Final Warning and Intervention Schemes

This paper will critically evaluate the reformed youth justice policy of Final Warning and Intervention Schemes, operating under the 1998 Crime and Disorder Act in England and Wales. The core values of restorative justice theory will be discussed, before examining the aims of the Crime and Disorder Act and the apparent switch from a formerly punitive government approach to youth crime in the UK. The extent to which restorative justice values successfully underlay interventionist methods, within the act will be challenged in this paper. Criticisms concerning the CDA's potential conflict with human rights will be discussed to support such contentions about the true restorative nature of Final Warning and Intervention Schemes for youth justice. Finally current evidential reports analyzing the success, of Final Warning and Intervention Schemes will be considered to determine whether the legislative innovations have worked to reduce crime rates among youths in the UK.

Restorative justice theory treats crime in the context of producing harm to the victim and offender within communities. Personal and social harm should be repaired according the restorative justice (RJ) principles. Thus such standards place considerable emphasis on the participation and impact of the victim, offender and community, involved in participating in varying process' to achieve an appropriate form of justice. RJ values demonstrate particular actions unique to the theory. For example the use of community decision making concerning, reparations to repair the harm to the victim, victim offender mediation, restitution and victim impact statements. These activities aspire to foster a culture of acceptance, understanding and accountability in a non punitive manner. Hence RJ initiatives often involve non traditional forms of rehabilitation, as opposed to punishment in the form of custodial sentences. It has been suggested, by academics Crawford and Newburn, restorative ideals have been the main theoretical driving force behind policy change towards the youth justice system in the UK. This was shown in the 1997 New Labour Government's flagship legislation, the Crime and Disorder Act of 1998. The extent of the restorative model, underpinning procedures in the CDA 1998 is open to academic debate. Critics question whether RJ values have truly shifted policy approaches towards youth justice policy in the UK.

The situation prior to the 1998 reforms of youth justice policy in the UK is characterized by reoccurring clashes between punitive and more 'welfarist' ideologies within government since the 1960's. Previous approaches to youth justice had been, to certain extent punitive, with increased reliance on the use of cautioning playing a 'central role' to youth policy during the Thatcher era, resulting in the reduction of youth custody. The beginning of the 90's, ushered in the trend for favoring 'populist punitiveness' a politicized strategy to law and order, responding to the moral panic voiced in the aftermath of the1993 Bulger murder case. 'Persistent' juvenile offenders were to be tackled by Michael Howard (Tory Home Secretary), with increased penal measures involving the 'reassertion of the central position of custody in a range of sanctions.' Examples of such punitive measures proposed prior to Labour's reforming CDA was the introduction of disciplinarian boot camps and 'secure training centers' by 1995. But since Labour took power the punitive policy approach to youth justice pursued by the former Conservative government has on first glance been discontinued. In 1997 Labour proposed a restructuring of the youth justice policy - Newburn argues central to such measures was the 'overhaul of the cautioning system' and the plan of limiting the use of custody for young offenders. Hence it is claimed the Crime and Disorder Act 1998 was the result of a new form of youth justice policy which did not necessarily exclusively, focus on principles of restorative justice, but a multitude of 'competing philosophies.'

The aim of the CDA 1998 is found within S.37 of the act. S.37. (1) states it 'shall be the principle aim of the youth justice system to prevent offending by children and young persons.' Secondly in S.37. (2) 'It shall be the duty of all persons carrying out functions in relation to youth justice to have regard to that aim.' These preventative principles are argued by Ashworth to convey a 'diversity of aims' from deterrence, incapacitation to rehabilitation for young offenders in order to put a stop to offending. Thus it is important to note that the aims guiding youth justice do have scope for potential conflicts between 'future regarding concepts of prevention and the retroactive concept of deserved punishment.' Thus restorative moves towards to youth justice is not the sole dominating theory contained within Section 37, - it is part of a confusing multiplicity of rationales steering the CDA 1998 Act.

The reduction in the role of cautioning and custodial measures, lead to new legislative procedures known as Final Warnings and efficiently delivered, multi agency driven Intervention Schemes, to deal with youth crime. Final Warning schemes replaces, the old cautioning system for minors, under S.65 - 66 CDA. Final Warnings can be issued after a reprimand for first time minor offences. Under S.65.(1) Final Warnings are issued 'where a constable has evidence a child has committed an offence.' Thus according to Ashworth, these tools are 'designed to displace informal and formal cautions' while 'diverting' young offenders through the intervention schemes. The final warning 'triggers an immediate referral' to local agencies called Youth Offending Teams (YOT's) which assesses and 'prepares a rehabilitation program tackling offending behavior.' A new development is the introduction of the Referral Order, which operates under the broad umbrella of Intervention Schemes, not only for those on a final warning but for a first time convicted offender, who has pleaded guilty. The magistrate can refer the minor, to a Youth Offender Panel (YOP), 'consisting of people from the community and organized by the YOT' to formulate a consensual youth offender contract stipulating certain requirements to deal with offending behavior. The YOP and Referral Orders are created 'with the underlying concept of restorative justice' in mind. For example, these requirements can be community work, counseling, drug rehabilitation or reparation to the victim. If the offender does not fulfill the contract, they can then be 'returned to the court for sentencing for the original offence.' Under S. 38 such assessments and rehabilitation intervention schemes activated by a Final Warnings or Referral Orders, encourage the use of 'victim offender mediation and reparation to the community' . It can be argued such procedures, therefore counter Ashworth's view, as they are examples of RJ values contained within the UK youth justice policy.

Intervention schemes, are delivered by local authority planning (under S.6.1.a) to help formulate crime reduction plans in the local area. In conjunction with S 38 - 39, authority must be dutifully exercised by 'authorities acting in co-operation with bodies to secure youth justice services and establish youth offending teams.' Newburn argues the creation of YOT's is to function 'solely to intervene' using statutory powers provided by the Act to take preventative action against offenders. It is another example highlighting the conflicting rationales, behind the legislative powers. These interventionist services are intended to be delivered in cost effective, efficient manner under powers S. 38.2.a.b, by 'every police authority, local probation board, Health Authority or care trust.' But Newburn challenges the extent to which RJ values realistically tie in with Final Warning and Intervention Schemes, suggesting they are in part restorative, but also achieve 'systematic managerialism' pursued by New Labour. Newburn argues that the influential Audit Commission paper Misspent Use 1996, recommended shifting resources 'from processing to prevention' which further supports Ashworth's view of Final Warning Schemes operating as a 'diversion' for youth offenders from costly judicial and custodial procedures. But, Newburn argues the legislation created by New Labour, have been heavily influenced by the managerial objectives recommended in the 1996 paper. This it can be suggested, can be seen with the introduction of YOT procedures which enable 'targeting resources, consistency of approach and improved interagency cooperation' in order to be tough on the causes of crime, while maintaining crucial populist support for youth justice policies.

Yet despite this view, interventionist procedures stipulated in the CDA, to prevent youth offending, it can be argued, are measures principally informed by the restorative justice model. For example YOT's actively 'confront young offenders with consequences of offending for themselves their victims and community to develop a sense of responsibility' while also carrying out 'interventions tackling sociological factors such as family, 'that put the young person at risk of offending.' Such aims would confirm a shift in previous acts, taking a punitive stance to youth justice policy in the UK.

Adding more fuel to fire, supporting this view can be seen in the use of statutory provisions for non custodial sentences. RJ ideals can be seen with the S.67 Reparation Order, and S.68-69 creating 'Action Plan Orders' for Final Warning offenders coordinated by YOT's. These 'encourage reparation to victims by young offenders' to come to terms with the offence. A reparation order might involve apologizing to the victim but must be in proportion to the seriousness of the offence for the order given. The Action Plan is an example of strategic attempts to prevent offending by providing an 'intensive individually tailored response' to youth crime for a period of 3 -12 months.

The extent to which RJ values converge with the pragmatic implementation of Intervention Schemes has been further criticized by Ashworth, who questions whether such schemes are successfully implementing restorative standards. Ashworth questions the efficacy of non custodial Reparation Orders under S.67-68 which in practice vague - especially in terms of how courts are to decide upon communal or victim based reparations.

In addition, Ashworth and others criticizes the reformed legislation which 'puts the idea of restorative justice firmly in its place as a useful by-product rather than a goal.' Such problems are further demonstrated by human rights issues raised with the operation of Intervention Schemes, in particular the youth contract. Ashworth argues the contracts are often 'suffused with coercion' as they require the youth to go to court if they do not accept the contract or if breaches occur. Furthermore the youth offender contract 'excludes legal representatives,' while there is concern a youth panel initiated contract can not be 'challenged before a court. Such points would appear to violate the Human Rights Act and Article 6, the right to a fair trial of the European Convention. The article applies 'where ever proceedings result in the imposition of a penalty of a person' even if the proceedings have been adapted for children's offending behavior. There is also, no real clear emphasis paying regard to proportionate measures to suit the level of offending, with 'too much executive discretion' over the contents of an offender contract. European Human rights case T And V v.Uk have ruled for the need of fair procedures for trials of the juveniles and the 'frequent review of preventative sentences for young offenders.' Conflicts with the European Human Rights Convention, serves to further indicate the practical problems, which can be created by RJ principles guiding Final Warnings and Intervention Schemes, under the Crime and Disorder Act 1998.

Studies carried out by the Home Office to evaluate the success of pilot schemes under the CDA do not shed any clear light on the impact of restorative justice initiatives. Indeed it is difficult to accurately quantify crime reduction rates among youth offenders as a result of Final Warnings or the varied statutory provisions providing intervention. In a study assessing the impact of Final Warning on the reduction of criminal proceedings, found in a comparative sample between those cautioned under old powers and those under Final Warming schemes, the latter had lower rates of further criminal proceedings. However it is important to note, the study while supporting the new restorative justice schemes, stated there was no 'data to suggest' such a result and improvement is down to the 'deterrence effect of new procedures' or the effect of intervention work by YOT's. Preliminary reports assessing the introduction of Referral Orders in the youth justice system, found that 'a number of youth panel members were disappointed with the lack of victim attendance' which is vital to make a beneficial, dynamic functioning of YOP's. A report looking into the overall implications for restorative justice within the criminal justice system made some sobering conclusions. It was suggested such restorative schemes were 'fragile,' vulnerable to budget cuts, while being incredibly 'labour intensive, and beset by delays.'

In conclusion there is no doubt Final Warning and Intervention Schemes are optimistically couched in restorative justice values and ideals. Yet the practicalities of implementing such legislation, while coping with the CDA's other competing theoretical rationales, and the demands of New Labour mangerialist tendencies, are all factors which compromise the beneficial impact of RJ schemes within youth justice. This paper agrees with the views put forward by Dignan that Final Warnings and Intervention Schemes 'hardly amount to a restorative justice revolution' which some believe the CDA 1998 has brought to youth justice policy.

Bibliography

Crime and Disorder Act 1998 Chapter 37 Part III

T. Newburn and A. Crawford, Youth Offending and Restorative Justice, 2003 Portland

Youth Offending Teams, source www.everychildmatters.gov.uk/youthjustice/yot/

J. Goddard, Youth Justice Policy in the United Kingdom, Criminal Justice Studies Vol 16 No. 4 December 2003 329-338

A. Ashworth, Sentencing and Criminal Justice, 3rd Ed, Butterworths, (reprint) 2003

T. Newburn, Young People, Crime and Youth Justice, Ch 16, taken from, The Oxford Handbook of Criminology, (eds) M. Maguire, R. Morgan, R. Reiner, 3rd ed, Oxford, 2003

J. Hine and A. Celnick, One Year Reconviction Study of Final Warnings, November 2001, University of Sheffield

T. Marshall, Restorative Justice : An Overview, Home Office Report, 1999

Implementing Restorative Justice Schemes ( Crime Reduction Programe) A Report on
the First Year, Home Office Report 32/04

J Dignan, Restorative Justice and the Law : the case for an integrated, systematic
approach, September 2001

New Strategies to Address Youth Offending The National Evaluation of the Pilot Youth
Offending Teams, RDS Occasional Paper No. 69

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