Monthly Archives: April 2008

Plenary Session 2: Barry Goldson – From pre-emptive intervention to custodial detention: Systematic human rights violations in English ‘justice’

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Professor Goldson began by highlighting the well-known fact that youth justice has become much more punitive in the last 15 years. He added that the English system flagrantly violates most human rights. He also wished from the outset to dispel the myth that Wales and England should be treated as one, highlighting that Wales has undergone devolution and is now largely compliant with international standards. Goldson sought to raise three propositions to support his views that England is systematically violating human rights standards in relation to youth justice.

The first proposition is that England comprises one of the most punitive juvenile justice systems in the industrialised democratic world. The second proposition is that punitivity has been institutionalised over the past 15 years by an endless stream of legislation. Goldson outlined briefly the legislation that has been brought in that has an effect on the youths in England. His final proposition is that the net effect of this legislation serves to systematically violate the human rights of children.

Young people are now targeted by the system in a very particular way. A child may not even have committed an offence and yet the mere fact that they may be at risk of committing an offence in future may bring them into the system. This is anathematic to traditional principles of criminal justice. It used to be the case that children only came into the criminal justice system where they had committed an offence and in those circumstances there were clearly defined guidelines for the administration of justice. This would have been in line with international standards. Now intervention can take place before an offence is carried out. Children are exposed to intervention on the basis of what they might do. Goldson argued that perceived risk is not a crime; they are innocent and this innocence is being seriously compromised. It appears from expert evidence that Goldson referred to that there is little to show that early intervention is successful; rather the idea is dismissed as ‘fanciful’.

The UN first expressed concern in 1995 about the levels of detention and since then numbers have actually doubled, which Goldson noted was a graphic violation of children’s rights including the right to life: from 1990 to 2007 there have been 30 youth deaths in detention. A youth of colour is 6.7 times more likely to get a sentence of over 12 months than a white youth. The UN is due to report again this year but Goldson expects them to express few positives and quite a number of negatives. Goldson concluded by arguing that the challenge for those concerned is not to seek out the interventions that work but rather to abandon the ones that do not work.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary Session 1: Tapio Lappi-Seppälä – The Nordic model of Juvenile Justice as applied in Finland

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Mr. Lappi-Seppälä opened by giving a brief history of how Finland has dealt with offending behaviour amongst young people. Child protection legislation was introduced in the early 1900s and Finland has two models running side by side: the child welfare system and the criminal justice system. The former concerns the best interests of the child, the rights of the child, intervention, support, open care and residential care. Those who find themselves in the criminal justice system will be subject to the principle of proportionality, although in Finland there is an avoidance of custody where possible. From the 1960s onwards there has been a movement against incarceration; there was a general decarceration at all levels of the criminal justice system. In 1975 there were 761 15-17 year olds in detention compared to 65 in 2006. There were 1000 15-17 year olds in reform schools in 1965 and in 2007 there were 200.

The child welfare system has been growing in popularity since the 1960s and in 1995 there was a constitutional reform on the rights of the child. The majority of child welfare interventions are family support, open care options. Mr. Lappi-Seppala acknowledged that 20% of these interventions are non-consensual. The primary objective of these care options is that they are there to educate the young people. Issues surrounding substance abuse and mental health are also addressed.

He then posed the question of whether or not juvenile justice systems in different jurisdictions can be compared in terms of penal severity and deprivation of liberty. Although age would be the most reliable factor when examining court imposed sanctions, countries use different methods of filtering and diversion making effective comparisons difficult.

He concluded by examining how well Finland has done in adhering to international standards and felt that the country had done well in adhering to the principle of imprisonment as a last resort, and in finding alternative methods to the criminal justice system to deal with young offenders. In addition he highlighted the publication, in 2006, of the Child Protection Law Reform to improve legal safeguards. Criticisms to Finland from the UN Committee on the Rights of the Child have normally focused on how the country has tackled the psychosocial problems of its young people. Mr. Lappi-Seppala outlined the increased investment and continuing improvement in this area.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

Plenary Session 1: Chris Cunneen – Juvenile Justice in Australia: How well do we comply with international standards?

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Professor Cunneen opened by highlighting the fact that Australia has a federal system and consequently there are differing standards and strategies applied across the jurisdictions. Cunneen sought to use three general principles to examine whether or not Australia is compliant with international standards.

The first principle he used was that of imprisonment and detention as a last resort. Currently there are 29.1 per 100,000 imprisoned in the country but as was pointed out this figure masks the difference between states. The Northern Territory for example has a rate of 97.5 per 100,000. Cuneen pointed out that this figure was worrying when one factored in the high number of Aboriginals resident in this jurisdiction. He then highlighted the different rates of imprisonment between New South Wales and Victoria, two jurisdictions comparable when taking into consideration population size. Victoria has a rate of 7.1 whereas New South Wales has a rate of 35. The last 25 years has seen a reduction in the rate of incarceration, Cunneen did identify a slight upswing of late but he is hopeful that this is a temporary change. A negative issue that has recently become apparent is the large number of youths on remand having been refused bail. In 2006 58% of the detention population was made up of remand prisoners. There has been a tightening of the bail laws in the adult legislation that has now also been applied to juveniles without any thought. Cunneen pointed out the knock on effect of this is that a large number of youths are placed in detention system pending their trial and because they have been convicted of no crime, no programmes can be implemented to tackle any problems the youths may have.

The second principle he used was the availability and use of diversion options. Cunneen pointed out that Australia has a number of similar initiatives to Ireland in operation to divert youths from the full rigours of the criminal justice system. Again he stressed how each jurisdiction differed slightly in their approach. Warnings, cautions and family conferencing are all at the heart of diversion. The criteria for their use is established in legislation where the seriousness of the offence, level of violence, harm and the offending history of the child are all taken into consideration when deciding what route to take. The family conference is taken from the New Zealand model. The youth must admit to the offence, agree to participate and the victim must also agree to participate. The police, DPP or a judge may refer a case to a conference. Cunneen acknowledged the mixed results of conferences internationally. In New South Wales youths are less likely to re-offend if they are diverted for property or violent offences than if they came before the courts for the same offence. There is a limited use of drug courts in Australia where half the people referred to the programme are refused admission and 40 % who are admitted complete the programme. Cunneen pointed out that a recent problem has been the increase in the number of people before the courts where the number being diverted has remained the same. The enthusiasm for reform can wear out after a period.

The final general principle Professor Cunneen examined was the prohibition against racial discrimination. He opened by highlighting the fact that Aborigines do not enjoy the same of benefits of diversion. He gave the example of a young female shoplifter. If the shoplifter is black s/he three times more likely to be arrested than if s/he is white. The result is a massive over representation of Aboriginals in the Australian detention system. More than 50 % of the detention population are of Aboriginal extraction. Cunneen pointed out that where detention levels are going down overall, the numbers of Aboriginals being held in detention is rising.

Professor Cuneen concluded by outlining how the diversion system can improve. There needs to be a range that responds hierarchically to the seriousness of offending, adequate resources, the diversion options must be seen as viable options and there is the need for legislation to provide clarity and consistency. He finished by arguing that once rates of recidivism for diversion are as good, if not better, than those for detention then they must be used.

Summary provided by John Cronin, LL.M (Criminal Justice) Candidate

Youth Justice 2008: Blogging the Plenaries

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Youth Justice 2008, a major conference organised by CCJHR member Dr. Ursula Kilkelly, begins tomorrow in UCC. The full programme for this two-day event is available here. The event includes plenaries on both Thursday and Friday, which will be summarised with the summaries posted here on the blog over the weekend. The plenary summaries will mostly be compiled by LL.M (Criminal Justice) candidate, John Cronin.