|Mainstreaming Restorative Justice for Young Offenders through Youth Conferencing - the experience of Northern Ireland.
David O’Mahony and Catriona Campbell*
*David O’Mahony is Senior Lecturer in Youth Justice at the Institute of Criminology and Criminal Justice, School of Law, Queen’s University, Belfast Northern Ireland. BT7 1NN (firstname.lastname@example.org)
Catriona Campbell is a Research Assistant at the Institute of Criminology and Criminal Justice, School of Law, Queen’s University, Belfast.
The youth justice system in Northern Ireland is quite distinct and different to that in the rest of the United Kingdom or Ireland. It has also evolved considerably in the past ten to fifteen years and there have been very significant changes to its whole philosophy and operation as recently as 2003, with the introduction of a Youth Conferencing Service. The Conferencing Service now deals with young offenders using an approach based around the principles of restorative justice and the very process and structure of the system has changed to incorporate this new approach (detailed below).
This paper looks at crime and how the criminal justice system in Northern Ireland deals with young people who have offended. It examines what is known about youth offending in general and looks specifically at a number of innovative approaches to criminal justice practice. The police response to youth offending is examined and their specialist teams of officers who deal with young offenders. The courts and sentencing are then looked at with attention being placed on the new arrangements for holding children in custody. The range of measures introduced following the Criminal Justice Review are then examined, and specifically the youth conferencing arrangements, which adopt a restorative justice model to deal with young offenders. The paper draws to a close with a critical overview of the major changes in our system of youth justice and the possible lessons that can be learnt from an international perspective. However, before exploring how this whole new system of youth justice operates it is important to understand the broader criminal justice system in context and a little about crime levels and how young people have been dealt with through the criminal justice system.
Young people, crime levels and victimisation
Generally speaking Northern Ireland has relatively low levels of crime, despite the high profile and serious terrorist related offences that have dominated the media, especially in the recent past. Police recorded crime statistics show that recorded crime levels have generally been about half of that recorded in England and Wales. Recently recorded crime levels have increased from 62,222 to 109,053 offences between 1997 and 1999 and have continued to increase to 142,496 in 2003. This has meant that the crime rate has increased from around 37 crimes per 1,000 population in 1997 to 87 per 1,000 population in 2003. These changes appear to have largely been caused by new counting rules that came into effect in 1998 which record crimes that were not previously part of the official figures and together with the introduction of a new data collection system have had a significant impact on recorded crime levels. Despite these changes, however, Northern Ireland still has relatively low levels of police recorded crime, especially if comparisons are made with England and Wales or the United States of America.
Much of crime recorded by the police is property related, in fact 74 percent of offences in 2002/03 involved property such as theft, burglary or criminal damage, and of these vehicle crime (including theft from and theft of vehicles) accounted for about half of all property crime. Though property related crime makes up the majority of crime recorded, Northern Ireland generally has had a higher proportion of violent and sexual related offences, with 23 percent of offences in 2002/03 being recorded as violent, by comparison to 17 percent in England and Wales.
Victimisation surveys also confirm the lower levels of crime of police recorded crime in Northern Ireland. For example the International Crime Victimisation Survey (2000) which surveyed victims of crime in a number of different countries in Europe and North America showed that Northern Ireland actually had the lowest victimisation rate of any of the participating countries. Only 15 percent of those questioned in Northern Ireland had been a victim compared with an international average of 21 percent (NIO Research and Statistics Bulletin 1/2001).
Self-reported crime data suggests that while many young people admit to committing crimes the majority of incidents are not serious. For instance, McQuoid (1994) conducted a self-reported delinquency study in Belfast in 1993 and found that about 75 percent of 14-21 year olds surveyed admitted committing at least one delinquent act in their lives and 47 percent said they had done so in the past year. The vast majority of delinquent acts disclosed were such things as bus-fare evasion, graffiti or minor acts of property vandalism. Relatively few admitted committing more serious acts such as violence and few were repeat offenders. These findings are common to other studies (e.g. Wolfgang, 1987; Graham and Bowling, 1995) and suggest that while many young people commit delinquent acts at some time in their lives, few commit serious offences or go on to be serious or persistent offenders.
Conviction data in Northern Ireland confirms that young people are much more likely to be convicted of an offence but as they get older they become significantly less likely to engage in crime. These data support the hypothesis that much of the criminality of youth occurs with their transition into adulthood, in a period when boundaries between right and wrong are often tested, but as they mature find employment and stability in their lives they largely grow out of crime (Rutherford, 1992). These general findings are important especially in terms of how youth crime is best dealt with. It is neither necessary nor productive to involve the criminal justice system with every minor act of delinquency, especially given the vast majority of young people desist from offending as they mature into adulthood.
Considering how the youth justice operates in Northern Ireland the police are generally the first point of contact and the main gate keepers into the criminal justice system. The police have considerable powers of discretion in terms of how they deal with offenders and use specialist juvenile officers for young offenders. A dedicated Juvenile Justice Liaison Scheme has operated since 1975 and dealt with all young offenders (10 to 16 year of age) who came to the attention of the police. This was replaced in 2003 by a Youth Diversion Scheme and specialist officers review all such cases and make referrals as to how juveniles should be dealt with (prosecutors make the final decision, usually based on police recommendations). The officers have four broad options available, including taking ‘no further action’, in which case the young person is not processed any further than being referred to the scheme. This is most commonly used when there is insufficient evidence to establish that a crime was committed, or the offence and circumstances were so trivial it is not considered worth pursuing. Secondly, the officer may give ‘advice and warning’ which is an informal action and occurs where there is evidence that a crime has been committed, but an informal warning is considered sufficient to deal with the matter. Such warnings are usually given to the young person and their parent(s) but they do not result in any formal criminal record for the young person – though a note of these warnings may be kept should the young person come to the attention of the police again. The police may also decide to formally caution the young person. This can only take place if the young person admits to the offence, there is sufficient evidence to prosecute and the young person and their parent give informed consent to the caution. Police cautions are recorded as part of a criminal record and should the young person re-offend it may be cited in court. The last option is for the police to recommend the young person for prosecution through the courts. This is usually reserved for more serious offences or where the young person has had previous warnings or prosecutions.
The Youth Diversion Scheme only resorts to prosecuting a relatively small proportion of the young people that are referred to it. Typically, only about 10 percent of cases are prosecuted and about 10-15 percent are formally cautioned. The remainder (about 75-80 percent) are dealt with informally through ‘advice and warning’ or no further police action is taken. In 2002/03 for example, only about 5 percent of cases dealt with by the Youth Diversion Scheme were prosecuted through the courts and 14 percent were given formal cautions. The remainder which was the majority of cases, were dealt with informally. There has been a general increase in the use of informal measures when dealing with young people who come to the attention of the police and the proportion of cases given ‘advice and warning’ or no further police action has steadily increased over the past ten years.
Diverting young people away from the courts is seen as a more positive response than formally prosecuting them and the police have been operating a progressive policy in terms of diverting young people away from formal criminal processing. The police point to encouraging reconviction data to support their policy which shows that only about 20 percent of juveniles cautioned in Northern Ireland went on to re-offend within a one to three year follow-up period (Mathewson et al, 1998) whereas about 75 percent of those convicted in the juvenile courts were reconvicted over a similar period (Wilson et al, 1998).
The work of the police in this area has developed recently and since February 2001 all juvenile cautions are administered by means of a conferencing process known as restorative cautioning. Where possible the victim is encouraged to participate in the conference and meet the offender concerned. The conference also aims to highlight and get the young person to realise the damage or harm caused by their actions. Recent research examining this restorative cautioning method, while finding some evidence of minor or petty offenders being drawn into the scheme, found the process to have distinct advantages over traditional cautioning practice and helped secure some of the values of the restorative justice approach (O’Mahony et al, 2002).
The courts and sentencing
For those young people prosecuted by the police the next step in the criminal justice system has traditionally been the courts (though this has recently changed – see section on youth conferencing below). In 2001 four percent (880) of the sentenced population were juveniles (10-16 years). Juveniles (9%) were proportionately more likely to be given immediate custody than adults (7%), whilst adults were about seven times more likely than juveniles to be given a suspended custodial sentence (Digest 4, 2004). Juveniles were much more likely to be given a community based disposal or conditional discharge than adults and adults were much more likely to be fined.
The majority of juveniles processed through the courts are at the older end of the age spectrum with 16 year olds generally accounting for about half of all juvenile prosecutions. Few juveniles under thirteen years of age are prosecuted and over the last decade no more than a few ten year olds have been prosecuted in the courts.
Very significant changes have occurred in the use of custody for juveniles in Northern Ireland in recent years. Prior to the end of 1996 juveniles could be placed in custody – primarily Training Schools – if they were found to be in need of care and control (welfare reasons), for school truancy, or for offending. This changed with the introduction of the Children (Northern Ireland) Order 1995 which removed welfare and educational cases from those who could be sent to custody. The Criminal Justice Act (Northern Ireland) (1996) also curtailed the powers of the courts to impose custodial sentences, limiting them to more serious, violent and sexual offences and the Criminal Justice (Children) Order 1998 extended the right to bail for children except in the most serious cases and introduced a determinate ‘Juvenile Justice Order’. The Juvenile Justice Order ranges from six months to two years – half of which is spent in custody and the other half under supervision in the community.
The combined effects of these changes and close management of the custodial arrangements for juveniles have seen the juvenile custody population fall dramatically. About ten to fifteen years previously around 200 juveniles were held in custody in the four training schools across Northern Ireland. They were generally held for less serious offences than adults held in custody. Many juveniles spent longer in custody than adults convicted of similar offences. Juveniles in custody were often placed there after placements in children’s homes failed or they were considered too difficult to manage in children’s homes (O’Mahony and Deazley, 2000). Reconviction data shows that the majority of juveniles released from custody re-offend within three years. Curran (1995), for example, showed that 86 percent of juveniles released from secure custody were reconvicted within three years and Northern Ireland Office figures show 97 percent of boys released from training schools were reconvicted within three years (Wilson et al, 1998). The evidence clearly showed that custody for juveniles was ineffective in terms of preventing re-offending.
However, the juvenile population in custody has steadily decreased over the past decade to an average of only about 30-35 persons over the 2000/02 period (which equates to about 20 per 100,000 of the relevant population) - about half of which were held on remand and the other half were sentenced. This has been a considerable achievement in turning around what had been a failing system, which allowed some young people to be placed and held in custody for reasons other than the seriousness of their offence, to a system which now uses custody for juveniles sparingly and as a last resort.
Youth justice and the Criminal Justice Review
The most recent and fundamental changes to youth justice in Northern Ireland have taken place over the past few years and many of the changes are only just coming into effect. These changes follow the recommendations of the Criminal Justice Review which was set up in June 1998 under the Agreement signed in Belfast on Good Friday of that year (known as the ‘Good Friday Agreement’ or Belfast Agreement’). The Agreement sought a political accommodation to the years of conflict in Northern Ireland and as part of that process the government agreed to a fundamental review of policing and criminal justice. The Review reported in March 2000 making 294 recommendations for change across the criminal justice system and these included changes to the youth justice system. Specifically, the Review recommended that a restorative justice approach should be central to how young offenders are dealt with in the criminal justice system. It proposed a conference model to be termed a ‘youth conference’ based in statute for all young persons (including 17 year olds), subject to the full range of human rights safeguards.
The recommendations of the Criminal Justice Review relating to youth justice were put into legislation under the Justice (Northern Ireland) Act 2002 and the most important changes included setting out the aims of youth justice, the inclusion of new community and custodial orders and the establishment of the whole new system of youth conferences based around the principles of restorative justice.
New principles, community and custodial orders
The Justice (Northern Ireland) Act 2002 has for the first time clearly spelt out a set of principles that all of those working within the justice system must follow. These are firstly, that the principal aim of the system is to protect the public by preventing re-offending by children. The legislation states that all persons must have regard to this principle aim and also to the welfare of children affected by the exercise of their functions - recognising that delay in dealing with children is likely to prejudice their welfare. The Act goes on to make provision for two additional measures that have been introduced with a restorative theme: reparation orders and community responsibility orders. These are described as ‘community based’ sanctions and are intended as low level disposals for minor offences.
Reparation Orders which were introduced in England and Wales following the Crime and Disorder Act (1998) were expanded to Northern Ireland in Section 36(a) of the Justice (Northern Ireland) Act 2002. Reparation orders require “the offender to make such reparation for the offence, otherwise than by the payment of compensation” and are now available throughout Northern Ireland as a court disposal. The offender must be found guilty of an offence and consent to being subject to an order. Before making an order, a court must consider a written report complied by a probation officer, social worker or other ‘appropriate person’ containing recommendations of suitable restrictions to be imposed on the offender. Such a report must take into account the attitude and consent of the victim to any reparation. There are a number of restrictions placed on the dispensing of reparation orders. For example, if the offender is under 14 years of age only two hours a day of reparation is permitted. A reparation order must be sensitive to the religious beliefs of a young person and “must avoid”, as far as possible, any potential conflict with these. In addition, the order must take into account if the young person is in education and any disruption.
Community responsibility orders are similar in nature to reparation orders, but have a particular focus on community and victim awareness. The order is made by a court as the sole disposal for an offence and must be completed within six months of it being made. An order can only be made with the consent of the young person. As part of the order the young person is required to undertake ‘instruction in citizenship’ and practical activities which may involve some form of reparation to the victim or their community. At the time of writing this paper, no community responsibility or reparation orders have been served. A number of concerns have been voiced regarding these orders. They are available as a disposal for young people aged 10 to 17 and it has been suggested that given differing levels of maturity such an order will not always be suitable for very young children. The Northern Ireland Human Rights Commission posit that “[very] young children should be excluded from this form of community sentence, as they are unlikely to be able to participate with the order in any meaningful way” and “it is not desirable to mix such young children together with older children when serving a sentence” (NIHRC, 2002, p7).
Regarding the new custodial order - the custody care order - section 56 of the Act restricts the use of custody for 10-13 year old children who have been convicted of an offence for which the court could impose a custodial sentence. Such young children are not to be held with older children in a juvenile justice centre, rather they should be accommodated in the child care system. The order replicates the existing juvenile justice centre requirements and when commenced will mean it will no longer be lawful to detain children under 14 years of age in a juvenile justice centre (other than those directed by the Secretary of State). It is expected the numbers of such children will be very small, but this presents practical problems in terms of how they are to be accommodated and whether children in such facilities for welfare reasons are mixed those that have offended. It was clearly recognised over thirty years ago in Northern Ireland that children in need of care requiring placement away from their homes should not be held in the same institution as children who had offended (Black, 1979). Those responsible for the establishment of such facilities will need to mindful of this and not compromise these principles simply for economic savings.
The introduction and mainstreaming of restorative interventions into the youth justice system in Northern Ireland signals a radical departure from previous responses to young offending. It builds upon the use of increasingly diversionary practices by which the young person is side-tracked from the formal court system. Such diversion is employed as an early intervention designed to prevent further offending by the young person, whilst avoiding the potentially stigmatising label of a criminal record (Becker, 1963).
The new youth conferencing model has much in common with the New Zealand family group conferencing system, which has been in operation since 1989 (see Maxwell and Morris, 1993, for an excellent overview). In a report commissioned as part of the Criminal Justice Review (Dignan and Lowey, 2000) the New Zealand model was highlighted as a potential restorative model for Northern Ireland and has served as a benchmark for many restorative justice schemes in operation worldwide. Nevertheless, it is apparent that differing local contexts can make the transposition of models of justice into discrete environments problematic. In Northern Ireland there exists a background of 30 years of conflict which has created an institutional legitimacy deficit. This is characterised by mistrust and hostility towards the police in some areas and has led to the growth of a crime prevention vacuum and emergence of informal community justice measures (Dignan and Lowey, 2000). Implementing a model of restorative justice without examining contextual factors could perhaps be viewed as misguided, particularly as much of the success of the New Zealand model has been attributed to its contextual and cultural sensitivity to New Zealand’s Maori population (O’Mahony and Deazley 2000). In spite of the burgeoning number of community restorative justice schemes that emerged in Northern Ireland in the late 1990s (McEvoy and Mika, 2002) it was determined that for reasons of accountability, certainty and legitimacy the mode of restorative justice implemented should be based in statute and fully integrated into the formal justice system.
The Youth Conference process
The youth conferencing system has statutory footing in part four of the Justice (Northern Ireland) Act 2002. Additionally, The Youth Conference Rules (Northern Ireland) 2003 establish the procedures to be followed when convening and facilitating a conference. The Youth Conferencing Service was introduced on 18th December 2003 in the form of a pilot scheme and initially was available for all 10-16 year olds living in the Greater Belfast area. In mid-2004 it was expanded to cover young people living in more rural areas including the Fermanagh and Tyrone regions. Section 63 of the Justice (Northern Ireland) Act 2002 provides for the extension of the youth justice system to cover 17 year olds when they are to be included in the jurisdiction of the youth courts. It is expected that this age group will fall under the auspices of the Youth Conference Service by April 2005. Before the scheme is launched throughout the rest of Northern Ireland a thorough and independent evaluation of the youth conference process, which is currently underway, is to be completed.
The youth conferencing system marks an important new role for the Public Prosecution Service, as it is anticipated that youth conferencing will become the primary response to nearly all young offenders brought for prosecution. Youth conferencing will also significantly alter how victims and offenders experience the criminal justice system. In theory, it offers both parties increased involvement in the process and the opportunity to ‘reclaim’ their case from a professionalised, often alienating system (Christie, 1979; Shapland et al, 1985).
Typically, a youth conference will involve a meeting in which a young person is provided with the opportunity to reflect upon their actions, and offer some form of reparation to the victim. The victim, who is given the choice whether or not to attend, can explain to the offender how the offence has affected him or her as an individual. In theory, this means that a conference gives the offender the chance to understand their crime in terms of its impact, particularly on the victim, and the victim to separate the offender from the offence. Following group dialogue on the harm caused by the young person’s actions a ‘conference plan’ will be devised. This conference plan will take the form of a negotiated ‘contract’, with implications if the young person does not follow through what is required of him or her. Agreement is a key factor in devising the ‘contract’, and the young person must consent to its terms. Ideally, the ‘contract’ will ultimately have some form of restorative outcome, addressing the needs of the victim, the offender and wider community.
When will a young person be referred to a Youth Conference?
Two types of youth conferences are provided for in the legislation: diversionary youth conferences and court ordered youth conferences. Both forms of conference take place with a view to a youth conference co-ordinator providing a recommendation to the Prosecutor or court on how the young person should be dealt with for their offence. A diversionary conference is convened following a referral by the Public Prosecution Service. The Prosecutor will only make a youth conference referral where he would otherwise have instituted court proceedings. Diversionary youth conferences are not intended for minor first time offenders, who, depending on the seriousness of the offence, will usually be dealt with by the police and given an informed warning with a ‘restorative theme’ or a restorative caution. Instead, diversionary conferences will often be initiated as a ‘follow-up’ intervention to curb offending, particularly where there has been previous contact with the criminal justice system. Two preconditions must be in place for a diversionary conference to occur: firstly the young person must consent to the process and secondly they must admit that they have committed the offence. Where these conditions are not met the case will be referred to the Public Prosecution Service for a decision on whether to continue and, if so, the case will be dealt with through the ordinary court process.
Secondly, a young person may be referred to a youth conference by a court, known as a court ordered youth conference. Again the admission or establishment of guilt and consent of the young person are prerequisites for a court-ordered conference to take place. A distinctive feature of the Northern Ireland system is that a court must refer a young person to a youth conference. This is subject to certain restrictions: when a magistrate refers a case they must take into account the type of the offence committed. Only offences with a penalty of life imprisonment, offences which are triable, in the case of an adult, on indictment only and scheduled offences which fall under the Terrorism Act (2000) are not eligible for youth conferencing. In effect, nearly all or the vast majority of young offenders will be dealt with through conferencing. The mandatory nature of court ordered referrals highlights the intended centrality of the conferencing process to the youth justice system. In jurisdictions where referrals are discretionary, the uptake has often been low leading to the marginalisation of restorative schemes to the periphery of the justice system (Shapland et al, 2004; Miers et al, 2001; Crawford and Newburn, 2003).
Who may attend a youth conference?
By law, a youth conference co-ordinator, the young person, a police officer and an appropriate adult must attend a youth conference. Where any of these parties are absent the youth conference cannot proceed. An ‘appropriate adult’ means a parent of the young person or, if the child is in care or no parent is available to take part, an appointed social worker. Where neither is available any “responsible person” over the age of 18 can assume this role. The young person is permitted to have legal representation at the conference, but a solicitor may only participate in an advisory capacity and cannot speak for the young person as they are expected to fully participate in the process. Where the young person is under supervision of a criminal justice agency the supervising officer is entitled to attend. Finally, where the Youth Conference Officer deems it appropriate any other person whose presence would be “of value” is entitled to attend a Youth Conference. In practice this may be a social worker, a teacher or a community representative.
A victim, or in his or her place a victim representative, is entitled, but not required, to attend the conference. It is important that the victim is informed of the voluntary nature of the process so as not to result in any additional emotional distress or potential ‘double victimisation’. Where a victim chooses not to attend in person they may still contribute to the conferencing process either directly or indirectly. Section 6(4) of The Youth Conference Rules allows direct participation to be facilitated through a video conferencing or telephone link. Such ‘remote’ participation can also be used where the young person is in secure accommodation at the time of the conference so that the victim does not have to visit the secure facilities. Indirect participation may take the form of a letter, a tape or video recording explaining the impact of the crime or through a victim representative. Where the victim is not an individual a representative may attend in their place. For example, where the offence is theft from a shop an employee of a business may attend or a community representative may participate and explain the impact on the wider community where the offence is disorderly behaviour or criminal damage to public property.
Once it has been established who should attend the conference the youth conference co-ordinator must take reasonable steps to inform all parties, orally and in writing, of the time and place of the conference. If notice is not provided and the youth conference goes ahead, it may be declared invalid. The Youth Conference Rules stipulate that a declaration of invalidity will only occur where failure to give notice is “likely to have materially affected the outcome of the youth conference.” Where notice is not given to a party legally obliged to attend the conference cannot take place.
Preparation for the conference
Each case referred to the Youth Conferencing Service by the court or Prosecutor is designated to a youth conference co-ordinator. The legislation requires that they be an employee of the civil service and, in practice, many co-ordinators have backgrounds in criminal justice agencies such as the Probation service. The role of the co-ordinator is to facilitate the conference process by enabling the preparation and participation of those involved. One of the key indicators of the success of a restorative conference has been identified as the extent to which the participants have been informed and are prepared for the conference (Umbreit and Zehr, 1996; Strang, 2002). As such, effective communication with all participants prior to the conference on the part of the co-ordinator is paramount. In addition to the legislative guidelines, the Youth Conferencing Service has produced a practice manual which sets out the procedures to be followed by co-ordinators on meeting with both the young person and the victim (Youth Justice Agency, 2003).
Once a referral has been made the youth conference process operates within a defined timescale. Initial contact is made with the young person, the Youth Conference Rules stipulating that a youth conference co-ordinator is required to make “all reasonable efforts” to visit the young person within five working days of the referral. On first meeting the young person the co-ordinator will listen to their perspective, establish their readiness to engage in the process and, if they agree to participate, begin preparing for the conference. The young person should be consulted with regards to a suitable time and a place for the conference to be held, and asked who they feel should attend the conference. Informational material, in the form of leaflets, a DVD or a CD-Rom should be provided and explained to the young person to ensure they fully understand the process. The co-ordinator will normally have two meetings with the young person to prepare them for the conference. If, following a referral by a court, the co-ordinator determines that the young person is failing to engage or not suitable for conferencing they are required make a written report to the court detailing this. This may occur where the young person has failed to attend pre-conference meetings or are incapable of understanding the process. If the conference is diversionary the co-ordinator must only inform the Prosecutor of withdrawal of admission or agreement.
Youth conferencing looks not only at an offence, but any background factors that may have contributed to the young person’s offending. In preparing for the conference, sections 4 and 5 of the Youth Conference Rules enable the co-ordinator to access to the young persons criminal record and gather “information, advice and reports in relation to the child as he may deem necessary for the purpose of the youth conference” thus providing a contextual background to the offence. Previous offences may be discussed at the conference, however the practice manual states that the youth conference co-ordinator must impress upon the young person that any new offences should not be raised; the presence of the police officer at the conference means that they are legally obliged to take action if such matters arise.
Only once the young person has consented to taking part in a Youth Conference will the victim be informed about the option of a conference. The Youth Conference Service practice manual states that “if this is not done and the young person does not consent to participate in a Youth Conference the victim may feel disappointed and even more aggrieved.” (Youth Justice Agency, 2003, p58). When the co-ordinator visits the victim for the first time the voluntary nature of the process should be emphasised. The co-ordinator is encouraged to be empathic with the victim when they are telling their story – to “encourage facts” and “allow feelings” (ibid, p77). The co-ordinator should explain the various means by which they can participate. Again, informational materials should be supplied and explained so the victim is fully aware of the process.
The Youth Conference
The format of the Youth Conference itself bears much similarity to the general model used in New Zealand (Maxwell and Morris, 1993). The Youth Conference Rules provide the youth conference co-ordinator with a considerable degree of flexibility when facilitating a conference, stating that it should be conducted “in such a manner as appears to him to be appropriate”. This allows for more ‘creative’ conferences which may be more apposite and sensitive to the particularities of the case than a ‘scripted’ conference. In practice, many co-ordinators follow a ‘model’ process as set out in the youth conference practice manual. This is detailed as a ‘three-step’ approach in which the offence, the consequences of the offence and what is to be done in the future are discussed. Each conference should take place in a neutral venue, of convenience to both victim and offender. A neutral venue is an important consideration said to be “conducive to victim safety and the generation of positive outcomes” (Miers et al, 2001, p24). In practice, most conferences take place at the purpose-built facilities at the Youth Conferencing Service Headquarters.
Prior to the conference starting the co-ordinator is required by legislation to explain to the participants the procedure that will be adopted. Normally, ground rules should be established and the co-ordinator will emphasise the importance of respect amongst the participants and that everything said will remain confidential. Practicalities, such as where refreshments can be obtained and the location of toilets, should be detailed. It should be explained that breaks can be called if necessary, for example if the conference becomes emotional. The conference will normally commence with an overview of the facts of the case by a police officer. The young person will then be asked to put forward their side of the story and, if there is a victim in attendance, they will be provided with the opportunity to ask them questions or to elaborate on what they have said. Attention will then turn to the victim who will be asked to describe their perspective and how the offence has affected him or her. If they have a supporter present they will be given the opportunity to provide more detail on the impact of the crime
Once the victim has described the impact of the offence the young person will be provided with the opportunity to apologise. Although an apology may often be spontaneous the practice manual states that this stage will have been discussed with the young person in the prior to the conference and that they “should know from their preparation that this is the cue for an apology” (Youth Justice Agency, 2003, p69). It is, however, stressed that any apology must not be forced and should only be made if the young person wishes to do so. The young person’s supporters will be given the opportunity to speak up on the behalf of the offender and highlight the positive qualities or aspects of the young person’s life. At this point, focus will turn towards the youth conference plan, and ways in which the young person can make amends to the victim and prevent further offending.
The Youth Conference plan
The intended outcome of a youth conference is the devising and agreement of a “youth conference plan” or “action plan”. The negotiation of a plan will take place at the final stages of the conference. The content of the plan will vary and should take into consideration the offence, the needs of the victim and the needs of the young person. Typically, a conference plan will include some form of apology, either written or verbal, and some form of material or symbolic reparation to the victim or the community at large. A youth conference plan will cover a period of not more than one year. It is essential that the young person consents to the plan and that the consequences of failing to comply with the plan are made clear to them. For the duration of the plan the young person will be designated a youth conference officer who will provide support and supervision.
Section 3 C (1) of the Justice (NI) Act (2002) lays down guidelines of what a plan should contain. The legislation states that the child is “required to do one or more of the following”: apologise to the victim, perform unpaid community work or service, make financial reparation to the victim, submit him or herself to the supervision of an adult, participate in activities addressing offending (e.g. drugs and alcohol education), be subject to physically restrictive sanctions such as curfews, and undertake “treatment for a mental condition or for a dependency on alcohol or drugs”. Consequently the legislation suggests that for an action plan to be valid at least one of these outcomes is required. The intention of a diversionary conference is to avert a young person from formal prosecution, however this does not mean that this course cannot be taken as a diversionary conference plan may still go on to recommend formal prosecution. Similarly, a court ordered youth conference may recommend custody, however the legislation states that it is for the court to decide the length of the term.
Once a plan has been agreed, depending on the type of referral, two courses will be followed:
(i) Diversionary conference plans
When a plan is agreed in a diversionary conference it will then be sent back to the Public Prosecution Service. The Prosecutor will consider the plan and make a decision to either accept or reject it. If a plan is accepted by the Prosecutor it will appear on the young person’s criminal record, but not as a conviction. Where there is no agreed outcome, the youth conference co-ordinator must produce a written report to the Prosecutor detailing this. If this occurs, or the plan is rejected by the Prosecutor, the Prosecutor will then make a decision on how to proceed. A young person can then be referred for prosecution and their case streamed back into the formal court system.
(ii) Court-Ordered conference plans
Once a referral to the Youth Conferencing Service has been made the court cannot deal with the offence until it has obtained a written report from the youth conference co-ordinator. When a recommendation is received the court has three options;
it may accept the plan as the young person’s sentence;
it may accept the plan, but on the recommendation of the co-ordinator and with the young persons consent, may impose a custodial sentence;
it may reject the plan and deal with the offence by exercising its powers.
If a plan is accepted by the court it then becomes known as a youth conference order. A youth conference order will appear on a young person’s criminal record as a conviction. If there is a recommendation for a custodial sentence in addition to the plan the co-ordinator cannot specify the form and duration of the sentence. However, if there has been a recommendation that the court exercises its powers by imposing a non-custodial sentence the court may then hear recommendations. When a proposal is received by the court it must only make a youth conference order where the offence is ‘serious enough to warrant it’. In theory, this may be viewed as a legislative safeguard to ensure the proportionality of the plan. Interestingly, a similar check is not present in the rules governing diversionary youth conferences.
Once an order or plan is successfully completed a youth conference co-ordinator should arrange a meeting with all participants of the original conference who wish to attend in order to “celebrate the young person’s achievement” (Youth Justice Agency, 2003). Following this meeting a final report indicating the outcome will be complied and forwarded to the court or Public Prosecution Service. The victim will also receive a copy if they have requested to be informed of the outcome.
Termination of a Youth Conference
The youth conference process may be terminated for a number of reasons. For a youth conference to take place the young person must consent to take part. If at any stage they withdraw this consent the legislation requires that the conference process is terminated. The rationale behind the restorative aspect of youth conferencing is the achievement of an agreed outcome, something which is clearly undermined if a conference takes place without the consent of the young person. In addition to consent, a young person must also admit guilt or be found guilty for a conference to take place. Consequently, if the young person withdraws an admission the conference process must be stopped.
A court-ordered Youth Conference may be terminated where a youth conference co-ordinator is satisfied that it “would serve no useful purpose” (33D (3)). This can occur, for example, where young person refuses to engage with the process or they have previously taken part in unsuccessful youth conferences. Before making such an application to a court the co-ordinator is required to consult the key parties: the young person, a police officer and the appropriate adult.
The legislation states that a designated youth conference officer must monitor a young person’s adherence to a plan or order. When non-compliance is first identified the practice manual requires that a meeting is immediately convened with the young person in order to discuss this. The youth conference officer should seek to identify the reasons behind non-compliance and reinforce the importance of adhering to the plan. Extenuating circumstances which are often beyond the young person’s control, such as family conflict or homelessness, may be located as the cause of the problem. In such a situation, the youth conference officer can recommend to the co-ordinator that a plan is suspended temporarily until a way forward is agreed. Where it is not possible to come to a resolution the youth conference officer must then make a report to the Public Prosecution Service or court explaining this.
When a young person willingly and repeatedly fails to comply with the terms of the conference plan or youth conference order, a number of steps can be taken. Firstly, a further conference may be arranged addressing the reasons behind the young person’s non-compliance. If there is continued non-compliance following a second conference two routes may be taken depending on the type of referral.
(i) Diversionary plans
Proceedings can only be actioned or continued against a young person where the plan has been rejected by the Prosecutor or they have failed to comply with the terms of the plan to a “significant extent”. The youth conference officer is required to produce a written report to the Prosecutor detailing any non-compliance. At this stage, a plan may be varied or proceedings instigated against the young person. A plan can only be amended where it is deemed appropriate and if the Prosecutor, the young person and any other individual of whom action is required consents. If a young person has breached a diversionary youth conference order and is appearing before a court, the court may, where it is appropriate to do so, refer a case to a youth conference officer for a court ordered youth conference. As such, a new court-ordered conference may be convened for the same offence.
(ii) Court-Ordered plans
If a young person is in breach of a youth conference order the court will follow one of the alternatives available to them under Schedule 10 of the Justice (Northern Ireland) Act 2002. Breach proceedings can only be instigated where there is non-compliance. As a punishment for breach the court may impose an attendance centre order or a community service order. In addition to this they have the option of (i) revoking the youth conference order, (ii) amending the youth conference order or (iii) extending the timescale of the youth conference order. If the youth conference order is revoked completely the young person will be re-sentenced as if they have just been found guilty of the offence. Where a court decides to amend a youth conference order under section five they must obtain the consent of the young person and inform all relevant parties. If the youth conference order was made by the Crown Court, the court has the option of committing the young person to custody or releasing him or her on bail before they can be brought to appear before the Crown Court.
In both diversionary and court ordered conferences best practice requires that the youth conference officer informs the victim when a plan or order has been revoked as a result of non-compliance.
Issues arising from the Youth Conference scheme
Despite being in its infancy a number of potential gaps as to how the youth conference process works in theory, and how it might work in practice, can be identified. These include (i) gaining the informed consent of the young person; (ii) guaranteeing the proportionality of outcomes; (iii) net widening and (iv) securing victim participation.
The extent to which a young person consents to and understands the youth conferencing process may impact upon its eventual outcome. In theory, the young person’s decision should be an informed choice, with a full awareness of all the options available to him or her. In practice, given that the alternative is often sentencing by a court, whose sanctions may be perceived as more punitive, a young person may feel there is no ‘choice’. Where a young person appears in an (often intimidating) court environment and is offered a youth conference they are typically required to make their decision ‘on the spot’. If they have not discussed this option with their solicitor previously they may have little understanding of what the process entails. After accepting a conference there may be reluctance to withdraw for fear of being looked upon negatively by the court. Similar problems may be encountered in a conference scenario where the ‘negotiation’ of a plan has to potential to be undemocratic. The young person may feel that they have no leverage and must agree to suggestions put forward, regardless of their willingness or suitability. Research looking at the detention and questioning of young people by the police in custody has also shown that there are problems in getting young people to fully understand the what is happening to them in stressful environments such as police stations (Quinn and Jackson 2004) and the European Court of Human Rights has held that to conform with an individual’s right to a fair trial it is essential that the person is dealt with in a manner which takes full account of their age, level of maturity and intellectual and emotional capacities and that steps are take to promote their ability to understand and participate in proceedings (T and V v United Kingdom (1999) 30 EHRR 121). Article 12 of the UN Convention on the Rights of the Child also states that a child should have the opportunity to be heard in any proceedings affecting them, and be able to express their views freely. Therefore, careful attention must be paid by practitioners to ensure that this occurs in practice.
Proportionality of outcomes
A key theme throughout the literature on restorative justice is the principle of proportionality, which requires that the outcome reflects the seriousness of the crime. In New Zealand, Maxwell and Morris found that in a number of cases the outcome of Family Group Conferences seemed to “outweigh the gravity of the offence” (Maxwell and Morris, 1993, p96). This is a particularly pertinent issue where there the victim, whose level of forgiveness will inevitably differ from case to case, has a say in the conference plan. Outcomes may be inconsistent if determined by individual victims, which could result in uncertain and disproportionate disposals. Ashworth posits that to counter this, upper limits should be established and “decided by reference to publicly debatable and democratically determined policies that show respect for the human rights of victims and defendants” (Ashworth, 2001, p359).
In Northern Ireland the legislation states that a court should only impose a conference order if it considers it serious enough to warrant it. In practice, however, a court may be unlikely to reject a plan for being ‘too harsh’, particularly where there has been ‘agreement’ in devising it. Importantly, diversionary conference plans have no similar safeguards, bar the practice manual recommendation that a plan should be “proportional to the harm done and the seriousness of the offence” (Youth Justice Agency, 2003, p70). Restorative justice can potentially “trample rights because of impoverished articulation of procedural safeguards” (Braithwaite, 1999, p101). In practice this may mean inequitable outcomes: for example, if a conference fails to reach an agreed outcome a ‘double jeopardy’ situation may occur where a young person is “punished by the court for the failure of the conference as well as the offence” (Warner, 1994, p180). Additionally, the number of possible youth conference outcomes is potentially wide and, except for the fact that a plan can only be enforced for a year, there are few restrictions as to what can be included. The lack of such safeguards, particularly for diversionary conferences, is an oversight which may require re-examination by legislators and careful attention by the courts and youth conference practitioners.
Despite the fact that the youth conferencing system operates with the intention of diverting young people from the formal justice system, the possibility of net-widening remains a pertinent issue. Net-widening occurs when less serious cases are brought into the criminal justice system that would have previously fallen outside it. This was identified as a key concern in a study of the restorative cautioning scheme in Northern Ireland which was said to be “drawing very young juveniles into the criminal justice system for very petty offences” (O’Mahony et al, 2002, p7). The youth conference practice manual states that conferencing should be made available young people who have offended previously and have already received some form of restorative caution or warning. As such, very minor first time offenders should normally fall outside its auspices. Nevertheless best practice should entail internal checks and an awareness of who is being referred to youth conferencing and for what, to prevent any potential net-widening.
One of the primary claims of restorative justice is that it enables the victim to play an active role in their own case where the traditional court system would otherwise marginalise them. Such involvement is said to address the emotional needs of the victim by performing a cathartic function. In practice, however, research has shown it is often difficult to secure the participation of victims. The police-led restorative cautioning scheme in Northern Ireland experienced low levels of victim participation (O’Mahony et al., 2002), as did youth offender panel meetings in England and Wales, where an average of only 13% of victims took part (Crawford and Newburn, 2003, p186). When a victim does not participate, either directly or indirectly, questions clearly arise as to just how ‘restorative’ the process is (McCold, 2000). Resolving the issue of how to augment the number of victims attending restorative sessions whilst being mindful of their right not to participate is therefore an important one for practitioners.
A number of reasons can be put forward explaining victim non-participation. The victim may not want to meet the offender face-to-face for fear of retaliation, the conference may be convened too soon after the offence or the victim may simply wish to move on. In Northern Ireland the institutional legitimacy deficit is an additional contextual factor, as some victims may not wish to become involved in a state-based restorative scheme. This may become less of an issue with the new youth conferencing scheme as it is not conducted by the police. On many occasions the problem of non-participation can be surmounted through good practice. Practical considerations, such as the time of the conference, need to be facilitated well. Research in New Zealand showed that a victim is more likely to attend after 6pm, yet most conferences were held between 9am and 4pm Monday to Friday, a time convenient to police and other professionals but not always victims (Morris, Maxwell and Robertson, 1993). Lack of understanding of what the process entails can also lead to non-participation. This again can be overcome by good practice - the co-ordinator should clearly explain what will happen in a conference and what the victim should expect from the process.
Finally, if the victim is really to move in from the margins of the criminal justice system equal consideration must be given to the treatment of non-participating victims. This is particularly important concerning the level of information and feedback they receive from the youth conferencing service as to the outcome of the conference. Hoyle has argued that if this does not happen it may lead to a bifurcation in the system between participating and non-participating victims, “the ‘[non-participating victims]’ becoming the forgotten actors in restorative justice” (Hoyle, 2002, p131).