Law and Order Conservatism and Youth Justice: Outcomes and Effects in Canada and England and Wales
| Author | Darrell Fox, Elaine Amull |
Introduction
In Canada and the UK, law and order conservatism has for more than a decade been a preeminent political discourse in the conceptualization of youth crime. More than ten years ago both countries introduced new legislation with the aim of reducing youth offending; the approaches were underpinned by similar views of young people and law and order. However, despite these similarities both countries followed different trajectories and experienced differential outcomes and successes.
This paper explores how changes within the Youth Justice Systems in Canada and England and Wales had unintended consequences in both countries and considers whether these could have been foreseen had theoretical injunctions, practice knowledge and research findings been differently utilized. We also discuss whether the impact of the precepts of law and order conservatism has been to increase the number of young people in custody despite falling crime rates. The legislation and practices within the Youth Justice Systems form the immediate concern of this paper; the focus is on the initial intentions which drove the policy and practice changes and some of the negative consequences which appear to have arisen as a result of the effects on practice – thus the implementation of that legislation and policy.
The evolution of the Crime and Disorder Act (CDA) (1998) in England and Wales and the Youth Criminal Justice Act (YCJA) (2002) in Canada and their additional and supporting pieces of legislation and policy have been comprehensively dealt with elsewhere (Bala, 2003; Dugmore & Pickford, 2007; Goldson & Muncie, 2008; Tustin & Lutes, 2012; Arnull, 2013). There are also considerable differences in youth justice practice between England and Wales and Canada, and within the provinces and territories of Canada. This reflects a complexity in referring to the Canadian youth justice system as homogenous as the YCJA is federal legislation that is enacted at the provincial and territory level by local governments. This means that implementation is also a variable practice, for example whilst in England and Wales there are multidisciplinary Youth Offending Teams (YOTs), in Canada some regions have dedicated youth probation services or social services that undertake that remit. However, these variations while interesting are not the focus of this paper.
One of the negative effects that resulted from implementation of the CDA (1998) in England and Wales was that the changes introduced had impacts which led to more stigmatisation and labelling of young people; this was in part because more young people were drawn into the system and because of an atmosphere of moral outrage and blame. Consequences such as these are ones which have potential import for Canada. Labelling (Cohen, 2002) may affect all young people but has potentially even greater resonance for those living in smaller communities; it is also relevant in regard to the realisation of children's rights for example, those under the United Nations Convention of the Rights of the Child (UNCRC). This paper explores how the underlying law and order conservatism, which was a shaping and defining feature of youth justice policy in England and Wales and Canada, influenced the different policy structures created. We argue therefore that cultural and political influences can affect implementation in ways which are initially unforeseen and therefore unconsidered by those devising or lobbying for the policy (Levin, 1997; Arnull, 2013) and that a key feature which affects this is the underlying political and cultural 'tone' which affects public policy – in this case, law and order conservatism.
The introduction of new legislation
Initially, the CDA (1998)4* aimed to reduce police officer and practitioner discretion and established a more procedural youth justice system. In Canada however the YCJA (2002) sought to enhance discretion (where practical). It allowed for a three stage referral process that meant that police officers could refer young people pre charge, crown prosecutors could refer post charge and judges could refer at the sentencing stage of the legal process to programs outside of the system. This thereby sought to reduce the detrimental effects of drawing less serious offenders into the full purview of the Youth Justice System (Carrington & Schulenberg, 2003).
Therefore the YCJA (2002) in Canada originally led to lower numbers of young people being charged and thus increased the number who were diverted; thereby fewer young people appeared in court or received custodial sentences. However, the unintentional effect appear to be an increased trend in the numbers of young people held in custody pretrial (Bala & Anand, 2012) and the potential to increase, rather than decrease, incarceration provisions for young people for less serious offences (Turpel-Lafond, 2010; UNICEF, 2011).
Within the UK the implementation of the CDA (1998) and subsequent legislation in England and Wales also led to unintended effects, such as the moralisation of young people through the introduction of civil penalties for social behaviours such as hanging around and thereby being perceived to cause a nuisance. The penalties, Anti-Social Behaviour Orders for example, do not form a focus for this paper but they form a backdrop to an atmosphere that became increasingly moralised and outraged. The penalties commonly associated with this moralised atmosphere were connected to concepts of a lack of respect for others and although civil in nature could lead (by way of breach) into the criminal sphere. In addition, the mandatory policing and sentencing of first, and less serious offenders, increased the numbers of young people in court, sentenced and serving custodial sentences (Arnull, 2009; YJB, 2013; Fox & Arnull, 2013).
The early successes of the Canadian youth justice legislation by diverting young people from the YJS did not mirror the deleterious effects of their British counterparts. However the neo conservative values that underpinned the subsequent YCJA amendments may ultimately lead to these negative effects although that is not the deliberate or stated intention (Greenspan & Doob, 2012). It is this consideration that we wish to explore through a comparison of the various legislations and the effect of those within the Youth Justice Systems (YJS) of Canada and England and Wales.
The recent past
In England, Wales and Canada the respective governments have recently sought to amend either legislation and/or policy in relation to addressing youth crime although the underlying neo-conservative philosophy has remained. Within both jurisdictions the changes appear as a complete reversal of the initial intentions of both the YCJA (2002) and CDA (1998) concerning the use of discretion. Thus, in Canada, the Government through the Bill C10 amendments has now sought to diminish the use of discretion (Turpel-Lafond, 2010; Bala, 2011). In the UK, although legal amendments have not been introduced, there has been a re-interpretation of some of the legislation that impacted so negatively during the CDA's (1998) first years of use.
In England and Wales the government is once again allowing practitioner and law enforcement agencies more leeway to deal with anti-social behaviour with alternative measures outside of the legal system unhindered by legislative requirements. For example, the Youth Justice Board (YJB) (the non-departmental public body responsible for overseeing the youth justice system) in '…recent years a number of schemes have been set up to divert young people from formally entering the Youth Justice System' (YJB, 2013:16). These policy and subsequently practice based changes have resulted in a drop in the processing of young people through the system, thus:
'There were 40,757 reprimands, final warnings and conditional cautions given to young people in England and Wales in 2011/12. This is a decrease of 18 per cent on the 49,407 given in 2010/11, and a decrease of 57 per cent on the 94,836 given in 2001/02.' (YJB, 2013:7)
The focus to increase discretion appeared to be driven by the high number of young people being processed by the YJS. The YJB accounted for this by saying it was to (YJB 2013:16):
• 'avoid the unnecessary criminalisation of young people on the fringes of criminal activity;
• ensure that formal justice processes are focussed on relatively serious offences, and can resolve these cases more quickly and effectively; and
• increase the use of restorative processes to make young people take responsibility for their actions and to promote confidence in justice among victims, witnesses and the wider community'.
In addition Youth Offending Teams (YOTs) now supervise significantly falling numbers of young offenders in England and Wales,5* although the number of offences for which young people are deemed responsible at 15% of all offending is greater than their percentage of the whole population at just over 10%. However, the over-representation is really accounted for by boys who make up approximately 5% of the population but just over 12% of offences, whilst girls also account for approximately 5% of the population but 2.8% of offences and are therefore under-represented. The figures suggest either that boys aged 10-18 offend in England and Wales more than others in the population, or that they are more likely to be caught or processed more frequently. The statistics identify that persistently, particular societal groups are overrepresented in the YJS in both countries, for example black minority ethnic males in England and Wales and Aboriginal males in Canada (Statistics Canada, 2010-11; YJB, 2013). Furthermore the YJB statistics show a slight increase in reoffending rates amongst those supervised and suggest that those entering the system are now young people who have a higher average number of previous offences/cautions and those with 15 or more previous offences/cautions rising...
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