From Waitonga to Belfast

1. From Waitonga to Belfast Judge David Smyth QC.

2. Cessare Beccaria • In order that any punishment should not be an act of violence by one person, or by many, against a private citizen it is essential that it should be public, prompt, necessary, the minimum possible under the circumstances, proportionate to the crimes and established by law

3. 11th June 1800 • Mary West (and her mother) • Charge of theft • 14, unrepresented and convicted • Sentenced to be hanged • Commuted to transportation • Now 216 years since the first fleet landed in Port Jackson • French concept Penal reform and colonisation.

4. Does Detention work? • It may be necessary • It may be expected • It may prevent • It may deter • It may be the minimum required • Public, prompt (?), established by law • It should be civilised and humane

5. Dunedin New Zealand 1984 and 1986 • “there are a number of children running the streets of Dunedin…without control of their parents. If the Government does not take them in hand…they will become…members of a criminal class. • “there is a definite relationship between the increase in the number of children on the streets and the increase in juvenile crime.” • Headlines are from Otago Daily Times 1884 and 1886 (Dr Gabrielle Maxwell) • Anyone who has read Dickens, whether Oliver Twist or Bleak House and Jo, the crossing sweeper.

6. Age of Criminal responsibility • Wide disparity e.g. Portugal = 16; England and Northern Ireland = 10; Scotland = 8 • UNCROC does not specify a minimum age but the UN Committee has criticised jurisdictions in which minimum age is 12 or below • Cultural norms; complex questions of maturation and development involved; • doli incapax, the rebuttable presumption that children are criminally incapable has gone in NI. • Legitimate area for debate.

7. Two competing themes • The desire, and need, for longer sentences in prison. • The desire to try and find effective, and less expensive, alternatives to custody. • Examples of first, authoritarian, desire: • Examples of second, liberal, desire: • Examples of alternatives that might be regarded as authoritarian but not involving custody:

8. Children In Conflict with the Law • “Givens”: • Specialist legislation for child offenders. • A separate Children/youth court • Specialist protections e.g. restrictions on arrest, identification. • Specialist should always deal with children whether they are police, social workers, advocates.

9. Eight Key Questions when children come into contact with the law • At what age should children be held liable for their actions in court? • To what extent should child offending be considered as raising care and protection issues? • Do all children who break the law need to be charged and brought to court? • Should the state’s power here be (partially) transferred to families, victims and communities?

10. Eight questions: 5. Should children actively participate in formal criminal processes? 6. Should a child ever be transferred to the adult criminal court for trial/sentence? 7. Are we consistent with best international practice and is our response “evidence based”? 8. What use should be made of detention centres/prison for young offenders?

11. Film Clip Welfare v Crime • How do you identify and assess what is more a welfare issue? • Who does this? • In this context where sits the age of criminal responsibility and who exactly assesses what welfare issues exist and how these issues are causative of crime.

12. Restorative Justice? Restorative Justice seeks to balance the concerns of the victim and the community with the need to re-integrate the offender into society. It seeks to assist the recovery of the victim and enable all parties with a stake in the criminal justice process to participate usefully in it.

13. History in NI. • 1994 Portballantrae • Restorative Justice Working Group • Greater Shankill Alternatives • Community Restorative Justice (Ireland) • Criminal Justice Conference 1997 • Criminal Justice Review 2000 • Justice (NI) Act 2002

14. Continued • December 2003 • Evaluation 2006, Institute of Criminology and Justice at Queens. • 185 conferences observed • Structured and semi-structured interviews • 458 ordered Now 1449 (esp last 3 months) • 134 by PPS Vast increase 145 in 3 months. • 324 by courts (291 last 3 months) • 34% acceptance in Belfast courts, 90% now 5%

15. Evaluation • 53% of referrals related to offences of intermediate seriousness against the person and against property. • 23% were for serious offences and 21% for minor. • Concerns about process of court referral and consent. • Average age 16

16. Queens Institute of Criminology • The conference: 75% of referrals to YCS result in a Conference. Both types completed in time. • Significant number of court ordered conferences related to children in care! • Victim participation rates high at 69%. 70% • Divided between 40% personal attendance, 47% attendance by a representative and 13% by representatives where there was no individual victim. Personal attendance 59% (13% GB and 50% NZ)

17. Opinions • Victims and offenders express appreciation for high degree of preparation. • Victims express overall satisfaction. 79% say they attended to help the offender. • Of offenders the vast majority express a desire to help the victim, to hear what the victim had to say, to make up for what they had done and to be forgiven.

18. Results • Apologies expressed 87%. Almost unanimous in those where there was an identified victim. • Shame 77%. Remorse 92%. • Contributory factors like substance abuse, family problems and peer pressure discussed at most conferences. • After the conference 81% of offenders felt better and 48% of victims. This is now 90% October 2006 • 92% of offenders and 78% of victims felt the conference had helped them realise the harm they did. • The vast majority of both victims (88%) and offenders would recommend a conference.

19. Court and PPS results • Overall two out of three plans were approved, now 95% • All plans returned to PPS were approved • Most plans that were rejected were rejected on the basis that the offence was too serious for the imposition of an Order, but in some cases the offence was not deemed serious enough. • Of these disposal was either by a conditional discharge or by a period of youth custody.. • The average time for a plan to be committed was 67 days.

20. Two views • David Bowes: Restorative Justice: The Evidence. Justice of the Peace 168, 13th November 2004. • Hoyle, Young and Hill. Proceed with Caution: An Evaluation of Thames Valley Police in Restorative Cautioning. Joseph Rowntree Foundation 2002.

21. Lord Clyde • It is unfortunate that the name “restorative justice” is liable to be misunderstood. It is certainly desirable that efforts be made to achieve a greater understanding on the part of the public about the substance and the advantages of restorative justice….the schemes provide an opportunity for engagement with the community and should not be seen as a threat for the whole system. It would be unfortunate if the present opportunity for dialogue was missed and the whole range of possible methods for dealing with problems at a community level in a manner which is consistent with and which supplements the work of the statutory agencies was lost to Northern Ireland.

22. Proposals • All those concerned in the progressing of this recommendation are to be congratulated on the positive steps that they have been taking and in particular the readiness of all of them to engage in discussion. All that gives room for hope. • Now that the opportunities have been grasped for serious discussion both in principle and in detail, the momentum should not be lost. But all parties must recognise the sensitivities in this area and the necessity for flexibility. However in progressing this recommendation, points of difference may be open to resolution as matters of practice rather than principle.

23. Crown Court Clip Southwark • Adult offenders. Crime of robbery. The difficulties experienced. Penalty imposed. • Down case in the nineties. • Antrim, the case of the gardener and the soldier. • Zoe • Death by Dangerous Driving. • Less serious sex offences in a family context.

24. Three elements of Group Conferencing • Partial Transfer of sentencing power from the State, principally the courts’ power, to the community. • The conference is a mechanism for producing a negotiated, community based response that allows welfare issue to be addressed. • The key is to involve victims as key participants, without risk to them, making the process impact on the offender with solace for the victim.

25. Conclusion • Less use of courts • Every juvenile case gets a conference • Evaluation is essential. It seems that early suggestions are that re-offending rates have certainly not increased. • Satisfaction expressed is high. • NZ experience from 1989 has shown youth crime static despite a vast decrease in use of detention and a universal system of FGC together with a huge diversion from courts.

26. Problems • Scope for manipulation • Effect on morale of multiple conferences • Lack of a discretion: advantages and disadvantages. • Increase in age from 17 to 18 and arrival of more minor motoring offences. • Need for monitoring and enforcement and application of resources.