Mainstreaming Restorative Justice for Young Offenders through Youth Conferencing the experience of Northern Ireland. David O’Mahony and Catriona Campbell* August 2004

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Northern Ireland offers a number of insights in youth justice practice and policy which are relevant to the international forum. The introduction of youth conferencing system in appears to be a positive development for both victim and offender. If youth conferencing is to be effective in achieving positive outcomes high standards of best practice, due process and procedural equity must be aspired to and attained. This will require a great deal of time and resources and, in theory, the quality of the conferences may be affected by the sheer quantity of referrals. In terms of facilitation, formulaic conferences in which the content of the conference plans are decided in the pre-conference meetings should be avoided. Less ‘scripted’ conferences which do not simply ‘go through the motions’ are perhaps more desirable in achieving a long-term positive outcome - in New Zealand, research shows that a successful conference contributed to reducing the chance of reoffending (Maxwell and Morris, 2002). Inevitably, not all cases will be appropriate for youth conferencing - when seventeen year olds come under the jurisdiction of the youth court offences such as car tax evasion will be referred to the youth conferencing service. Consequently, the efficacy of mandatory referrals may be something to be reviewed over time.

One of the more successful aspects of youth justice practice in Northern Ireland outside youth conferencing has been adopted by the police and their use of the Youth Diversion Scheme. The scheme manages to keep the majority of young offenders away from formal proceedings and deals with most juvenile offending informally. This has been shown to be effective as recidivism rates of those dealt with informally are considerably lower than those prosecuted through the courts. The police have also been developing their practices with young offenders and now deliver cautions using a restorative framework which should help young people realise the harm caused by their offending and may help victims come to terms with the offence. This new practice has been shown to be a significant improvement to previous methods of cautioning and hopefully will lead to continued low levels of recidivism for such young offenders.
The use of custody has is another area where there have been considerable advances. Northern Ireland has moved from a jurisdiction which locked up too many of its young people, sometimes for petty offences. This has changed and now the numbers in custody is only around 30-35 children (10-16 years of age). Progressive legislation which has restricted the courts ability to impose custodial sentences on children other than for serious offences and restrictions on custodial remands has helped greatly to keep the number of young people in custody to a minimum. The importance of restricting the use of custody is underlined by the very high reconviction rates of those who have been released from custody, showing it to be really only effective as a means of temporary incapacitation. Best practice shows that custody should only be used as a last resort for juveniles and for the shortest period necessary.
However not everything is positive, most recently Anti-Social Behaviour Orders (ASBOs) look set to be extended to Northern Ireland, sitting uncomfortably in a juvenile justice system said to be underpinned by a restorative justice philosophy. Anti-social behaviour orders were introduced in England and Wales under the Crime and Disorder Act (1998) and a draft proposal for the expansion of ASBOs in Northern Ireland was published in May 2004. ASBOs are civil orders whose primary purpose is to “protect the public from behaviour that causes or is likely to cause harassment, alarm or distress” by dealing with “persistent unruly behaviour” (NIO, 2004). It is anticipated that ASBOs will be available in two ways. Firstly, where there is no conviction the police, district council or housing executive may make an application to a civil court. Notably, hearsay evidence is admissible in a civil court so the affected person does not have to give first hand evidence on any anti-social behaviour, meaning the burden of proof is below that required in criminal proceedings. Secondly, it is proposed that ASBOs will be available to a court on conviction in criminal proceedings. In both instances ASBOs can only be introduced where it is deemed necessary to protect a person from further anti-social acts. An ASBO will not appear on an individual’s criminal record, as it is a civil order. However, there are significant implications for breach, which is classified as a criminal offence and punishable with up to five years imprisonment. Effectively the ASBO is a hybrid conviction which takes advantage of the lower standard of proof required in civil proceedings, but punishes non-compliance with the imposition of onerous criminal sanctions.
Anti-social Behaviour Orders are perhaps the most controversial of the new criminal justice measures to be established in Northern Ireland. In England and Wales they have proved difficult to implement in practice, with support from local authorities described as “not consistent” and “patchy” (Campbell, 2002; Burney, 2002). Their introduction sends mixed messages about the government’s youth justice strategy, as they mark a divergence from the increasingly restorative path youth justice in Northern Ireland has been following. Groups campaigning for the rights of young people have been strongly vociferous in their opposition to ASBOs. In June 2004 the Children’s Commissioner unsuccessfully called for a judicial review of the proposed legislation (Belfast Telegraph, June 11, 2004) and the Chief Commissioner of the Northern Ireland Human Rights Commission expressed concern that ASBOs would “severely and unjustifiably restrict the human rights of many individuals and possibly leave them open to attack by paramilitary organisations” (NIHRC, 2004). In spite of such opposition, the government appears steadfast and the orders look set to be passed into law in the near future. Whether they ultimately serve to protect the public from persistent unruly behaviour or result in young people being criminalised on shaky evidence remains to be seen.

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