The actions of the human race can be seen, albeit sometimes after careful examination, to be influenced by certain beliefs or values. In some cases the endeavours of an individual are as a response to some event; whether this reaction is deliberated over or a ‘knee- jerk’ one, it can normally be associated with some past occurrence. Most Acts of government reflect the ideologies of the ruling party and, in some respects, what the people of England and Wales feel strongly about at that given epoch.
When studying the legislation which directs how young offenders should be treated, as this essay will do shortly, it is possible to detect certain trends. At some points the courts were directed to deal harshly with young offenders. Harsh treatment varies in severity, from hanging in the eighteenth century to the ’short, sharp, shock’ of detention centres advocated more recently. A more humane approach is also detectable within the history of juvenile justice, whereby the correction or treatment of young offenders is directed away from the penal system and towards welfare experts. There is also some legislation which can be regarded as a reaction to a certain event, as has happened recently with regard to the treatment of young people who have committed very serious crimes but, although these examples are not very common, it provides concern as to how far policy is geared toward addressing issues.
This essay will concentrate on the last 30 years of juvenile justice policy, a brief outline of the changes which have occurred in this area over a longer period will be provided in order that the debate may have some context historically (Morris & Giller 1987). Recent legislative changes and the underlying assumptions which have influenced them will then be discussed. Firstly, however, different approaches to juvenile justice will be considered.
There are two major approaches to juvenile justice, the welfare approach and the justice model. The justice model, has as its cornerstone the notion that the punishment meted out should be proportionate to the crime committed; as such it is commonly known as the “theory of commensurate deserts” (Hudson 1987: 38). Proponents of this model favour a legalistic and offence-oriented system, so that children and young people, if found guilty at a trial where they are entitled to legal representation can be punished for an act committed.
Hudson (1987: 37-38) suggests that the increasing popularity of the justice model ‘is due in large measure to the way in which it appears to offer all things to all people’. To those who favour consistency in sentencing over the discretion of welfarist approaches, a sentencing structure is available; to those who favour strictly punitive justice over child-oriented welfare approaches, ’swift and sure punishment’ is guaranteed; and to those who favour the more welfarist approach, the justice model, while providing many alternatives to custody, offers to imprison only the most serious of offenders.
The welfare model of justice, which was at its most popular in the 1960s, has as a central feature a theory of depoliticisation; the assumption being that “..juvenile offenders, unlike other juveniles in trouble, were not responsible for the circumstances which brought them before the juvenile court. The juvenile court, therefore, was to focus its attention on the status of the juvenile, rather than his or her conduct and its function was to remedy this rather than punish the offence.” (Morris & Giller 1987: 81-82). In short, the problem of crime is placed in the context of a wider deprivation. The welfare approach to juvenile justice, then, proposes a substantial shift in power, away from the courts and legal profession, and towards welfare professionals.
As Smith et al (1988: 29) note, the criminal justice system in England and Wales has developed over centuries, and is founded on the concept of ‘natural’ justice. Natural justice, in its turn, is based on the premise that, firstly, an individual may not be judge in their own cause; and secondly that, in the words of a 1924 judgement “it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.” (op cit: 31). It is this model that the juvenile justice system in England and Wales, as well as a great many criminal justice systems in other countries, is based on. The juvenile legislature has been modified a great many times over the last 30 years, but the actual foundations of the system which was essentially a system aimed at adults – have never been explored.
It is believed that in the eighteenth century, when the age of criminal responsibility was seven, the majority of offenders who were hanged for crimes were under the age of 21. During the next century modifications gradually occurred when the first prison for offenders under 18 opened on the Isle of Wight, and the distinction between children and adults before the law was made. The 1908 Children Act established juvenile courts which, although recognising that young people have different needs to adults, merely replicated the procedures of adult courts – “the prevailing idea was that the juvenile was a wrongdoer and the old procedures for dealing with adult offenders were thought to be appropriate in most respects for dealing with juveniles.” (Morris & Giller 1987: 11).
The period 1908 to 1933 was a distinct example of the ‘justice’ model of punishment of juveniles. In 1908 specialised centres for the detention of young people were set up, the first being in Borstal in Kent. The ‘Borstal Philosophy’ was based on the regimes of public schools, advocating discipline and work training. The 1933 Children and Young Persons Act made provision for the education and training of young offenders, as well as extending the jurisdiction of the juvenile court to 17 year olds. The Act also raised the age of criminal responsibility from seven to eight, placed restrictions on the media’s powers to publish the identification of young offenders and included Section 53, which concerned the treatment of children or young adults who commit grave offences.
The period before the Second World War saw emergence of the ‘welfare’ model of justice, where the legislature and judiciary concerned themselves for the first time with directives which are in ‘the best interests of the child or young person’. After the War, along with Acts to disperse the ‘Five Giants’ came another Criminal Justice Act.
The 1948 Criminal Justice Act saw the abolition of corporal punishment and the introduction of detention, attendance and borstal centres. The 1950s saw an increase in juvenile crime, and calls for harsher treatment for young offenders. However, as the Ingleby Committee of 1956 which, chaired by Viscount Ingleby, was set up to review the juvenile court, remarked “It is not possible any longer to feel sure that our methods of dealing with the problems of children in trouble…are generally sound and sufficient and are necessarily developing along the right lines”. ( cited in Morris & Giller 1987:
60). The Committee, which pointed out the differences between the delinquent and the deprived, suggested that the age of criminal responsibility should be raised to 14, and that below this age any proceedings to do with juvenile offenders should be taken in a welfare setting.
The Act that followed the Report of the Ingleby Committee, the 1963 Children and Young Persons Act, reflected some of the sentiments but stopped short, in that the age of criminal responsibility was raised to 10 and not 14. A breakthrough was made at this stage in that the Act empowered local authorities to allocate resources for the prevention of delinquency in their area, thus viewing the concept of juvenile crime as part of a more complex social environment and also introducing the notion of ‘intervention’ and ‘prevention’ within juvenile justice. Many workers within the juvenile justice system in England and Wales today continue to view the philosophy introduced by the Ingleby Committee as the most appropriate in this field; and they attempt to work within that particular framework despite what may be viewed as the conflicting philosophy which is at the root of the most recent Criminal Justice Acts.
Before the next Act of Parliament to affect the treatment of juvenile offenders was passed, there came two White Papers; the first, in 1965 entitled ‘The Child, Family and the Young Offender’ recommended that a system of family courts should replace the existing juvenile courts. This suggestion was in keeping with the welfare model of justice prevalent at this time. Indeed, in 1978 the Conservative Political Centre produced a pamphlet advocating family courts as an improved alternative to magistrates courts when dealing with marital breakdown and the situations that may arise from a divorce or separation. The authors of the 1965 White Paper also saw the benefits of this informal, less adversarial setting while dealing with young offenders. In England and Wales the idea did not advance any further than the White Paper, although there is a system of family courts in Scotland which is viewed the most appropriate by some practitioners.
The second White Paper ‘Children in Trouble’ was published in 1968, and although the authors recommended that young offenders aged 14 to 17 should be diverted away from the formal system of courts as much as possible, with the cessation of prosecution for the those aged under 14, the authors proposed that juvenile courts be retained. The result of six years consultation was the 1969 Children and Young Persons Act, which is considered to be the most welfare-oriented Act to do with young people.
One of the sentences made available to the court after the Children and Young Persons Act 1969 was Intermediate Treatment (IT), with the intention of phasing out attendance and detention centres. However, by the mid 1970s IT had become a provision solely for social compensation involving education and therapy and only very rarely as an alternative to custody. Comparable to the philosophy of the justice model, IT became all things to all people (Smith 1979: 93); this was, in part, due to the fact that there was no fixed definition of IT allowing magistrates and others involved to interpret its meaning depending on which young offender they had before them.
This Act broadened the scope of juvenile courts to include care proceedings as of right to juveniles aged 10 to 14, and optional for those aged 14 to 17. This Act was heralded as a new dawn in juvenile justice, the court was now able to issue care orders if they believed that the welfare of a child or young person was in danger. It was in the hands of the Local Education Authority to inquire into the possibility for care orders, and this was considered to be beneficial to the young person in that a partnership was required in order to meet the best interests of the child. Although welfare elements contained within the 1969 Children and Young Persons Act were never implemented, the intentions – which were mainly of a social compensatory nature – reflected the general feeling that the justice model was not working.
The 1972 Criminal Justice Act saw the beginning of the trend to treat juvenile offenders less harshly, that is, to make greater use of cautions and fines and encourage greater parental responsibility. Ashworth notes that this “demonstrated that it is possible to greatly reduce the severity of response to offenders without risking new waves of youth crime.” (Ashworth 1992: 20) The Criminal Justice act ten years later legislated that imprisonment or Borstal training were no longer options for persons under the age of 21 found guilty of an offence; detention and youth custody centres were the options for young people found guilty of a crime deemed so serious as to warrant custody, under S53(2) of the 1933 Children and Young Persons Act. The other options made available in the Act, with the exception of giving young people the right to legal representation, saw a definite move towards control, and an emphasis on parental responsibility.
The care order that had been introduced to the judicial system in 1969, had ‘fallen into virtual disuse’ and was abolished by the Children Act 1989; it was suggested that provision should be made for children and young people who were in need of ‘care’ to be diverted before reaching the criminal justice system. “As well as recognising the substantial decline in the use made of the care order, the government has noted that a care order in criminal proceedings conflicts both with the principle of determinacy in sentencing and with the government’s view of the importance of parental responsibility.” (Ashworth 1992: 16)
The Criminal Justice Act 1991, brought with it sentencing guidelines and a move towards more alternatives to custody. The act also allowed the maturity of young people aged 15 to 17 to be taken into account, as opposed to using the 17th birthday as hard and fast proof of development into adulthood. The protection of child witnesses was also increased when video recordings of child testimonies were allowed. In 1991 Youth Courts were introduced to replace juvenile courts, together with an extension of jurisdiction so that the range of young people eligible to be tried as juvenile is increased one year to age 17. Parental responsibility is again strongly emphasised, as is post-custodial supervision for offenders under the age of 22 (Ashworth 1992: 42). This condition is compulsory and failure to comply or a default could result in the young person being readmitted to prison, a fear which was raised after the publication of the 1991 White Paper ‘Crime Justice and Protecting the Public’.
Morris & Giller (1987: 1) note that “systems of juvenile justice do not, of course, exist in a social policy vacuum. They co-exist alongside other systems or networks of social control which also seek to regulate the lives of juveniles.” There have been a number of policy changes that have affected young people in recent years, and not all of them beneficially; the 1986 Social Security Act reduced benefits for the under 25’s and removed all benefits for 16 and 17 year olds (NACRO 1991: 44). The concept of rights for young people advocated in the 1989 Children Act does not appear to extend to young people who find themselves either caught up in the juvenile justice system or in a disadvantageous situation, for example homeless.
Judge Tumim remarked that “The statistics which in fact show a substantial fall in juvenile offending over the past 10 years are forgotten. There is a call for detention centres or for borstals or for something of that kind. It seems only too possible if such a system were to be introduced it would be likely to increase crime in the future and to inflate the prison population.” The fall in the number of juvenile offenders over the last 10 years is partly accounted for by the decline in the juvenile population.
Crime rates, however, have also fallen – in 1978, of every 100,00 young people aged 10 to 16 years, 3,233 had committed an indictable offence; ten years later the comparable figure was 2,783 per 100,000 – (Source:
NACRO Briefing 1989). Notwithstanding this cautionary note, the Government is pressing on with its plans to build more secure units for young people. This is not without its implications for the relatives of young offenders; in a written parliamentary answer to Ms Ruddock, it was revealed that the average distance relatives of young people in closed young offender institutes had to travel to visit them was 75 miles (HMSO 25 1994: 253).
It has hopefully been shown that there have, and continue to be mixed feelings as to how to ‘deal’ with young offenders in England and Wales. The advocates of ’short, sharp, shock’ punishments have had considerable influence on policy throughout the last century, whereas arguments for a more welfarist approach have also been popular, especially in the late 1960s and early 1970s. The result of these developments, in hindsight, is that the popularity of both the positivist ‘welfare’ model and the retributivist ‘justice’ approach to juvenile justice can be seen in to be cyclical.
Asquith notes that an ambivalence towards young people in trouble “is not a new phenomenon in relation to justice for children. Children have always posed conceptual and philosophical problems for the criminal law by virtue of their age and status of dependency on adults.” (Asquith 1983: 4) It is possible that the Criminal Justice Bill 1994 with its intention to build 5 new privately run secure units for young offenders will see a return to more retributivist justice. In Scotland, family court exists so that the parents and young person may have an opportunity to participate in the proceedings; in England and Wales, there appears to be an increasing amount of professional input as to what is ‘to be done to’ the young person and a decreasing amount of discourse on reparation and rehabilitation.
Despite many changes within the juvenile justice system, and many differing opinions as to the causes of juvenile crime, and whether the welfare model or justice model is best suited in punishing young people who have broken the law; noticeable by its absence from the debate is the justification for using official and increasingly punitive measures to deal with juvenile justice.
A ASHWORTH et al The Youth Court Waterside Press 1992
A ASHWORTH et al Introduction to the Criminal Justice Act 1991
Waterside Press 1992 (b)
S ASQUITH Children and Justice – Decision making in Children’s hearings
and juvenile courts Edinburgh University Press 1983
E BURNEY Sentencing Young People – What went wrong with the Criminal Justice
Act 1982 Blackmore Press 1985
Society of Conservative Lawyers Conservative
Political Centre 1978
HMSO White Paper ‘Crime Justice and Protecting the Public’ cm 965 HMSO 1990
1657 23 May to 26 May 1994 HMSO 1994
and Order Association for Juvenile Justice 1985
B HUDSON Justice Through Punishment – A Critique of the ‘Justice’ Model
of Corrections Macmillan Education 1987
B A HUDSON Penal Policy and Social
Justice Macmillan Press 1993
A MORRIS & H GILLER Understanding Juvenile Justice Croom Helm 1987
NACRO NACRO BRIEFING NACRO December 1989
NACRO Preventing Youth Crime Juvenile Crime Committee; Policy Paper
3 NACRO 1991
NACRO Criminal Justice Act 1991 – Defendants And Offenders Under 18….
H PENGELLY Juvenile Justice Under the Tories University of East Anglia
C R SMITH et al Child Care and the Courts Macmillan Education 1988
R SMITH Children and the Courts Sweet & Maxwell 1979
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