The Crime and Disorder Act 1998 (c.37) is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 1998. Its key areas were the introduction of Anti-Social Behaviour Orders, Sex Offender Orders, Parenting Orders, granting local authorities more responsibilities with regards to strategies for reducing crime and disorder, and the introduction of law specific to ‘racially aggravated’ offences. The Act also abolished rebuttable presumption that a child is doli incapax (the presumption that a person between ten and fourteen years of age is incapable of committing an offence) and formally abolished the death penalty for the last offences carrying it, namely treason and piracy.
The bill had also included changes to change the age of consent for homosexual acts from 18 to 16, however this was removed by the House of Lords and was eventually passed in the Sexual Offences Act two years later.
There can be no doubt that over the last two hundred years the youth justice system has been an experimental field of governmental, policy and academic work. Moving from the welfare model to more punitive responses, from get on tough policies, ‘just deserts’, deterrence and incapacitation to communitarian paradigms, the juvenile system has been characterised by inconsistency and conflicting values. However, this chain of reforms, legislative amendments and policy adaptations is said to have found its end of days when the New Labour was elected in government just before the turn of the Millennium.
In particular, the first wave of youth justice radical reforms took place with the Crime and Disorder Act 1998, which laid the foundations of a new paradigm on which the system was going to be based. This moved away from the punitive model, coming a step closer to more inclusive responses to crime. These are now grouped under the umbrella name of restorative justice. The purpose of this essay is to highlight the significance of the Crime and Disorder Act 1998 in assisting the historical transition of the youth justice system from the punitive to the restorative paradigm of justice.
Youth Justice before the Crime and Disorder Act 1998
The youth justice system has not always been distinguished from the adult criminal justice system. The first step towards this separation was taken with the Youthful Offender Act 1854 and the Summary Jurisdiction Act 1879 which introduced special reformatories for juveniles. The biggest reform, however, was achieved with the Children’s Act 1908 as after its introduction, juvenile justice begun taking shape as a distinctive way of dealing with young offenders. According to Watson and Austin: “The Children’s Act 1908, heralded as the Children’s chapter, was a highly progressive measure; the most important of its provisions was the establishing of the separate juvenile court from which the public were to be excluded” .
The first juvenile system was based on the welfare model whereby the state is deemed to be the principal responsible for the well being and successful living of its citizens. As a result, the governmental machinery is the primary guardian of peace and order and no other power can override this. This is expressed in the different public institutions that this Act introduced and which were meant to educate young offenders.
This model was retained until the Young Persons Act 1933 which introduced a system that was an amalgamation of welfare and punitive measures for crime control . After the second World War, when Labour was elected in government, the Children Act 1945 took the system back to its welfare character while the Children and Young Persons Act 1963 introduced stronger welfarism institutions. The Act shifted practice towards the use of diversion, minimising the use of detention centres and borstals and replacing them with community measures .
However, when government changed, the Conservatives took the system back to its punitive character introducing the Criminal Justice Act 1982, which gave the magistrates the authority to exercise new powers such as youth custody and parental fines . In addition, it limited the discretionary powers of social workers over young offenders, embodying a number of crime control features . During the 1990s, these punitive measures were reinforced with tougher policies, as extensive media coverage over cases such as the murder of James Bulger led to a public criticism of the system. These strict reforms came to their pick with the Criminal Justice and Public Order Act 1994.
Youth Justice after the Crime and Disorder Act
As it is apparent from the above analysis, over the last two hundred years most of the governmental responses to juvenile delinquency have been punitive. After a serious criticism that was launched against the youth system through a report of the Audit Commission, the government was forced to take some serious measures to rectify the increased crime and recidivism rates. In particular, the Audit Commission in its 1996 report said that the youth system has so far been ineffective and expensive and that urgent radical reforms were needed .
As a consequence, the new Labour government released a consultation, which led to the well-known White Paper “No More Excuses: A New Approach to Tackling Youth Crime in England and Wales” . There, it was stressed that juveniles need a less punitive and more inclusive approach which can make them understand and more importantly acknowledge the harm they cause when committing crime. This could potentially lead them to remorse and amendment.
This new foundation of juvenile justice was found in the norms and principles of an old paradigm which was favoured by the early communities. It is called restorative justice and is based on the principles of meaningful restoration. This is targeted not through punishment (e.g. just deserts, incapacitation or deterrence), but through a mutual dialogue that can increase responsibility. The ultimate test is passed once the young offender becomes able to see what he or she has done and ask for forgiveness. His/her honesty is tested through a period of restoration and of paying back as much as he/she can either through community work or other types of compensation.
The process is fundamentally different from the one used in the traditional criminal justice system. The parties are brought together either through face to face mediation and family group conferencing or through a go-between facilitator who speaks on their behalf. Both victim and young offender have to enter this process voluntarily and if one is not willing to participate or decides to opt out then the case returns to the standard process of youth courts.
The Crime and Disorder Act 1998 represents the first wave of these reforms which were meant to bring the youth system a step closer to these ideals. In particular, the following new features were introduced to assist this process:
(i) The Youth Justice Board: This body is responsible for: (a) providing advice to the Home Secretary on the operation of the youth justice system. (b) monitoring the operation and performance of the juvenile system, securing accommodation providers (c) commissioning and allocating secure places for juveniles who have been remanded or being given a custodial sentence (d) providing advice to the Home Secretary on standards for the work of Youth Offending Teams and juvenile secure estate, setting and monitoring performance indicators (5) identifying and disseminating good practice.
(ii) Youth Offending Teams: Since the Crime and Disorder Act 1998, each local authority is obliged to establish a Youth Offending Team. This body is mainly responsible for the assessment of young offenders on initial contact with the juvenile system, as well for providing pre-sentence reports to the courts. For offenders who are given community orders, the teams need top ensure that appropriate supervision and programmes are in place. Youth Offending Teams are also responsible for placing offenders on remand into appropriate accommodation, as well as ensuring that those who are on Detention and Training Orders and other custodial sentences receive appropriate programmes while in custody, as well as appropriate supervision on release. Each Youth Offending Team is required by the Act to include at least one: probation officer, social worker, police officer, person nominated by a health authority, person nominated by the chief education officer and nominated housing officer. The teams receive direct funding from the Youth Justice Board.
(iii) Orders and other programmes: A range of new non-punitive measures became available to youth courts through the Act. These are primarily used to tackle offending behaviour and its causes among juvenile offenders.
(iv) Detention and Training Orders: These are orders that can be imposed on juveniles and can be for a term of 4, 6, 8, 10, 12, 18 or 24 months, half served in detention and the remainder in the community under the supervision of a YOT worker. They can be imposed only to juveniles convicted of an offence that would be punishable by imprisonment for someone aged 21 or over .
(v) Intensive Supervision and Surveillance Programmes (ISSPs): These programmes are appropriate for young offenders who have been charged with or warned for an indictable offence on four or more occasions within the last 12 months and have previously received at least one community or custodial penalty. The programme places emphasis on restorative justice, education and training, and changing offending behaviour. Young offenders who are given an ISSP are supervised and monitored either by tagging, voice verification, intelligence-led policing or tracking. ISSPs are targeted at the 3% of juveniles who commit 25% of all offences. They can be a part of bail supervision, a community penalty, or it can be used during the second half of a Detention or Training Order.
(vi) Bail Supervision and Support programmes: These are designed to minimise the need for remand. They are complemented by a Remand Review programme contracted to the Children’s Society which urgently reviews the appropriateness of remand placements.
(vii) Parenting Orders: These orders target the young offenders’ parents/guardians and are meant to increase responsibility and awareness. In general terms, the have two elements, failure to comply with which is a criminal offence. The first places a requirement on parents/guardians to attend counselling or guidance sessions where they receive help in dealing with their children. The second places a requirement to exercise control over their children’s behaviour. The duration of this part of the order may last for up to 12 months.
(viii) Reparation Orders: These are innovative orders which were introduced through the Act and which aim to take into account the wishes of the victims of crime when imposing sentences on young offenders. They allow amends to be made, and aim to confront offenders with the consequences of their actions. In general terms, reparation orders require convicted juveniles to make specific reparation either to the individual victim of the crime, where the victim desires this, or to the community that has been harmed.
(ix) Supervision Orders: These are given to any young offender, and can last between three months and three years. The convicted juvenile is supervised by a YOT worker and may be required to undertake specified activities to address their offending behaviour.
As it is obvious from the above account of the Act’s innovative features, the use of punishment (in the sense of incapacitation or just deserts) is avoided, while more inclusive and responsive methodologies are adopted. Therefore, the philosophy of the youth justice system is shifted towards the restorative ideals, while punishment is left as a last resort.
The Crime and Disorder Act 1998 was the first step in a series of other reforms which were introduced in order to bring the youth justice system in line with the restorative justice ideals. In combination with the Youth Justice and Criminal Evidence Act 1999 and a number of primary and secondary legislation that followed it, it fundamentally changed the punitive monolithic practice, which characterised the juvenile system for almost two hundred years.
So far, the results from these reforms seem to be largely positive . Arguably, one of the best evidence for this claim is found in the Audit Commission’s 2004 Report “Youth Justice 2004: A Review of the Reformed Youth Justice System” . In contrast to the Commission’s last critical report, this one was praising the youth justice system for being responsive and effective. In fact, it encouraged reformers for more adaptations using the same philosophy and congratulated the Youth Justice Board for its lead in this process. It said: “…The YJB provides a clear national framework and takes a lead role in monitoring performance and developing policy. As a consequence, persistent young offenders are dealt with more promptly by the courts and most magistrates are satisfied with the quality of service received from YOTs. Young offenders are less likely to commit offences on bail and the reconviction rates for the new pre-court interventions, such as police reprimands and Final Warnings and court orders have fallen” .
There can be no doubt that the Crime and Disorder Act 1998 along with the legislative (e.g. Youth Justice and Criminal Evidence Act 1999) and policy adaptations that followed it is the most important and liberal piece of legislation ever passed in the field of youth justice in the country. Its elements such as restorative conferencing, youth justice teams and boards, reparation orders, reprimands and warnings introduced a restorative character to the system taking it a step away from the punitive and welfare model that dominated the criminal justice practice in this area for over two hundred years.
- Audit Commission. 1996. Misspent Youth. London: HMSO.
- 2004. Youth Justice 2004: A Review of the Reformed Youth Justice System. London: HMSO.
- Crawford, Adam and Tim Newburn. 2003. Youth offending and restorative justice : implementing reform in youth justice. Cullompton: Willan.
- Davies, Malcolm, Hazel Croall, and Jane Tyrer. 2005. Criminal justice : an introduction to the criminal justice system in England and Wales. Harlow ; New York: Pearson Longman.
- Gelsthorpe, Loraine and V Kemp. 2002. “Comparative Juvenile Justice: England and Wales.” in Juvenile justice systems : international perspectives, edited by J. Winterdyk. Toronto: Canadian Scholars’ Press.
- Home Office. 1998. No More Excuses-A New Approach to Tackling Youth Crime in England and Wales. London: HMSO.
- Newburn, Tim. 1997. “Youth, Crime and Justice.” in The Oxford handbook of criminology, edited by M. Maguire, R. Morgan, and R. Reiner. Oxford: Clarendon.
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Pitts, John and British Association of Social Workers. 1999. Working with young offenders. Basingstoke: Macmillan.
Winterdyk, John. 2002. Juvenile justice systems : international perspectives. Toronto: Canadian Scholars’ Press.