Living with Final Warnings: Making the Best of a Bad Job?
| Published date | 01 December 2002 |
| DOI | 10.1177/147322540200200302 |
| Date | 01 December 2002 |
| Author | Tim Bateman |
| Subject Matter | Articles |
Bad Job?
Tim Bateman
(writing in a personal capacity)
Correspondence: Tim Bateman c/o Youth Crime Section, Nacro, 169 Clapham Road,
London SW9 OPU. Email: Tim.BatemanVnacro.org.uk
Abstract
This article examines the final warning scheme from a number of perspectives. In the first
place it considers the rationale for the abolition of police cautioning for children and
young people and subjects it to critique. It then reviews the recent evidence that has a
bearing on the likely impact of the scheme in terms of the prevention of offending. Finally,
some unintended consequences of the new system, with particular reference to its
implementation, are identified, and some related observations regarding the potential
implications for practitioners are discussed.
Introduction
Under no circumstances would more than two final warnings be given.
(Home Office, 1997a, 13).
Pointing out the semantic paradox at the heart of the system which replaced cautioning for
children – that is, a child can receive two final warnings while no more than a single reprimand
is allowed – is a trivial criticism. On occasion, however, linguistic sloppiness may be
symptomatic of a larger malaise and, in this case, other concerns that might be raised have
considerably more substance.
The reforms of the youth justice system in England and Wales (primarily associated with
the Crime and Disorder Act 1998) marked a radical departure from long established practices,
and successfully shifted the terms of the debate about how the criminal justice system ought
to respond to youth crime. At the same time, the changes built upon certain trends that had
become apparent from the early 1990s and, in this sense, it is possible to trace certain
continuities between the ‘old’ and the ‘new’. The scheme of reprimands and final warnings is
central to the interventionist philosophy of such reforms. As a consequence, the scheme is
likely to share any virtues that might be associated with the project to rebuild youth justice
around the statutory aim (provided by section 39 of the Crime and Disorder Act 1998), of
preventing offending. Conversely, any failures that can reasonably be attributed to the scheme
are likely to have ramifications for an assessment of the whole of the reformed system. At the
current time, there is limited data with which to evaluate the effectiveness of final warnings in
practice. That which has emerged, is at best mixed. To set against this, it can be argued that
the introduction of changes associated with final warnings was not warranted on the basis of
the available evidence; that the prospects for success are limited; and that the potential for
negative outcomes is substantial.
More specifically, a case can be made that the decision to abolish police cautions and replace
them with reprimands and final warnings gives rise to, at least, seven legitimate concerns. First,
there has been an apparent failure to appreciate the full extent of the empirical evidence which
confirms the success of cautioning. Second, there appears to have been little regard paid to the
theoretical model of diversion and decriminalisation (which underpinned the earlier
commitment to dealing with a large proportion of youth offending outside of the court
process), a model which in turn derived considerable support from the proven effectiveness
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Living with Final Warnings: Making the Best of a Bad Job?
of cautioning. Third, and related to the first and second concerns, the arguments generally
deployed as justification for the reforms appear unsustainable in the light of the available
evidence. Fourth, there is little reason to suppose that reprimands and final warnings will
achieve the stated aim of preventing offending. Fifth, if offending is not reduced, the scheme
has a clear potential to accelerate young people through the system with prosecution inevitable
at an earlier stage in an offending ‘career’ and the prospect of custody brought significantly
closer. Sixth, in the light of other concerns, there is a question as to whether interventions
associated with the final warning represent a sensible use of resources and, by implication,
whether such resources might be better utilised elsewhere. Finally, there may be additional
unintended consequences in terms of the relationship between youth offending team
practitioners and the children with whom they work at different stages of the criminal justice
process.
There is, of course, considerable overlap between these areas of concern and, in some cases,
even a dialectical dependency where the validity of one criticism relies upon the truth of
another. Moreover, arguments for most of the objections to final warnings have been made
forcefully elsewhere (Goldson, 2000). It is accordingly not the intention of this article to
examine systematically each of the seven concerns in turn. Instead, the discussion proceeds in
three stages. First, final warnings are located in a context that highlights some of the concerns.
Second, an overview is presented of the emerging evidence on the likely impact of the scheme
and the manner in which it has been implemented. Finally, some implications for practice are
considered.
The Demise of the Caution
There is widespread agreement that the courts should only be used as a last resort, particularly for juveniles
and young adults; and that diversion from courts by means of cautioning or other forms of action may
reduce the likelihood of re-offending. These factors would support a policy within which cautioning is used
for a wide range of offences and offenders.
(Home Office, 1990, 3).
How was it that such ‘widespread agreement’ over the positive role that cautioning could
play within the youth justice system could turn, within seven years, to a commitment to abolish
the practice for young people, at the earliest opportunity? The change did not occur overnight
and early indications were evident in 1994. A Home Office circular of that year discouraged
the use of cautions for particularly serious offences, noted that there was inconsistency between
police force areas, and stated that multiple cautioning could bring the disposal into disrepute
(Home Office, 1994). Two years later, the Audit Commission, in its influential report on young
people and crime, argued that there was a trade-off between the disadvantages generally
associated with criminalisation resulting from prosecution, and the fact that cautioning
becomes progressively less effective as a pattern of offending sets in. The report proposed that
a key decision was how soon to intervene to address offending behaviour (Audit Commission,
1996).
These same themes were to re-emerge in 1997 as a justification for ending the existing
system of pre-court diversion for young people, and replacing it with the reprimand and final
warning scheme. Inconsistencies in cautioning practice, repeated and ineffective cautioning,
young people able to offend with impunity, and missed opportunities for early intervention
were each cited in support of the new measures (Home Office, 1997b).
The introduction of reprimands and final warnings was seemingly designed to address such
concerns. Circumscribing police discretion at the pre-court stage ought to operate to reduce
inconsistency between police service areas. Ensuring that prosecution ensues at the latest for
the third offence (other than in the exceptional circumstances which allow more than one final
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warning), limits repeat cautioning. Requiring an assessment by the youth offending team of any
young person who receives a final warning and, the introduction of a statutory presumption
that a programme of ‘rehabilitation’ will follow unless the youth offending team considers it
inappropriate, is intended to maximise the opportunities for ‘nipping offending in the bud’.
The fact that courts are informed (in any subsequent proceedings) of the young person’s
cooperation with any pre-court programme, and the effective abolition of the use of the
conditional discharge within two years of a final warning, combine to ensure that even low-level
youth crime is met with significant formal intervention. A plausible rationale perhaps, except
that the various elements do not hang together on closer scrutiny.
There is no denying that there was considerable inconsistency in the use of cautioning
between police service...
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