Referral Orders after the Criminal Justice and Immigration Act 2008
| Author | Ian Edwards |
| DOI | 10.1350/jcla.2011.75.1.683 |
| Date | 01 February 2011 |
| Published date | 01 February 2011 |
| Subject Matter | Article |
Criminal Justice and
Immigration Act 2008
Ian Edwards*
Abstract
The referral order (RO) is the volume sentence in youth justice.
The Criminal Justice and Immigration Act 2008 (CJIA) made important
changes to the use of ROs for young offenders. This article analyses these
amendments and evaluates the extent to which they signal a move away
from the original rationales for ROs. I argue that the CJIA subtly changes
ROs and that this shift broadens the availability of ROs, although the
significance of the changes depends in particular on how youth court
magistrates view the utility of ROs and restorative justice.
Keywords
Youth justice; Restorative justice; Referral orders; Sen-
tencing; Youth offender panels
Referral orders: background
The perennial problem of how best to respond to young people who
offend received an innovative response in the Blair government’s first
term: the referral order (RO). Described in 2005 by Rod Morgan (then
Chairman of the Youth Justice Board (YJB)) as ‘the jewel in the crown
of the youth justice reforms’,1 the RO has become the volume disposal in
youth courts. Since its introduction nationwide in 2002, the RO has
accounted each year for approximately one quarter of all youth court
disposals.2 Despite its practical significance there is little scholarly com-
mentary on ROs. While Anti-Social Behaviour Orders (ASBOs) have
attracted significant media and academic attention,3 ROs have been used
extensively by courts with little critical analysis.4
* Senior Lecturer in Criminal Law and Criminal Justice, UEA Law School,
University of East Anglia; e-mail: I.Edwards@uea.ac.uk.
1 A. Crawford and T. Burden, Integrating Victims in Restorative Youth Justice (Policy
Press: Bristol, 2005) vii.
2 In 2002/3 there were 27356 ROs (29.4 per cent of all youth court disposals) (YJB
Annual Statistics 2002/3). In 2003/4 there were 27283 ROs (25.6 per cent) (YJB
Annual Statistics 2003/4). In 2004/5 there were 26133 ROs (23.7 per cent) (YJB
Annual Statistics 2004/5). In 2005/6 there were 28394 ROs (24.1 per cent) (YJB
Annual Statistics 2005/6). In 2006/7 there were 28722 ROs (24 per cent) (YJB Youth
Justice Annual Workload Data 2006/7). In 2007/8 there were 28475 ROs imposed
(23.5 per cent) (YJB Youth Justice Annual Workload Date 2007/8 (all documents
available at http://www.yjb.gov.uk/publications, accessed 23 November 2010).
3 For example, P. Squires (ed.), ASBO Nation: The Criminalisation of Nuisance (Policy
Press: Bristol, 2008); A. Millie, Anti-Social Behaviour (Oxford University Press:
Oxford, 2008); J. Rodger, Criminalising Social Policy: Anti-Social Behaviour and Welfare
in a De-Civilised Society (Willan: Cullompton, 2008).
4 The leading work is A. Crawford and T. Newburn, Youth Offending and Restorative
Justice (Willan: Cullompton, 2003), which draws on the findings of the pilot
schemes that preceded the national roll-out of ROs (see also R. Earle, T. Newburn
and A. Crawford ‘Referral Orders: Some Reflections on Policy Transfer and “What
Works” (2002) 2(3) Youth Justice 141 and Crawford and Burden, above n. 1).
The Journal of Criminal Law (2011) 75 JCL 45–69
45
doi:10.1350/jcla.2011.75.1.683
The Journal of Criminal Law
Sections 35–37 of the Criminal Justice and Immigration Act 2008
(hereafter ‘CJIA’) amended the statutory framework for the use of ROs.
The changes came into force in April 2009, accompanied by new guid-
ance for those who impose and implement ROs.5 This article examines
the reforms and evaluates the current conceptual coherence of ROs.
First, I explore the conceptual foundations of the RO and situate the
reforms in the wider context of restorative justice (RJ) theory and
practice. Secondly, I examine the conditions under which courts must
impose ROs: the ‘compulsory referral order conditions’ (CROCs). We
shall see that the government chose not to amend them in the CJIA
despite calls from the Magistrates’ Association. Thirdly, I analyse the
discretionary referral order conditions (DROCs), which have been
amended by the CJIA. The analysis is informed in part by my experi-
ences as a Community Panel Member in one Youth Offending Team
(YOT) between 2002 and 2006.6 I draw on these experiences to provide
occasional illustrative examples, rather than as the basis for the article’s
methodology. My concern is to critique the underlying rationales for
ROs by analysing the statutory framework and the parliamentary debate
during the passage of the Criminal Justice and Immigration Bill (CJI
Bill), and comparing the original and revised Guidance. I highlight im-
portant areas for further research.
Referral orders: foundations and functions
ROs were introduced by the Youth Justice and Criminal Evidence Act
1999 and implemented nationwide in April 2002 following pilots in 11
YOT areas.7 In this section I explore briefly what a RO is and the RO’s
conceptual foundations.
Before that roll-out, some writers explored the conceptual foundations of ROs: see
in particular C. Wonnacott, ‘The Counterfeit Contract: Reform, Pretence and
Muddled Principles in the New Referral Order’ (1999) 11(3) Child and Family Law
Quarterly 271–87 and C. Ball, ‘The Youth Justice and Criminal Evidence Act 1999
Part I: A Significant Move Towards Restorative Justice, or a Recipe for Unintended
Consequences?’ [2000] Crim LR 211. There were also some brief articles on
possible problems arising from ROs’ introduction: L. Skingley, ‘The Referral Order:
Some Observations’ (2002) 166 JPN 300; J. Walker and E. Peters, ‘The Referral
Order: Criminal Justice Meets Restorative Justice’ (2001) 165 JPN 380.
5 Criminal Justice and Immigration Act 2008 (Commencement No. 8) Order 2009
(SI 2009 No. 860). The revised guidance (Ministry of Justice/Department for
Schools, Children and Families/Youth Justice Board, Referral Order Guidance, May
2009, available at http://www.justice.gov.uk/guidance/docs/referral-order-guidance.pdf,
accessed 23 November 2010; hereafter ‘revised Guidance’) replaces the previous
guidance from 2002 (Home Office/Lord Chancellor’s Department/Youth Justice
Board, Referral Orders and Youth Offender Panels: Guidance for Courts, Youth Offending
Teams and Youth Offender Panels (Home Office: London, 2002:); hereafter ‘original
Guidance’).
6 The YOT is anonymised.
7 Newburn et al., The Introduction of Referral Orders into the Youth Justice System: Final
Report, Home Office Research Study 242 (Home Office Research, Development and
Statistics Directorate: 2002), available at http://kar.kent.ac.uk/308/1/Uglow_
Introduction_of_referral_2002.pdf, accessed 23 November 20010). Sections 1–15 of
the Youth Justice and Criminal Evidence Act 1999 (hereafter ‘YJCEA’) were
repealed by Sched. 12 to the Powers of Criminal Courts (Sentencing) Act 2000
(hereafter ‘PCCSA’) and consolidated in PCCSA, ss 16–32.
46
Referral Orders after the Criminal Justice and Immigration Act 2008
(1) Referral orders and Youth Offender Panels
A RO can only be imposed on an offender aged 10 to 17 inclusive.8 It
must be for a period of between 3 and 12 months, determined by
reference to the seriousness of the offence.9 A young person who has
received a RO is referred to a Youth Offender Panel (YOP). A YOP is a
non-court meeting between the young person, usually his or her parent
or guardian,10 two Community Panel Members (CPMs) and a member
of the local YOT. The CPMs are volunteer members of the public who
have received training in chairing YOPs and engaging in those meetings
with young people and victims. One of the CPMs chairs each YOP. With
the agreement of the panel one person aged 18 or over chosen by the
offender is entitled to accompany the offender to any meeting of the
panel.11 The panel may also allow to attend any person who ‘appears to
the panel to be a victim of, or otherwise affected by, the offence’.12
Where the panel allows a victim to attend, the panel may allow the
victim to be accompanied to the meeting by one person chosen by the
victim.13
The YOP’s statutory purpose is to seek ‘. . . agreement with the
offender on a programme of behaviour the aim (or principal aim) of
which is the prevention of re-offending by the offender’.14 The YOP will
engage the offender in discussion about the reasons behind his or her
offending behaviour, the consequences of that behaviour and ways in
which the young person can make reparation for harm he or she caused.
The victim will have a chance to express his or her feelings and opinions.
Following the discussion, if agreement is reached the YOP will make a
written record of it (a ‘youth offender contract’), which is signed by the
young person and forms the basis of subsequent reparative work and
intervention programmes supervised by a YOT member at regular inter-
vals during the period of the RO. The YOP will reconvene for progress
meetings at least once every three months to review the young person’s
compliance with the terms of the contract.15 At the end of the RO term,
the YOP will hold an ‘exit’ meeting, at which a young person’s successful
8 The RO is available when a youth court or adult magistrates’ court is dealing with
a person aged under 18 for an offence (PCCSA, s. 16(1)). It is also available when
the Crown Court is sitting as an appeal court (Senior Courts Act 1981, s. 48) and
when the Crown Court judge when sentencing decides to proceed under s. 66 of
the Courts Act 2003 and exercises the powers of a district judge, sitting as a
magistrates’ court.
9 Original Guidance, above n. 5 at para. 8.42; revised Guidance, above n. 5 at
para. 8.36.
10 The court must...
To continue reading
Request your trial