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Effect of Intervention Programmes on Youth Crime

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The Howard Journal Vol 45 No 2. May 2006 ISSN 0265-5527, pp. 129–140

Restorative Final Warnings: Policy and Practice
DARRELL FOX, MANDEEP K. DHAMI and GREG MANTLE
Darrell Fox is Consultant Social Worker, Havering Youth Offending Service, London Borough of Havering; Mandeep K. Dhami is Lecturer in Criminology, Institute of Criminology, University of Cambridge; Greg Mantle is Reader in Social Work, Institute of Health and Social Care, Anglia Ruskin University
Abstract: This article explores the diversionary measure of restorative final warnings within the context of the youth justice system. We examine the philosophy and rationale of the new era in cautioning and discuss the potential practice implications since its implementation in 2000, under the statutory legislation within the Crime and Disorder Act 1998. To date there has been very little research or academic debate on the new system of police cautioning of youth. Additionally, as final warnings develop a greater association with restorative justice practices, we explore how this ‘pre court’ intervention has the potential to broaden oppressive and discriminatory practices within the youth justice system in relation to particular societal groups.

We will begin by explaining how police cautioning of youth has changed with the implementation of the Crime and Disorder Act 1998 and then explore contemporary police practices and outcomes regarding youth and the restorative final warning scheme. We will highlight the conflicting nature of the new scheme which requires voluntary agreement throughout its statutory process to ensure successful completion. We will also demonstrate that the systematic implementation of final warnings has reduced police discretion and increased levels of police accountability, and that this, in turn, appears to have increased the potential for net widening and disproportionate punitive outcomes received by young people, especially regarding young females. Crime and Disorder Act 1998 The Crime and Disorder Act 1998 was an attempt by the British government to establish a statutory obligation on local authorities and professional bodies to create a unified and structured approach to responding to youth crime (Card and Ward 1998; Home Office 1998). Section 37 of the Act states that: ‘It shall be the principal aim of the youth justice system to prevent offending by children and young persons’. This is to be achieved by placing a duty on local authorities to create

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multi-disciplinary youth offending teams (YOTs) that establish youth crime strategies to address and prevent youth crime. Cautioning and the Final Warning Scheme Police cautioning for youth in England and Wales changed with the advent of the Crime and Disorder Act 1998. It was no longer appropriate for youth to receive repeated cautions for acts of anti-social and offending behaviour considered not serious enough for the young person to be charged and processed formerly through the court system (Nacro 2000a). Over time, the established cautioning approach was seen as unsuitable and the concept of warnings with various interventions was soon practised successfully under the title of ‘cautioning plus’ (Home Office 1997; Leng, Taylor and Wasik 1998). This approach offered police some discretion and when officers felt that greater intervention was required to help a young person, they could refer them to various programmes with the remit of addressing offending behaviour and possible welfare concerns. These interventions covered a number of areas such as direct and indirect reparation to the victim, the community or both; compensation, community work, and referrals to statutory agencies, such as social services (Home Office 1997; Card and Ward 1998; Leng, Taylor and Wasik 1998). However, cautions and cautioning plus were discredited in many quarters and viewed as being too unstructured, their criteria for intervention were considered too vague and their outcomes too imprecise (Home Office 1997; Pitts 2003; Youth Justice Board News 2003, p.1). With the Crime and Disorder Act 1998, police cautioning in England and Wales was replaced by ‘police reprimands and final warnings’, which curbed police discretion, and, as such, the young person could receive either a reprimand or warning depending on the seriousness of the crime, before being fast tracked to court. Section 65 of the 1998 Act provides: ‘that a first offence can be met with a reprimand, a final warning or criminal charges depending on its seriousness. Following one reprimand, any further offence will lead to a warning or a charge. Any further offending following a warning will normally result in a charge being brought. There is provision for a second warning to be given only in the limited circumstances where the latest offence is not serious and more than two years have passed since the first warning was given’. In addition, the 1998 Act places statutory obligations on the police and YOTs to ensure that structural interventions by way of a programme of rehabilitation or ‘change’ (Home Office 1999; Nacro 2000c; Giller 2004) occur at the final warning stage of the procedure. This means that the ad hoc and informal system of cautioning plus was to be systematically used at certain stages of the youth justice process, combining an assessment by the YOT police officer and/or interventions from specialist workers within the YOT or wider community (Leng, Taylor and Wasik 1998; Giller 2004).

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Diversion and Intervention The police have essentially four options to choose from after having arrested a young person following an investigation into a crime. These range along a scale of offence seriousness, from taking no action at one end of the spectrum, through reprimands and final warnings, to invoking the court process at the other end of the scale (Nacro 2000b). This decision is made at the police station by the custody officer, who considers the seriousness of the offence using a gravity scale and also takes into account any police intervention such as a reprimand or final warning given previously (Nacro 2000a; Evans and Puech 2001). A decision made to issue a final warning triggers an automatic referral to the YOT police officer who undertakes an assessment using the Youth Justice Board Risk Assessment tool called ‘Asset’. The Asset is a standardised proforma that is scored to ascertain the level of risk that the young person poses to themselves and to society. The assessment compiles data from the young person and their family and as a result a possible intervention programme is designed with the intent of addressing the welfare and/or criminogenic difficulties highlighted by the Asset. The young person’s engagement with the intervention at the YOT remains a voluntary action, although voluntary choice is a problematic concept in the context of final warnings and reprimands. Since 2000, reprimands and final warnings are both cited in court hearings when a young person appears on a charge. Compliance or noncompliance with a final warning programme is cited in YOT court reports and reprimands and final warnings remain on the Police National Computer for a period of five years (Evans and Puech 2001). Whether a young person attended, engaged, and complied with a previous final warning programme has a potentially detrimental effect on current and future sentencing disposals. The element of choice to engage with a final warning programme is rather a contentious issue and one that has been discussed by authors concerned about the prospects of ‘proportionality’, ‘net widening’ and ‘up tariffing’ (Pickford 2000; Nacro 2000c; Pitts 2003). The Youth Justice Board, along with government ministers, highlighted that the final warning intervention programme must have a restorative justice element to make it more meaningful and effective and to ensure that the offender is held accountable for his/her actions (Dignan 1999; Nacro 2000a; Pitts 2003; Giller 2004; Youth Justice Board 2004a). This element covers a multitude of interventions, effectively extending those used in cautioning plus such as mediation, direct or indirect community or individual reparation, and various uses of family-group conferencing. The restorative ‘final warning’ and ‘adult cautioning’ programme practised in the Thames Valley area is perhaps the most cited restorative justice scheme that uses a restorative conferencing model and restorative cautioning practices. This innovative approach to established police cautioning has, according to research, initially made successful inroads into achieving good satisfaction rates amongst victims and offenders, and a reduction in the reoffending rates (Hoyle, Young and Hill 2002).

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Restorative Justice and Restorative Final Warnings Restorative justice is heralded as a just and fair way to deal with criminal behaviour, a new unified theory of justice, a paradigm shift in how we think about crime and justice (Richardson 1997; Umbreit and Coates 1999; Du Pont 2001). Restorative justice moves the established notion of a crime being committed against the State, to one that focuses on the actual victim and community where it occurred, and dealt with by those most affected by it (Morris 2002). In terms of process and approaches, as Dignan (1999) points out, the aims of restorative justice are ‘to engage with offenders to try and bring home the consequences of their actions and [to give them] an appreciation of the impact they have had on the victim(s) of their offences’ (p.48). The literature on final warning implementation highlights that the period of bail is such that the Asset assessment can be undertaken and the views of the victim can be ascertained. This then allows for consideration of a restorative conference or intervention (Nacro 2000a). The type of conference often used has been adopted from the scripted Wagga Wagga police conference model in Australia (Moore and O’Connell 1994; Daly and Immarigeon 1998). Restorative justice interventions and conferences require a great deal of preparatory work. The victim, community members, families, and offender are all interviewed by the YOT police officer to ascertain their willingness to voluntarily participate in the process, and the offender’s motivation to comply with the conference process and outcome is determined. The level of restorative justice intervention depends on the seriousness of the offence. Less serious offences are often dealt with by a one-to-one restorative intervention, taking the form of an interview between the police officer, young person and guardian. The officer explains the reprimand and final warning scheme, the consequences of the warning, that is, that it will be on the National Computer and cited in further court cases over the next five years. The young person and the guardian sign the final warning paperwork. The young person is then asked about the offence to motivate him/her to acknowledge and accept the consequences of the offending behaviour and how it had impacted on others. If an offence is more serious or there are numerous welfare issues a restorative conference may be considered.1 The conference may take the form of a meeting to address the criminal offence and its consequences, or a multi-disciplinary conference, in which many professionals, along with family, community and victims are present. The former is considered ‘incident-focused’, limited to repairing the damage caused by a specific offence and the latter, is ‘victim-focused’ or ‘offender-family focused’ where harm caused to the victim and community is addressed. Research and Evidence Based Practice Are these restorative practices and interventions successful in the current climate of ‘what works’ and ‘effective practice’ with young offenders? It

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appears that some of the most successful conferencing programmes like those used in New Zealand have been ‘used not for relatively minor offenders but rather for the most serious and persistent offenders in the youth justice system’ (Morris 2002, p.602). In fact, all but the most serious youth offences are now dealt with by conferences in New Zealand (Pratt 1996). This has been reinforced by examples in England, where Essex YOT have successfully worked with serious and repeat young offenders (Essex 2002). Recent data suggest, as with the Thames Valley scheme research,2 that good satisfaction rates amongst victims and offenders are achieved, compliance rates are high, and reduction of the reoffending rate and the fear of crime are also attained (Latimer, Dowden and Muise 2001; Miers 2001; Hoyle, Young and Hill 2002). However, there has been as much criticism levelled at the Crime and Disorder Act 1998, the final warning scheme, and restorative justice regarding the overly punitive nature of many of the new orders and the potential for net widening and oppressive practices (Evans and Puech 2001). With the thrust of its focus aimed at parental and individual responsibility, the 1998 Act has been criticised for bringing more ‘children, young people and their parents into the purview of [the youth justice] system’ (Pitts 2003, p.61) than ever before. Final warnings, heralded as the first opportunity for intervention within the youth justice system, have been condemned as being overly punitive, disproportionate, and possibly leading to net widening (Evans and Puech 2001; Pitts 2003; Giller 2004). Restorative justice has had similar claims made against it regarding net widening and additionally that it erodes legal rights, fails to restore victim and community, does not reduce offending rates, allows for institutional racism, and re-victimises the victim (Umbreit and Coates 1999; Roach 2000; Morris 2002). Practice Application When applied to youth justice practice, there appears a number of potential problems with this new approach to police cautioning. The finite nature of the reprimand and final warning scheme effectively means that, as a young person, if you come to police notice on two occasions, depending on the seriousness of the offence, then the third time, regardless of the offence you would be sent for a court appearance. This ‘three strikes and you’re out’ policy (Card and Ward 1998; Pitts 1998; Dignan 1999) serves to widen the judicial net and ensnare more youth, much quicker. During the final warning programme, the YOT police officer would undertake the Asset assessment and aim to address the young person’s offending from the victim’s perspective. One would hope that common sense if not proportionality would guide a brief and subtle response to youthful offending. However, there could also be an alarming scenario. If the young person scored high on the Asset, then a rehabilitation programme might be established with a number of referrals made to professionals inside and outside of the YOT (Card and Ward 1998). The

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whole weight of the YOT could come into play, with social services, education, and mental health services all being alerted to the potential of new clients. The assessment could highlight the need for a child protection multi-disciplinary case conference or restorative justice conference to assess and resolve the issues for a family, while assisting the young person to take responsibility for their actions. The Asset may also produce a disproportionate response triggering a disproportionate structural intervention that is a statutory requirement of the police. This leads us to ask the question: Who will ultimately suffer from this new approach to cautioning? Conversely, the level of intervention at an early stage of a young offender’s career is seen as both potentially positive and negative, depending on the offence, the young person’s circumstances, and a proportionate response. A young person could actually be drawn into more criminal activity rather than diverted from it, if the intervention is overly intrusive or punitive and not commensurate with the offence (Nacro 2000a, 2000c; Giller 2004). Additionally, the use of restorative justice interventions could be excessive in relation to the offence and its effectiveness could be questionable. As Bottoms (2003, p.110) suggests, any attempt to use a ‘blanket’ delivery of restorative justice will always achieve modest and/or patchy results. This newly structured and systematic approach to first time offenders seems devoid of the notion of common sense and discretion within its remit. Discretion calls to mind the issue of accountability, bias, and the possibility of a ‘greater amount of State intervention’ (Pickford 2000, p.11). However, it seems that if discretion is curbed, the ability to use common sense is also reduced. As such, the reduction of discretion appears in the case of reprimands and final warnings to increase, rather than reduce, the possibility of future State intervention. The ‘blanket’ restorative responses associated with this pre-court disposal have the potential to draw more young people and their families into the system rather than its perceived goal of assisting them to cease offending and diverting them from the court process (Youth Justice Board 2003). ‘As a consequence, the rise in convictions of girls is a function of a reduced use of measures to divert young people from court (namely . . . reprimands and final warnings’ (Nacro 2001, p.2). The final warning scheme is used for less serious offences and, as such, first or second time offenders are drawn into the system for petty offences. As the research suggests, restorative justice interventions such as conferencing for less serious offences are not as successful as those for more serious offending behaviour. Is there possibly another reason for the systematic ‘three strikes’ absorption of young offenders into the criminal justice system? It is not that the old style of police caution in England was less successful. In ‘1980 71,000 boys and girls aged 14–16 were sentenced by the juvenile courts in England and Wales, by 1987 this figure had dropped to 37,300, a reduction of over 52 per cent. Police cautioning and other less formal modes of pre court diversion were starving the courts of juvenile offenders’ (Pitts 2003, p.7). With the advent of a restricted policy on police discretion ‘between 1980 and 1987 the cautioning rate for girls

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aged 14–16 rose from 58 to 82 per cent. For boys the figures were 34 and 58 percent respectively’ (Pitts 2003, p.7). Diversion and Net Widening The term ‘diversion’ is seen in criminological literature as a way of diverting less serious offenders from the criminal justice system. It encompasses Becker’s (1963) notion of ‘Labelling theory’ in which he suggests that once offenders are given a negative label, for instance, that of ‘criminal’, then they are viewed as such by society. This negates them and marginalises their ability to function as fully integrated members of society. Legitimate activities such as school or employment are denied them, forcing them to perpetuate their label (Becker 1963). If offenders are diverted from the system, they have the potential to avoid a criminal record and label, which offers the possibility of another opportunity to reintegrate into society. Some authors suggest that, rather than diverting offenders away from the system, diversion programmes have actually been absorbed by the mainstream justice system to widen the judicial net, snaring those offenders who would not have been embroiled in the system if these measures were not in place (Hudson and Galaway 1996). Before diversion programmes were introduced and became part of the infrastructure and formal processes of the criminal justice system in the 1970s (Cohen 1985), diversion options were limited and at the discretion of the police. Offenders would either be directed into the formal judicial process or would be diverted completely out of the system. Once diversionary schemes were integrated into the justice system, offenders could be diverted either into or outside the system, either through pre- or post-charge procedures. This ultimately meant that less serious or first time offenders could, at the discretion of the arresting officer, be processed through the criminal justice system, legitimately being diverted while still having a police or criminal record (Cohen 1985). Gender and Criminal Justice Crime statistics are based on convictions, which means that the young person will have been processed from arrest to sentence, through the established criminal justice system. However, these figures do not take note of the diversionary policing that occurs and which potentially widens the judicial net both for young men and for women. The connection of diversion with net widening is particularly relevant for young female offenders, given the effects of entrenched patriarchal assumptions regarding women. Historically and traditionally, young women have suffered more from net widening and from moral and social regulation than their male counterparts. At the earliest entry point into the criminal justice system in England and Wales, young females are disproportionately cautioned relative to young males for summary and indictable offences (East and Campbell 1999). Even though fewer young

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women are detained by police in England and Wales compared to young men – approximately in the ratio of 20/80 – the use of pre-court interventions has increased dramatically (Nacro 2001, 2002; Crime Scene 2003). With the advent of the new final warning scheme, the national figures published by the Youth Justice Board for 2002/2003 show that, of the 73,742 pre-court interventions given for both males and females aged 10 to 17 years, 18,949 were imposed on girls or young women. That equates to 35% of females receiving a pre-court intervention encompassing a reprimand, final warning without intervention, or a final warning with an intervention. Additionally, the figure for final warning with intervention regarding females (which is assumed to be restorative) is 27% of the total figure (Youth Justice Board 2003). Statistics also show that more young women are cautioned compared to young men and that more black youth are arrested than white (Flood-Page et al. 2000; Nacro 2002). The Youth Justice Board breaks down its statistics into separate gender and ethnicity groupings; however, the way the figures are presented does not clarify the ethnicity of the genders involved in particular interventions, so precise figures are difficult to establish. One might question the reasoning for this statistical oversight considering that the Asset assessment and YOT databases do contain this very detailed information. One of the reasons for this offered by the Youth Justice Board relates to the poor recording practices of the youth offending teams which cloud the accuracy of demographic information recorded (Youth Justice Board 2004b). However, on the basis of what is known – that females constitute 35% of the pre court intervention figures and that minority groups comprise over 11% of this total figure – it is clear that these groups are over-represented in the criminal justice system, given that they represent 7.9% of the wider population (National Statistics 2003). Recent Youth Justice Board research (Youth Justice Board 2004b) has highlighted inaccuracies in the way that ethnicity was recorded in the eight YOTs and, although this may have skewed the findings, the research does suggest that mixed race young females are over-represented within the youth justice system. Given the national figures stated above released by the Youth Justice Board, it is not unreasonable to conclude that approximately 2,500 could be females belonging to minority groups, with around 500 engaging in a restorative intervention. It is difficult to say just how accurate this picture is. However, the inaccuracy of the recording practices highlighted by the Youth Justice Board does not account for the lack of data on other aspects of the final warning process. For example, we do not know whether more females would receive a particular type of restorative intervention, a conference for example, rather than a restorative warning. Restorative justice interventions are seen as having a welfare orientation, emphasising particular ‘feminine’ traits such as mothering, nurturing, and relationship building. This oppressive view of women in society manifests itself within the dual roles that women play in the criminal justice system, those of carer and enforcer (Harris and Webb 1987; Brown 1998; Nacro 2002).

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Summary and Conclusions This article has explored the new final warning policy regarding the cautioning of young people and its subsequent implications on practice. We have shown how pre-Crime and Disorder Act 1998 cautioning and caution plus approaches to addressing youth crime, changed with the advent of the new legislation. We also highlighted how restorative justice interventions have been absorbed into the youth justice system as part of the statutory, systematic assessment and intervention process by the police and the YOT. In addition, we have shown that the predetermined three step process to court, along with blanket responses have the potential for positive as well as negative outcomes. The process that propels young people further into the system, net widening, disproportionate and wholesale responses, all occur to varying degrees during the new final warning scheme. The diminishing of police discretion and enhanced youth and police accountability appears to have a number of implications that reinforce welfare concerns, net widening, and proportional responses for the young person. The reduction of police discretion was undertaken to standardise accountability; however, without discretion the system loses elements of compassion and mitigation found within the formal judicial system. Research shows that restorative justice interventions have been more successful with more serious offenders and offences than those dealt with by the final warning scheme. Additionally, the more interventions to which a young person is exposed can have a negative outcome. Gender and race are of special concern and, given the institutionalised sexism and racism found in the system (Cavadino and Dignan 2002), it is more likely to be young women, and especially young women of colour who will be most affected. Recent statistics suggest that this group (young females of colour) who historically have always been on the margins of the justice system, appear now to be particularly vulnerable to the new final warning scheme (Nacro 2001; Youth Justice Board 2004b). The combination of a mandatory warning scheme with an element of voluntary engagement that, complied with or not, has a criminal implication, brings into sharp focus the possibility of State coercion. Knowing that non-compliance could have a detrimental effect in the future could apply pressure on a young person and their family to comply with the restorative final warning intervention. The restorative intervention itself is traditionally based on a voluntary interaction requiring all those in attendance to undertake a process of healing. To be coerced into the procedure, undermines its intentions and outcomes. Restorative justice could potentially change the face of the justice system with its proponents insisting that it is a major change in the way that justice can be done (Dhami and Joy in press; Mantle, Fox and Dhami 2005). However, the current agenda of finite, inflexible rules that impose certain types of restorative justice on certain types of offenders, for specific offences, does not reflect the true meaning or intention of traditional restorative justice. In creating a ‘one size fits all’ strategy, the core value of this approach will be diluted and this can only affect the quality of the intervention.

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The final warning policy at its inception had every good intention. However, in practice the implications of this new approach can be severe for young people. We advocate for a positive rethink in pursuing a standardised, structural response to youth offending that encompasses blanket restorative justice interventions. We would want to see the reintroduction of measured discretion and where voluntary engagement is sought regarding restorative justice interventions, that they be assessed on an individual case need basis and true to its traditional holistic aim. This would place practice issues squarely where they belong, in the hands of the practitioners. Notes
1 For a comprehensive description of restorative justice interventions see McCold (1999). 2 Recent research by Wilcox and Hoyle (2004) has highlighted that the Thames Valley scheme has produced a variety of successful restorative outcomes.

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139 r 2006 The Authors Journal compilation r 2006 The Howard League

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Pickford, J. (2000) Youth Justice: Theory and Practice, London: Cavendish. Pitts, J. (1998) ‘Dear Jack Straw’, Criminal Justice Matters, No. 31. Pitts, J. (2003) The New Politics of Youth Crime: Discipline or Solidarity, Dorset: Russell House. Pratt, J. (1996) ‘Colonization, power and silence: a history of indigenous justice in New Zealand society’, in: B. Galaway and J. Hudson (Eds.), Restorative Justice: International Perspectives, Monsey, NY.: Criminal Justice Press. Richardson, G.D. (1997) ‘Restorative justice: framework for the future of corrections’, Corrections Today, 59(7), 20–1. Roach, K. (2000) ‘Changing punishment at the turn of the century: restorative justice on the rise’, Canadian Journal of Criminology, 42(3), 249–81. Umbreit, M.S. and Coates, R.B. (1999) ‘Multicultural implications of restorative juvenile justice’, Federal Probation, 63(2), 44–52. Wilcox, A. and Hoyle, C. (2004) Restorative Justice Projects. The National Evaluation of the Youth Justice Board’s Restorative Justice Projects. Available at: http://www.youth-justiceboard.gov.uk/Publications/Scripts/prodView.asp?idproduct=166&eP=YJB (accessed 22 May 2005). Youth Justice Board (2003) Youth Justice Board Annual Statistics 2002–2003, London: Pavilion. Youth Justice Board (2004a) Final Warning Intervention: Key Elements of Effective Practice (Edition1). Available at: http://www.youth-justice-board.gov.uk/Publications/Scripts/prodList. asp?eP=YJB (accessed 10 March 2004). Youth Justice Board (2004b) Differences or Discrimination? Available at: http://www. youth-justice-board.gov.uk/cgi-bin/MsmGo.exe?grab_id=264&page_id=9240576&query =discrimination&hiword=DISCRIMINATED+DISCRIMINATORY+discrimination+ (accessed 2 December 2004). Youth Justice Board News (2003) Juvenile Offending Significantly Reduced (Issue 17, April 2003), London: Pavilion.

Date submitted: September 2004 Date accepted: February 2005

140 r 2006 The Authors Journal compilation r 2006 The Howard League

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