Towards Good Practice in Juvenile Justice Policy in the Commonwealth

AuthorAllison Morris/Loraine Gelsthorpe
ProfessionProfessor of Criminology/Reader in Criminology and Criminal Justice

    Professor of Criminology and Director of the Institute of Criminology, Victoria University of Wellington, Wellington, New Zealand and is now a Research Consultant based in England. Dr Loraine Gelsthorpe is Reader in Criminology and Criminal Justice at the Institute of Criminology, University of Cambridge, Cambridge, England.

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Executive summary
1. Introduction
  1. The purpose of this review is to examine juvenile justice policy in different Commonwealth countries to help identify what might constitute good practice. This review does not suggest that there is, or should be, only one way of 'doing' juvenile justice. Rather it seeks to identify a number of key issues which all juvenile justice systems have to address, and to review, through legislation and practice, the range of options available within a small number of Commonwealth countries. Also 'good practice' itself is not self-evident, value-free or unequivocal. Thus, this review represents only the beginning of debates about what this might constitute within the Commonwealth.

2. Methodology
  1. In identifying the key issues for juvenile justice policy we examined, first, various United Nations documents. For the purposes of this paper, we have focused on the Standard Minimum Rules for the Administration of Justice (the Beijing Rules) and the Convention on the Rights of the Child (UNROC). We also examined the resolution of the Economic and Social Council of the United Nations on Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. The number of jurisdictions discussed is necessarily limited within the time-frame available to us. We chose jurisdictions we were relatively familiar with and/or which had recently reviewed their legislative provision for juvenile offenders. Specifically, we examined legislation in Australia, Canada, England, Ghana, New Zealand, Northern Ireland and Scotland and draft legislation in South Africa. Juvenile justice legislation in some Commonwealth jurisdictions is long, complex and covers a wide range of topics. At this stage of our work, we have been necessarily selective in what we discuss. We have also consulted literature which reviewed practice and recent empirical research in these jurisdictions, where available, and any recent policy documents relating to juvenile justice.

3. Key Issues
3. 1 Ages of criminal responsibility, prosecution and adulthood
  1. There are differences in the age of criminal responsibility and the age at which juvenile justice jurisdiction ends in the Commonwealth countries reviewed. These reflect their diverse social, economic, cultural and political systems. However, there is merit in some common standards and, at the very least, it seems appropriate, in line with the UNROC, for offenders to be treated as 'juveniles' until the age of 18. The age of criminal responsibility was traditionally viewed as the age at which societies were willing to punish child offenders and so 'higher' ages were seen as protective. Given the shifts in emphasis in the aims of juvenile justice, there may be less reason to protect childrenPage 2 from restorative or rehabilitative intervention and so 'lower' ages of criminal responsibility may be more acceptable. A good compromise could be to distinguish between the age of criminal responsibility (which could be low) and the age of prosecution (which could be high).

  2. Because of public and media concerns in some of the Commonwealth countries reviewed, serious juvenile offenders can be dealt with as adults. However, we may need to distinguish here between trial procedures and penalties. Young children are unlikely to be capable of understanding and participating in court proceedings. Changes to procedures are possible, as has been done in some countries with respect to child victims. But the issues are somewhat different with respect to child offenders and trials for children are relatively rare. Consideration could, therefore, be given to legislating for a higher age of prosecution, even for offences of murder and manslaughter (children below this age who committed serious offences could still be dealt with under care and protection mechanisms). An alternative approach is to treat all individuals under the age of 18 as juveniles for criminal justice matters, as the UNROC suggests. Treating only child offenders who commit certain offences as vulnerable and in need of special protection has little logic. Age should continue to be a major mitigating factor with respect to penalties.

3. 2 Dealing with antisocial behaviour
  1. Paragraph 3 of the Beijing Rules states that the Rules should apply not only to children who have committed criminal offences, but also to children who have committed what would conventionally be described as 'status offences' - acts which would not be punishable if committed by an adult. However, the restrictive orders introduced in some jurisdictions to regulate such behaviour have failed to provide adequate safeguards and, as such, are in breach of the Beijing Rules. Steps should be taken either to ensure compliance with these Rules or to abolish these orders.

3. 3 The aims of juvenile justice
  1. Taking some steps to set out what the juvenile justice system is trying to accomplish is an important preliminary task for legislatures as these aims, values and principles can then be relied on to guide practice and to measure the system's effectiveness in meeting its objectives. Most of the Commonwealth jurisdictions reviewed have done this. However, these aims, values and principles should be tied together in a coherent framework and should not lead decision makers in conflicting directions. Examples of the values and principles which could be endorsed are: recognition of children's vulnerability and developmental stages; restoration and reintegration; diversion from court and custody; fairness; due process; and the accommodation of diversity. They should be clear in their purpose and transparent.

3. 4 Restorative justice processes and juvenile justice
  1. Research on restorative conferencing shows that, to a large extent, it has achieved the key restorative aims of involving offenders, victims and supporter; achieving agreement about a cooperative and constructive response to offending; healing victims' hurt; and holding offenders accountable. Research also shows that offenders, their victims and their supporters generally have positive experiences in conferences. Compared to offenders and victims in youth or juvenile courts, those in conferences perceive the processes as fair and they are generally more satisfied with outcomes. This suggests that there is merit in exploring ways in which restorative justice processes can be made a major part of youth justice systems. There will continue to be debate about the best mechanisms for translating restorative justice values into practice, but research will continue to be a helpful tool here.

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3. 5 Diversion from court
  1. Every jurisdiction examined accepts the value of diversion from court and so the issue is how best to achieve this. This review suggests that it is necessary to restrict police discretion though there are different ways of doing this. Also, despite legislative (or other policy) intentions, diversion does not always occur and so attempts to encourage it require careful monitoring to ensure that this objective is being realised.

3. 6 Diversion from custody
  1. This review shows that all of the jurisdictions examined wished to reduce the use of custody for juvenile offenders. However, jurisdictions differed in the extent to which they had been able to achieve this. It appears that, in some jurisdictions, whilst there is political will to reduce the use of custody, the independence of those sentencing can still undermine these intentions. This alerts us to the importance of the commitment of all juvenile justice professionals to the values underlying whatever legislation is implemented and to the need for tight and rigidly applied criteria to restrict the use of custody.

3. 7 The range of dispositions available
  1. This review has shown that most jurisdictions examined have a range of dispositions available to the courts...

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