch, Past or Future Crimes (1985, Manchester University Press);
26. A. von Hirsch, Censure and Sanctions (1993, Oxford University Press).
27. Wasik, Censure and Sanctions op. cit. n.5, at page 472.
28. For example, the abolition of the presumption of doli incapax (in s.34) is aimed at encouraging the prosecution of child offenders so that they can be held responsible for their offending. Parents are to be coerced into responsible parenting through the introduction of parenting orders (ss.8-9). These requires a parent to attend counselling or guidance sessions once a week for a maximum of twelve weeks. It can also include additional requirements (for example, to ensure that the child regularly attends school or that the child is home by a certain time each night) for a period up to twelve months.
29. See A. E. Bottoms, "The philosophy and politics of punishment and sentencing" in C. Clarkson and R. Morgan (eds.), The Politics of Sentencing Reform (1997, Oxford University Press)
30. and A. James and J. Raine, The New Politics of Criminal Justice (1998, Longman) for discussion of this theme.
31. Home Office, The New Politics of Criminal Justice op. cit. n.6.
32. Audit Commission, Misspent Youth, Audit Commission, (1996, London).
33. Audit Commission, Misspent Youth '98, Audit Commission, (1998, London).
34. See M. Feeley and J. Simon, "The new penology" (1992) 39(4) Criminology 449 for discussion of these concepts.
35. This places the child for a set period (between three and 12 months) under the supervision of a responsible officer (most likely a social worker). Courts will be able to specify whatever requirements they think necessary to prevent the behaviour which lead to the order and to ensure that the child receives appropriate care, protection, support and control. Examples of such requirements are preventing the child from being in certain places or associating with certain children or ensuring the child's involvement in a certain programme or activity.
36. These will apply to all children under the age of 10 in a specific area and will prevent them from meeting in specified public areas between 9pm and 6am unless accompanied by a parent or responsible adult.
37. The police or local authority in consultation with each other will be able to apply for an anti-social behaviour order against an individual or several individuals whose behaviour is antisocial (that is to say, causing distress, alarm or harassment to one or more people not in the same household). This community based order lasts for a minimum of two years and imposes prohibitions to prevent further anti-social acts.
38. This is also a community based order, applied for by the police, against any sex offender whose present behaviour in the community gives reasonable cause to believe that an order is necessary to protect the public from serious harm.
39. The role of community has gained increasing attention from political, intellectual, and media discourses during the past decade. This was prompted by "underclass theorists" such as C. Murray, The Underclass: The Crisis Deepens (1994, Institute of Economic Affairs)
40. and by moral communitarian theorists such as A. Etzioni, The Spirit of Community. Rights, Responsibilities and the Communitarian Agenda (1993, Fontana Press),
41. and N. Dennis, Zero Tolerance Policing (1997, Institute of Economic Affairs). They are united in their belief that the weakening of the social fabric has to be stopped. Punishment and control in the community, therefore, is one way of shoring up civic virtues by stressing responsibilities in contrast to an attitude of entitlement.
42. For a discussion see G. Hughes, Understanding Crime Prevention: Social Control, Risk and Late Modernity (Open University Press, 1998).
43. Bottoms, Understanding Crime Prevention: Social Control, Risk and Late Modernity op. cit. n.22.
44. Fionda also discusses the tensions in the Act and described it, at page 46, as a "melting pot of principles and ideologies". See J. Fionda, "New Labour, old hat: youth justice and the Crime and Disorder Act 1998" [1999] Crim.L.R. 36.
45. R. Young and B. Goold, "Restorative police cautioning in Aylesbury - from degrading to reintegrative shaming ceremonies?", [1999] Crim.L.R. 126.
46. R. Young and B. Goold, Crim.L.R. ibid. note 37 at p. 130.
47. It is important to acknowledge that these findings were described as "preliminary" and "exploratory". Young and Goold's research is action research which means that practices may change as the research progresses in light of the research findings. See Maxwell and Morris, Crim.L.R. op. cit., n. 10.
48. Charles Pollard, the Chief Constable of Thames Valley Police in a paper presented to a conference on "Restorative Justice and Civil Society", in Canberra in February 1999
49. ("If your only tool is a hammer, all your problems will look like nails") describes three types of conferencing as being offered in Thames Valley: community conferencing, restorative conferencing and restorative cautions. He reveals there that, as of September 1998, Thames Valley police had conducted 1300 "conferences/caution"; 274 (21 per cent) were "full" community or restorative conferences. Thus most "conferences" in Thames Valley are, in fact, strictly speaking, "restorative cautions" at which there is no victim present. According to Young and Goold, conference on "Restorative Justice and Civil Society", op. cit. n. 34, victims attend less than half of all cautions administered by the police in the Restorative Cautioning Unit and most of those who attend represent large town centre shops.
50. Young and Goold, conference on "Restorative Justice and Civil Society", op. cit. n.34.
51. Young and Goold, conference on "Restorative Justice and Civil Society", op. cit. n.34 at p.135.
52. D. Matza, Delinquency and Drift, (Wiley 1964).
53. A. E. Bottoms, "Avoiding injustice, promoting legitimacy and relationships" in J. Burnside and N. Baker (eds) Relational Justice (Waterside 1994).
54. Young and Goold, Relational Justice op. cit., n. 34 at p. 137
55. The longest established examples of conferences in England are in the care and protection area. See P. Marsh, "The development of FGCs - an overview" in K. Morris and J. Tunnard (eds) Family Group Conferences: Message from U.K. Practice and Research (Family Rights Group 1996)
56. and P. Marsh and G. Crow, Family Group Conferences in Child Welfare (Blackwell 1998) for more information about these.
57. These operate on somewhat different principles from those in the youth justice area; however, giving the key participants - in these cases, the family - the power to make decisions is shared. Kent, Hampshire, Sheffield and Chester have all used conferences in the youth justice area. For an evaluation of pilot youth justice conferences, see S. Jackson, Family Justice? (University of Southampton, 1998).
58. See n.3 at para. 6.10.
59. A related point: in the Youth Justice's Board call for tenders for the pilots and their evaluation, there were a number of questions suggested for the professionals involved in the pilots and some of these relate to the professionals' perceptions of the offender's family and the extent to which these perceptions have changed. We can only speculate about the ideological or theoretical premise underlying these questions but it seems to us to be assuming that the roots of the offending are "poor parenting" and that the conference is an opportunity for the parent to prove that they are, after all, "good" parents. For a critique of "parent blaming", see L. Gelsthorpe and A. Morris, "Much ado about nothing: a critical comment on key provisions relating to children of the Crime and Disorder Act 1998", (1999) 11 (3) Child and Family Law Quarterly, 1;
60. and L. Gelsthorpe, "Youth crime and parental responsibility" in A. Bainham, S. Day-Schlater and M. Richards (eds), What is a Parent? (1999, Hart).
61. Home Office, What is a Parent? op. cit. n.6, at para. 4.13. Reparation can also be a component in supervision orders. Indeed, there is an explicit extension to strengthen supervision by the inclusion of a requirement for offenders to make reparation (see Crime and Disorder Act 1998, s.71).
62. Between September 30, 1998 and April 30, 1999, there were less than ten reparation orders in four of the pilot areas, under a 100 in two of the pilot areas, and around 250 in one other pilot area. See http://www.homeoffice.gov.uk/yousys/pilots.htm.
63. Home Office, What is a Parent? op. cit. n.6, at para. 4.14.
64. Wasik, What is a Parent? op. cit. n.5, at p.473 raises two rather different concerns about this limited role for victims. He suggests that involving victims in this way (inviting their views) is bound to raise expectations that they will be invited to be involved in the process and that denial of this may "turn out to be worse for a victim than having had no involvement in the process at all." He also suggested (at p.479) that allowing victims to influence the form that the reparation should take Is likely to lead to "inconsistency and injustice". This is a common, but readily answered criticism. From a restorative perspective, desert theory does not provide outcomes which are meaningful to those most directly affected by the offence: victims, offenders and their families and friends. Consistency of approach (as opposed to consistency in outcomes) is achieved by always taking these into account.
65. See Maxwell and Morris, What is a Parent? op. cit. n. 10.
66. See Home Office, Reparation Order: Draft Guidance, February 26, 1999. www. homeoffice.gov.uk/cdact/index.htm.
67. Dignan, Reparation Order: Draft Guidance, op. cit. n.4 at p.53.
68. Home Office, Reparation Order: Draft Guidance, op. cit. n.6, at para. 5.18.
69. See Home Office, Action Plan Order: Draft Guidance, February 26, 1999. www. homeoffice.gov.uk/cdact/index.htm.
70. Between September 30, 1998 and April 30, 1999, there were under 20 action plan orders in two of the pilot areas, under 40 in three of the pilot areas, and around 150 in one other pilot area. See http://ww.homeoffice.gov.uk/yousys/pilots.htm.
71. Dignan, Action Plan Order: Draft Guidance, op. cit. n.4, at p.53.
72. See, for example, H. Parker, M. Casburn and D. Turnbull, Receiving Juvenile Justice (1981, Blackwell).
73. See, for instance, J. McGuire, What Works: Reducing Offending (John Wiley, 1995);
74. G. McIvor, Sentenced to Serve (Gower, 1992);
75. K. McLaren, Reducing Reoffending: What Works Now? (Department of Justice, 1992).