Procedural Safeguards for Young Offenders: Views of Legal Professionals and Adolescents
| Author | Jeanette A. Lawrence,Anthony J. Hicks |
| DOI | 10.1375/acri.37.3.401 |
| Published date | 01 December 2004 |
| Date | 01 December 2004 |
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THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 37 NUMBER 3 2004 PP.401–417
Address for correspondence: Jeanette Lawrence, School of Behavioural Science, The University
of Melbourne, Melbourne, Victoria 3010, Australia. Email: lawrence@unimelb.edu.au
Procedural Safeguards for Young Offenders:
Views of Legal Professionals
and Adolescents
Anthony J. Hicks and Jeanette A.Lawrence
The University of Melbourne
We investigated the importance of procedural safeguards for young
offenders, identified by adolescents and legal professionals.
Comparisons were made of the ratings of 17 individual procedural
safeguards related to the story of a hypothetical young person brought
before the court for stealing $50. Procedural safeguards were rated by
362 students from Year 9 and 370 from Year 11 at two Catholic
secondary schools, and by 881 members of the legal profession.There
were differences related to professional role and stake in proceedings in
the emphases of judges and magistrates compared with barristers and
with solicitors, and in the emphases of all legal professionals compared
with those of the students.These data on the emphases of young people
on representation by lawyers and parents, having a say, and some
control are pertinent as the basis for understanding and promoting the
procedural rights of young people when they are being dealt with by
authoritative adults.
The need to secure procedural fairness for children has been forcibly brought to the
attention of justice and welfare systems in two major reports on children’s rights
(Australian Government, 1995; Australian Law Reform and Human Rights
Commissioners: ALRC/HRC, 1997). Each report took up directions of the UN
Convention on the Rights of the Child (CROC, 1989) about the ways children
should be treated by adults in a range of social institutions, and each indicated
areas needing reform.
Children are not being given their full rights in the procedures that authorita-
tive adults use to communicate with them or to communicate on their behalf.
Legal representation, the rights of young offenders to “have a say” and explain what
happened, and the opportunity to ask questions or to appeal — all are criteria for
securing procedural fairness. Unfortunately, these criteria are not always observed
in the Australian justice and welfare systems that deal with young people (e.g.,
ALRC/HRC, 1997; Cronin, 1997; Nicholson, 1999; Sidoti, 1998).
The problem is not peculiar to Australia. In the United States, for instance,
political expediencies and lobbies for parents’ rights made it particularly difficult for
legislators to move towards ratifying and implementing the CROC (Levesque,
1996). The Australian implementation hold-up, in contrast, seems to be due not to
ideology as much as to lack of awareness, resources and training (e.g., ALRC/HRC,
1997; Cashmore, 1997; Cronin, 1997). Cashmore (1997) identified a particular
aspect of poor implementation of children’s rights: the failure to recognise the abili-
ties of young people to understand their own needs and dues and to contribute
sensibly to official proceedings. Officials, she argued, should carefully consider
developmental findings that adolescents and children are able to participate in
proceedings and to make reasonable assessments of what constitutes their fair treat-
ment by adults (e.g., Fry & Corfield, 1983; Cashmore & Bussey, 1994; Ruck,
Abramovitch, & Keating, 1998).
Yet, despite the acknowledged importance of the procedural side of children’s
rights, and despite a large body of research on the significance of procedural issues
for adults (for a recent review see Tyler, Boeckmann, Smith, & Huo, 1997), there
has been little systematic investigation of the significance of procedural safeguards
for young offenders. Particularly neglected is any matching of young people’s
perceptions of procedural criteria with the criteria endorsed by the adults who are
likely to deal with them in social institutions.
In this article, we take up the challenge, analysing the views on procedural
safeguards for young offenders expressed by the groups who constitute the key
actors in any young person’s court appearance. These groups were adolescents (from
whose ranks young offenders are likely to come) and members of the legal profes-
sion who function in different roles in court — judges and magistrates as decision-
makers in control of proceedings, and barristers and solicitors who serve the court
and the offender. Do young people and legal professionals have similar or different
criteria for safeguarding procedural fairness for young offenders?
Criteria for Safeguarding Fair Procedures
Procedural safeguards are the criteria for securing and maintaining fair proceedings.
They are used to judge the fairness of the ways in which decisions evolve, rather
than to judge the fairness of their outcomes, by making sure, for example, that the
person has a voice and membership status in the group (Thibaut & Walker, 1975;
Tyler & Lind, 1992). In the case of young people, procedural safeguards largely
relate to the manner in which adults interact with them, and in turn, to the
manner in which they are expected to interact with adults in social institutions.
Procedural issues have a special importance of their own in social life. People in
organisational and public life, for example, are capable of tolerating less than desir-
able decisions, if they believe they have been dealt with justly in the process of
determination of those decisions. In organisational settings, workers tend to express
greater satisfaction with their assigned tasks and with decisions about rewards or
penalties if they are given explanations, a voice to speak or be represented, and
some control over proceedings (e.g., Lind, Kulik, Ambrose, & de Vera Park, 1993;
Mossholder, Bennett, & Martin, 1998; Schaubroeck, May, & Brown, 1994).
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ANTHONY J. HICKS AND JEANETTE A.LAWRENCE
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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