Download Presentation by Judge Smyth

From Waitonga to Belfast
Judge David Smyth QC.
Cessare Beccaria
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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
11th June 1800
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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.
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
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Dunedin New Zealand 1984 and
1986
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“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.
Age of Criminal responsibility
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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.
Two competing themes
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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:
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.
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Eight Key Questions when children
come into contact with the law
1.
2.
3.
4.
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?
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?
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.
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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.
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
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Continued
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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%
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
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Queens Institute of Criminology
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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)
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.
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Results
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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.
Court and PPS results
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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.
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.
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Lord Clyde
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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.
Proposals
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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.
Crown Court Clip Southwark
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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.
Three elements of Group
Conferencing
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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.
Conclusion
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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.
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.
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