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1 DRAFT INTRODUCTION TRENDS IN INTERNATIONAL JUVENILE JUSTICE Josine Junger-Tas 2 The Best Interest of the Child: Although young people can be held responsible for their delinquent acts, all sanctions and interventions should be focused on their rehabilitation and reintegration in society and meet the specific needs which impede their growing up into responsible citizens. 3 CHAPTER I I. INTRODUCTION The way in which children, who are victims of the conditions in which they are living and children who have violated the law are approached, treated, rehabilitated, disciplined and punished, is essentially a reflection of that society’s culture and value system. This is expressed in its vision on children and youth and its views on how to socialize and educate them. In the last decades of the 20th century this vision has undergone drastic change, which led to considerable modifications of juvenile justice legislation both in North America and in Europe. Actually, the main trend in juvenile justice in a number of countries is tending towards an ever more repressive, but not necessarily more effective, system. It is essentially this aspect that worries most of those who are working in the field. The question is what national and local authorities might do to reverse this seemingly inevitable trend, and in particular whether there exist in our part of the world other more effective and more humane ways to prevent juvenile delinquency and to deal with young offenders. In order to answer this question two reports are prepared. The first one, which is the subject of the present publication, presents an overview of the actual juvenile justice system and legislation in 17 European countries and two NorthAmerican ones: Canada and the United States. The reader will note that there are huge differences among these countries in the way they have organised their juvenile justice system. This is not only true with respect to formal organisation but also in terms of the conception of what such a system should be, what policies are used to reach this goal and how to approach young people. Moreover, the differences are not random, but there are specific clusters of countries some of which are geographically close to each other Writing about juveniles1, delinquency and the juvenile justice system I take over the definitions of the Council of Europe, defining a juvenile as someone who is criminally responsible but has not reached criminal majority. Of course it should be observed that age limits clearly vary across countries. Delinquency refers to acts which are dealt with under criminal law, although some countries do include antisocial or deviant behaviour in their juvenile penal law. The juvenile justice system is a formal system that is part of a wide approach to delinquency, including the police the prosecutor system, the probation system and youth institutions, but also agencies such as health, education, social and welfare (Council of Europe Rec(2000)20). This chapter first looks briefly at why and how a separate juvenile justice system came into being and what the general trend of that system actually is. In that respect I also examine the question whether we need a Juvenile justice system at all: may be one criminal justice system dealing with juveniles and adults alike is to be preferred. This section is followed by the most recent law reforms which have been adopted in the countries represented in this book. A puzzling question in this respect is what might have caused the reforms and some hypotheses on that subject are presented. Finally, we will try to draw some preliminary conclusions on the basis of the 19 reports on their juvenile justice systems. The conclusions point to important issues at stake, which will be extensively treated in a second publication. The aim of the latter report is to examine these issues and to come up with a number of answers which might assist authorities to improve their juvenile justice system, and to assemble a number of realistic, preferably tested innovations in juvenile justice procedures and interventions. 1 The words juveniles, young people and children are all included in this definition 4 II. A SEPARATE JUVENILE JUSTICE SYSTEM Looking at the distant past we may state that it is not before the 16th and 17th century that there is a growing consciousness of the community’s responsibility for deprived and delinquent children. People slowly recognized that a situation in which children continued to be the victims of economic and social misfortunes was not acceptable and that therefore more attention had to be given to the conditions in which children were raised. Although according to our present standards juveniles were punished in a barbaric way, with physical punishments such as flogging and branding, documents from that period indicate that some courts took account of the offender’s age and meted out more lenient punishment to young people than to adults (Penders, 1980). In the 18th and 19th century corporal punishment was increasingly seen as morally wrong and as an ineffective educational measure. Much higher expectations were placed on psychological interventions and on the education of children in Christian norms and values and on training in discipline and useful labour in an institution. It was the time when reformatories were created all over the western world (Rothman, 1971; Leonard, 1995). Unfortunately, the consequence of the size and massiveness of the institutions, the emphasis on discipline, the many punishments - using violence and isolation -, was that the central rehabilitative aim disappeared in favour of the dominant goal to preserve law and order within the institution. Despite the undoubtedly good intentions of reformers, the institutions degenerated into youth prisons, characterized by constant overcrowding, large dormitories, strict work schedules, rigid discipline and punishment, and very little real education. Different reform movements were active in the second half of the 19th century. In the United States, the Chicago progressive reformers, considered that to do something about deprivation and delinquency one had to consider the urban environment and the community setting. They campaigned for compulsory schooling and for the abolition of child labour. This reform movement, which spread from the US to Canada and Europe was essentially the outcome of two important developments. First, the urge to rescue children from the living conditions in an increasingly urbanized and industrialized environment. And second, a different conception of childhood, related to social and economic change, such as the decline of the power of the father over his children, the creation of a public school system and the increasingly separate world of children and adolescents (Stearns, 1975; Shorter, 1975). In the light of the new views on children and adolescents, it was felt that the state should intervene and take over the parental role (parens patriae) if parents abused their power or neglected their children. Together with a firm belief in education and rehabilitation, the stage was set for legislation on a separate jurisdiction for children, both in cases of children in need of protection and with respect to juvenile delinquents. One of the first countries to create a modern child protection system was Norway with a law on the treatment of neglected children, enacted in 1896. The first Juvenile court was established in Chicago by the Juvenile Court Act in 1899. The first juvenile justice legislation in Canada is the Juvenile Delinquents Act of 1908, while Belgium, France and Switzerland enacted new legislation in 1912. Not all countries adopted the American juvenile court model. For example, although the first Dutch Children’s laws, which specified the conditions that would justify state intervention to limit parental authority, date from 1901, the institution of the juvenile judge and the supervision order as a civil protection measure were established only in 1922. In France specialized juvenile court magistrates were established only after World War II (Trépanier, 1999). In addition, as we know, the Scandinavian countries developed their own essentially civil system of Welfare boards. 5 However, the characteristics of the juvenile jurisdiction, as it spread all over the western world, whether in the framework of a separate juvenile court, a specialized juvenile judge or a welfare board, are essentially similar. Large discretionary power of the juvenile judge, based on the notion of parens patriae, who had to act ‘in the best interest of the child’. The discretion was not limited to the juvenile judge but referred to all levels of the system: the (juvenile) police, the public prosecutor and the court. The focus of Juvenile justice was the individual child and not the offence that was committed. Much emphasis on treatment in stead of punishment. Later on this led to a broadly supported extra-judicial diversionary practice, on the level of the police as well as on the level of the public prosecutor, often in collaboration with social agencies. Considerable efforts are made to reduce the formal character of court procedures. Hearings are not public and procedures are confidential to protect the juvenile’s privacy. Because of the emphasis on treatment, rehabilitation and protection, the need for legal procedural rights, such as they existed for adults, was not felt. The ideal was that of a juvenile judge who –as a medical doctor or a psychologist- would make a diagnosis of the problems and needs of the child, and then take the measures or impose the treatment adapted to those needs. The separate juvenile justice system was undoubtedly based on humanitarian concerns. It does symbolize increased consideration for the well-being of children as well as more respect for their individual personality. It had its heyday in the 20th century and its philosophy remained practically unchanged until the 1970’s. This is true for most of the western countries, but I would argue that in practice some differences emerged already between the US and particularly continental Europe. First, within 10 years of the Juvenile Court Act, the United States new legislation was enacted defining incorrigibility, growing up in idleness, gambling, loitering, begging and running away as so-called ‘status-offences’2, thus justifying the intervention of the juvenile court. As a consequence many children were placed in large institutions for indeterminate periods during the first half of the 20th century. Of course such behaviours occurred also in Europe, but they were usually not defined as offences, although they could lead to directing the child into the protection system. Second, most justice systems in continental countries did not include indeterminate sentences3. However, in Europe as in the US, the child remained a powerless object in the hands of a paternalistic and patronizing judge. III CHANGES IN JUVENILE JUSTICE PHILOSOPHY This system –also called the welfare system- persisted until about the 1970’s. However, as a consequence of important social changes in western society since the end of World War II, such as the increase in prosperity, higher levels of education, technological change, and emancipation movements implicating women and youth, but also homosexuals, (mental) patients or prison inmates, the system had become obsolete. People did no longer accept the absolute authority of a paternalistic judge over the lives of children, nor did the adolescents themselves. The first country to change was the US, through the landmark US Supreme Court’s ruling in Re Gault (1967) granting juveniles due process rights, such as notice of the charges, right to counsel, right to confrontation and cross-examination, and the privilege against self-incrimination. At the same time the ruling meant the disintegration of the Status offences are acts that are defined as punishable behaviour because of the child’s status as a minor. Indeterminate (civil) sentences did exist for mentally disturbed offenders. Such sentences had to be regularly reviewed by the director of the medical penitentiary. 2 3 6 essentially protective system, based on the principle of the delinquent being mainly a victim of circumstances and his environment. Since more rights usually entail more obligations and accountability, the juvenile justice system, by granting more rights to young people, also reaffirmed young people’s responsibility for their own actions and rediscovered free will. Disappointment with treatment results in general and with institutional treatment in particular (Martinson, 1974) affected the confidence in therapeutic interventions and prepared the minds for a renewed emphasis on retribution and punishment. Although the Supreme Court in the Gault case did not challenge the existence of the juvenile court, it seems to me that this ruling was the starting point for a gradual blurring of the distinctions between the criminal court and the juvenile court. These neo-classical retributive principles are best expressed by von Hirsch (1976) in ‘Doing Justice: The Choice of Punishments’, the report of a Commission set up to reform the American system of indeterminate sentences. The commission designed a system based on three related principles. First, the principle of ‘just desert’, meaning that the convicted person should receive the punishment he deserves for the crime he has committed. Second the principle of proportionality, which says that the punishment should be directly proportional to the seriousness of the crime. Third, the principle of equality, which states that like cases should be treated alike. Although the aim of Von Hirsch and his colleagues was to achieve a fairer and more just sentencing policy, the principle of equality in particular did mean that judges could no longer take into consideration the personal (mitigating or aggravating) circumstances for the offender, and this did affect their discretionary power. Summarizing the main characteristics of the juvenile justice system as it is now established in North-America and many European countries, the following elements seem to be of central importance. The offender is again viewed as a rational being with a free will. Consequently he is considered as fully and individually responsible for his actions; The focus is placed on the committed offence rather than on the offender; This implies increasing notions of culpability and guilt as well as more severe penal intervention, at the expense of protection and treatment; The victim has gradually become the central figure in legal procedures, one of the consequences being a renewed emphasis on restitution and reparation of harm done; By awarding due process rights to juveniles, judicial procedures have again become considerably more formal than they used to be; Differences between the criminal justice system and the juvenile justice system have been reduced. Since both systems are increasingly alike, this trend did increase the number of transfers to adult court in a number of countries. IV DO WE NEED A SEPARATE JUVENILE JUSTICE SYSTEM? In view of these fundamental changes in Juvenile justice orientations some criminologists have stated that there is no need for a separate juvenile justice system. They plead for one criminal justice system which processes all delinquents, be they young people or adults (Feld, 1998a, 1998b; Bol 1991). Feld argues that young people are often treated worse in the juvenile justice system than in the adult system, while Bol wants to abolish age limits because she claims that from a development point of view it is impossible to determine at what age children might be considered accountable for their acts. This opposition to the juvenile court raises the question whether there are valid arguments for pleading for a juvenile justice system that is separate from the adult criminal justice system. As it is there are a number of National and International bodies which strongly emphasize the need for differential treatment of children as compared to adults. For example, the Council of 7 Europe’s recommendation of 1987 says in its Preamble: ‘...Young people are developing beings and in consequence all measures taken in their respect should have an educational character’. The National Council of Juvenile and Family Court Judges in the US (1998) made a very similar argument, saying that ‘Children are developmentally different from adults; they are developing emotionally and cognitively; they are impressionable; and they have different levels of understanding than adults’. These statements have of course important implications for the treatment of juvenile offenders, indicating the need for a special system taking into account the differences between children and adults, in particular their age and immaturity (Howell, 2003, 148). On a more abstract level they suggests three principles that are central to juvenile justice: diminished responsibility, proportionality and room to reform (Zimring, 1998, 75-83) Diminished responsibility refers to the question whether children are less culpable then adults for having offended. Children may lack sufficient cognitive abilities to realise what they are exactly doing and in particular what might be the consequences of their acts. Of course the older the juvenile the more he will be responsible for his acts, but even at age 14 and 16 he might be incapable of grasping the full meaning of his actions (Scott, 2000). Proportionality refers to the mitigation of punishment because of children’s lack of development of social and cognitive capacities. Zimring argues that punishments meted out to juveniles should be graduated in the sense that the older the child the more severe the punishment. Room to reform indicates the importance of the kind of punishments that is meted out, considering what we want to achieve with punishment and what we would want to avoid. It means that we should strive for penal interventions that promote rehabilitation and the growth of young people into responsible citizens. The crucial importance of the latter principle is illustrated by a comparison of young people treated within the Juvenile justice system and those that are transferred to the adult system (Bishop et al. 1996), showing that in terms of recidivism juveniles retained in the juvenile justice system did considerably better than juveniles who were transferred to adult court. Nearly one third of the transferred group was rearrested compared with 19% of the matched non-transferred group. Finally, in terms of the purpose of the juvenile justice system the Council of Europe (Rec.(2000) 20) summarises its principal aims as follows: To prevent offending and re-offending; To (re)socialise and (re)integrate offenders; To address the needs and interests of victims; It should be observed that these aims do not mention deterrence, retribution or punishment. On the contrary, because of the fact that the juvenile justice system recognises the immaturity and the special needs of young people it is concerned in the first place with prevention, resocialisation and making juveniles aware of the feelings of victims. In this perspective the juvenile court is guided by the ‘best interest of the child’. It is precisely this orientation which makes the juvenile justice system fundamentally different from the adult criminal justice system, which thinking is dominated by the principles of deterrence and retribution. Since our purpose should be to foster the growth of children and young people into responsible citizens, we must cherish this different system and not abandon it. V. RECENT TRENDS IN JUVENILE JUSTICE However, what we have seen during the 1980’s and the 1990’s in a number of western countries is the development of a system with a stronger emphasis on punishment and a secondary role for rehabilitation. This happened first in the United States. 8 Far-reaching revisions of juvenile penal law took place in more than 90% of all states between 1992 and 1995 (Snyder and Sickmund, 1999). These referred to making it easier to transfer juveniles to the adult criminal justice system and to impose adult sentencing, implicating imprisonment. Accountability is increasingly translated by long term imprisonment. Between 1992 and 1997 all states–but three- , have changed their juvenile law, enlarging the possibility to apply adult criminal law, offering judges more (adult) sanctioning options and allowing investigation, prosecution and trial in juvenile cases to be a public affair. Automatic transfer was required by law for some specific offences and in twenty states such transfer was possible for any offence. In nineteen of 47 states the minimum age for transfer is age 14, in six it is 13. Confidentiality of legal procedures as well as the juvenile’s privacy are no longer guaranteed because of the objective to make the public witness the criminal behaviour of minors. Some states have introduced mandatory sentences for juveniles, which include long terms of imprisonment. In most of the states the main objectives of the juvenile justice system are expressed in the following way: o To make juveniles accountable for their acts; o To introduce effective deterrence; o To protect the public against criminal behaviour; o To balance attention paid to the offender, the victim and the community o To impose punishment that is proportional to the seriousness of the offence Although some (or all) of these objectives may be shared by many countries, the absence of any suggestion that young people should be rehabilitated and reintegrated in the community is striking. If one compares Canada to the United States there are a number of interesting differences, both in the underlying philosophy and in practice. Canada has been confronted with two big problems: one is that the juvenile court was overburdened with non-serious cases, and the second was the much too frequent imposition of youth detention, mainly related to the absence of sufficient alternatives (Doob and Sprott, 1999). It should be recognized that there is considerable variation in the practical application of the law among Canadian Provinces, which have great autonomy in the execution of the federal law. For example, the Province of Québec has a more pronounced ‘welfare’ practice than Ontario, as expressed in the number of juveniles in pre-trial detention and in custody. In 1998 the federal government decided to replace the Young Offenders Act of 1982 by the new Youth Criminal Justice Act which came into action in 1999. The law specifies that a youth is accountable for his actions and places more emphasis on the offence than on the offender (Trépanier, 1999). However, despite pressures to lower the age of criminal responsibility, which was age 12, this was not followed by the legislators, so that children younger that age 12 continue to be dealt with by social agencies and youth protection services. Moreover, Canada has never introduced sentencing guidelines, neither in criminal law nor in juvenile penal law (Roberts, 1999). Also transfer to adult criminal justice requires elaborate procedures and is restricted to a small group of serious violent and sex-offenders, since practically all juvenile offenders can be sentenced within the framework of the new law. Therefore it is expected that not many more young people than was the case before (annually about 100) will be sentenced in the criminal court (Doob and Sprott, 1999). Furthermore, the new law has created considerably more possibilities to deal with cases informally and divert them from court, keeping young people in the community. In this respect the Federal government has made available funds to provincial authorities to develop initiatives in the field of juvenile justice, encouraging the development of alternatives for custody. The law states the following objectives for juvenile justice in Canada: To prevent crime by attacking the circumstances that lie at the basis of delinquent behaviour; 9 To insure that young offenders experience significant consequences of their delinquent act; To rehabilitate young offenders and to reintegrate them in the community; The difference with the United States is of course the fact that the Youth Criminal Justice Act does not only state that a young person should be punished, but explicitly states as one of its objectives to strive for rehabilitation (Bala and Roberts, 2004). Revision of Juvenile justice legislation has also taken place in Europe. England has changed the law in 1998 (Graham & Moore, 2004). The Crime and Disorder Act has abolished the socalled Doli Incapax principle, according to which a child under age 14 ‘is not capable of doing evil things’ and states that children are accountable for their acts from the age of ten. The law has created new preventive interventions for young children, such as the Child Safety Order, Child Curfews, and the Parenting Order. The latter orders parents to attend a Parent Training course and if parents do not attend they may be fined. The Police cautioning practice in the case of non-serious offences was considered too ‘soft’ and was replaced by Final Warnings. By this measure the discretionary power of the police was seriously curtailed, and it considerably increased the number of prosecutions (Rutherford, 1999). The discretionary power of the juvenile court was also reduced, since in a number of cases the court could no longer use the option of the conditional dismissal. In addition, children aged 10 to 16 could be placed in preventive detention and a new Detention and Training Order may be imposed on all delinquents aged 15-17, as well as on ‘persistent delinquents’ aged 10 and 11. All this makes the sentencing framework for young people similar to that for adults. Much was expected from the multidisciplinary Youth Offending Teams which produce pre-sentence reports and intervene at every stage of the process. Another innovation was that young first offenders are referred to Youth Panels, which make a contract with the youth and his parents specifying a number of behavioural requirements. The English approach is more repressive than that of most other European countries, but it seems to be more pragmatic than that of the United States. For example the English government has invested considerable funds in preventive policies and it made great efforts to develop a consistent and gradual approach to youth crime. This is illustrated among others by a report of the Audit commission of 2004, noting the following positive points: 4 Young offenders are dealt with more quickly and juveniles receive more often an intervention; One third of offenders has to pay damages or has to work for the victim (a Reparation Order) Reconviction rates after a Reprimand or Final Warning are 7-10% lower than predicted Intensive Supervision and Surveillance Programmes (ISSP’s) have proven to be a considerably more constructive and cheaper option for persistent delinquents than a stay in an institution: 6 months ISSP costs £ 8.500, while 6 months detention costs £ 25.400; Magistrates4 are very satisfied with the services they receive from the Young Offender Teams, which make pre-sentence reports, appear at the trial where they give information to the judge, execute ISSP’s and impose Alternative sanctions; England has lay judges (Magistrates) which have only a basic knowledge of the law, but they are assisted by trained jurists 10 The Audit Commission also noted a number of negative findings, the most important of which are the following: Although youth crime has stabilized, the public knows very little about the recent reforms and public confidence in the Juvenile Justice system is low; There are still too many petty offences brought to Court; Contact time of social workers in the system continues to be only one hour per week; Minority juvenile delinquents (especially blacks) are more often placed in pretrial detention and get more often a custodial sentence than white young people. A country which frequently looks at England and Wales for change of its own juvenile justice system is The Netherlands. Policies have become more repressive and although alternative sanctions are a preferred option for most juvenile judges, the capacity of judicial youth institutions has grown exponentially and new establishments are built. Just as in England more young people are sent to a closed institution, while increasing attention is placed on ´delinquent´ acts of children under the age of criminal responsibility (12 years). Since these children are not criminally responsible they cannot be punished, but in this case the public prosecutor proposes to the parents to deliver an (educative) intervention. Although parents may refuse, most accept an intervention which has a definite ‘juvenile justice flavour’ (van der Laan, 2004). The latest intervention introduced by law in England and as an experiment in The Netherlands is the ASBO (Anti Social Behaviour Order). Behaviours that are no criminal acts, such as nuisance behaviour, harassing or intimidation, excessive noise, rowdy behaviour, graffiti, drunken behaviour and fouling the streets with litter may be punished by prohibiting the young people entering defined areas, associating with certain people or going near a house where they caused trouble. ASBOs are civil orders made in court and they are in effect for a period of 2 years. However, breach of the order is a criminal offence and may lead to placement in an institution. What this means is that acts that are no crimes may be punished as crimes if the young person breaches the civil order during the period of 2 years. Moreover, civil proceedings do not carry with them the same due process rights as penal proceedings. Northern Ireland and the Republic of Ireland, also belong to this cluster of Anglo-Saxon countries. However, they have introduced important innovations in their system. For example, Ireland has changed its Children’s Act (1908) into the Children Act (2001). It is true that the new law is slow to be implemented and that young people are still incarcerated in an institution run by the Irish Prison Service. Moreover, the British example of Parent Orders is followed. On the other hand the new law has introduced preventive and diversionary practices as well as family conferences. Northern Ireland has introduced a Youth Diversion Scheme in the form of restorative cautioning. Participation of victims is found to have advantages over traditional cautioning. The most interesting part of the new law is the introduction of restorative justice, implicating statutory youth conferences for all juvenile offenders up to age 18. The law distinguishes diversionary youth conferences and mandatory Court ordered youth conferences. The logical consequence of the latter procedure is that conferences may impose a custodial sentence. The requirement that a solicitor has only advisory capacity because he/she is supposed to fully participate in the process seems to me rather problematic. So far the impact of legal change and practice in what may be termed the Anglo-Saxon countries has been real but it is limited. Indeed there are clear differences between these 11 countries and other European states, in particular Southern Europe and East and Central Europe. As will be shown the protection tradition there is much stronger. For example, France and Belgium, because of their struggle with growing repressive tendencies, are still having a thoroughly ‘welfare’ law. It is true that several specific retributive initiatives have been taken to deal with delinquent young people in both countries. The French system is essentially dominated by the Ordonnance of February 2, 1945, including the principles of a special jurisdiction for juveniles, diminished responsibility of minors and priority of educational measures (Wyvekens, 2004). These principles are still upheld although they are under increasing attack. For a very long time the juvenile judge, who is competent in penal and civil cases, was the most powerful player in the game, the prosecutor having little influence. This is now changing and a number of courts have prosecutors who are specialized in juvenile matters. An interesting French initiative is the neighbourhood prosecuting offices, who deal rapidly, mostly by a conditional discharge, with petty offences committed by adults and minors. This practice, legalized in 1993, is similar to several diversion procedures in other countries, since it includes reparation to the victim and/or community service. Taking into account the principle of protection in French legislation, the term ‘educative sanction’ appears only in 2002, when a new decree made it possible to sanction children aged 10-13, who are not yet criminally responsible. Juveniles aged 13-18 can be fined, receive a Community service order or may be placed in a closed educative centre. They may also be placed under supervision, eventually including a term in care for 6 or 12 months. Those aged 16-18 may be subjected to electronic monitoring, or be imprisoned. Belgium had adopted a protection law in 1965, establishing criminal responsibility at age 18 (Van Dijk, 2004). As a consequence the youth court cannot impose any sanctions, but only educational measures. There have been several initiatives at the level of the prosecutor to develop community based sanctions, which tend to express some dissatisfaction with the law of 1965 and promote some more punitive goals. Belgium is one of the few European countries to have developed the practice of Restorative Justice, although unfortunately this is somewhat fragmented because of a lack of legislation. Like other countries they apply Victim-Offender mediation and Community service. Transfer of 16-18 year olds to the adult court is possible. However, it should be observed that, contrary to its northern neighbour, The Netherlands, Belgium has very few institutions and there is only one federal correctional facility for boys aged 14-18. In Flanders the total capacity is 246, while the French speaking part of the country has 5 rather small youth institutions. A clear example of the Welfare tradition is apparent in the German legislation (Dünkel, 2004). In 1923 Germany created already the option of educational measures instead of punishment and increased the age of criminal responsibility from age 12 to age 14. The legislative reform of the Juvenile Justice Act (JJA) in1990 emphasized the importance of diversion both at the level of the prosecutor and the juvenile judge, distinguishing four levels, such as simple diversion and diversion combined with interventions of increasing seriousness, such as educational measures or alternative sanctions. All formal sanctions are structured according to the principle of minimum intervention, with juvenile imprisonment as a last resort. Imprisonment includes a ‘short sharp shock’ detention of a maximum of 4 weeks (Jugendarrest) and youth imprisonment for 14-17 year olds of 6 months to 5 years. Interestingly, young adults aged 18-20 may be sentenced according to the JJA, which in fact occurs frequently. For example, since 1953 all young adults (aged 18-21) are placed under the jurisdiction of the juvenile court, a procedure that has been followed by Spain in 20005, as well as by Austria and Lithuania in 2001. This is all the more remarkable since it goes counter the tendency in many other countries to facilitate transfer to the adult criminal court of young people aged 16-18. In fact 62% of young adults in West Germany were sentenced under the 5 However, this has later been suspended till 2007 12 JJA in 2001, while sentencing under the adult Criminal law occurred mainly for traffic offences. Although in essence a welfare system Germany has introduced due process rights for juveniles, similar to other countries. Also similar to other European countries is the fact that juvenile delinquency has remained stable since 1990, while violence rates in East and West Germany have grown closer because of a rise in West- and a decrease in East Germany. Diversion procedures in Germany include 69% of all disposals. Short term detention has been reduced from 11% to 5% in West Germany, unconditional youth imprisonment to 2%. Moreover, about 70% of youth prison sentences are suspended, making prison to a real ‘last resort’. Since 1990, however, youth prison rates have increased, not because of more severe sentences but because of the increase of juveniles sentenced for assault and street robbery (89% of the prison population is aged 18-25, while 11% is aged 14-18). Sentencing practices are not more severe in East- than in West Germany, except for violent offences where sanctions include more often short term detention. In terms of community sanctions Germany applies community service, social training courses, mediation and different combinations with reparation, restitution and the like. In conclusion, Germany’s legislation represents a clearly different view of young people and of childhood than that of the more Anglo-Saxon countries such as England and Wales and Canada, but also of The Netherlands. As noted by the authors (Spinellis and Tsitsoura, 2004) the German legislation, as well as procedures in Switzerland and Italy, have influenced the Greek law of 2003 –substituting the earlier law of 1950-, introducing diversion and mediation and increasing non-custodial measures. Greece has only two penal youth institutions where about 300 minors were housed in 2004. Moreover, young adults up to age 21 are included in a Bill, introducing special ‘Care Units for young people with particular problems, such as drug addicts and delinquents with psychological or mental problems (as well as for children in need of protection). However, a most interesting innovation is the creation of an ‘Ombudsman for Children’ who- among other duties- has to defend and promote children’s rights. The Spanish law of 2000 illustrates how in Continental Europe legislators are also grappling with the problem of how to deal with increasing pressures for harsher measures in Juvenile justice. Of course Spain is still suffering from ETA and other terrorist activities which might explain some of the modification of the 2000 law, which is a clear welfare law with a great emphasis on the ‘best interest of the child’. Similar to Canada the implementation of the law is given to the provinces which have great autonomy in a ‘quasi federal state’ (Rechea Alberola and Molina, 2004) The law itself gives large competences for dealing with delinquents to the public prosecutor, while every province has a special Juvenile section, including at least one specialised youth prosecutor. However, despite the introduction of restorative justice principles, implementation is variable over provinces which may be related to a lack of resources. Some provinces are collaborating with the Social services department and services provided by NGO’s in order to be able to implement restorative justice principles. Later modifications of the law were dominated by general deterrence principles rather than the ‘best interest’ of the child, such as longer custody terms in the case of serious offences. However, statistics on interventions in 2000-20003 show that the effect of these modifications is not so great: although custody did increase, community measures also increased. One other example of a typical ‘Welfare approach’ is the Swiss Juvenile justice Bill of 2003, which will have force of law in 2006 (Zermatten, 2004). Until that date juvenile law was part of the Criminal law, but the new law changes this. The current law is explicitly based on protection principles. The minimum age of criminal responsibility is raised from 7 to 10 (despite pressures to raise it to age 12 and criminal majority is fixed at age 18. The juvenile judge is competent both in civil and in penal matters. On the other hand due process rights for juveniles are recognized 13 and have been adopted in procedural law, as is the case in most European countries. Custody, which had a maximum term of 1 year, has been enlarged to 1 to 4 years for young people aged 16 or over. However, the maximum of 4 years is reserved for serious violent offenders who committed acts such as serious assault and robbery. It is a remarkable fact that the country had until now only open institutions and that it has only recently made a start with constructing several closed institutions. Although Switzerland supports alternative sanctions, so far they have only introduced community service and mediation programs. A professional probation system is still lacking because of a shortage of qualified social workers. The case of Switzerland is interesting in that the country has tried to conciliate the protection system with the due process model as well as with the social changes that have happened all over Europe including Switzerland. Elements that may have played a role in this moderate approach are the relatively small population size (7,5 million inhabitants), the strong informal social control still exercised in the many small cities and villages, and the fact that immigration from troubled regions such as ex-Yugoslavia and Albania is from a rather recent date. In considering the Eastern European countries one may speculate that Germany’s welfare legislation has had some impact on recent juvenile justice legislative change. For example, In reviewing juvenile justice legislation in the Czech Republic and in Bosnia, one may note this impact along with that of international Conventions, rules and regulations. Indeed, in 1993 the Czech law made conditional dismissals possible at the level of the prosecution, and this became one of the most frequent alternative disposals (Valkova, 2004). More importantly, the new law which was adopted in 2003, established the age of criminal responsibility at age 15 and criminal majority at age 18. The law explicitly emphasizes diversion of criminal proceedings, educational and protective measures, and alternatives to imprisonment, custody being considered as a real last resort. In Bosnia the criminal law reform of 1992-2003 introduced due process rights, specified the role of the prosecutor as it is known in other European countries, established criminal responsibility at age 14 and introduced educational measures (Maljevic, 2004). Looking at Poland, the biggest country among the new EU member states, the author states that there has been opposition to the welfare type juvenile justice legislation, which dates from 1982 (Stando-Kawecka, 2004). However, she concludes that the welfare oriented principles of the Act have to a large extent remained unchanged. Poland has family courts with the juvenile judge the most powerful figure in the system. There is a strict separation between juvenile offenders and children in need of care and they cannot be placed in the same institution. Transfer to a criminal court as well as adult sentencing is possible in the case of very serious offences. Both police and prosecutors have limited competences, since the family judge is competent at all stages of the proceedings and even conducts the preliminary inquiry when a juvenile is referred to the court. The 1982 Act provides for a great number of interventions ranging from a reprimand, supervision, placement in a foster family to a youth educational centre and including some restorative measures (although these are still rarely applied). The 1982 law was amended in 1995 as an answer to all those who found the prevailing juvenile law ‘too soft’. However, both the amendment and the Penal code of 1997 introduced only limited changes, the most important of which are the lowering of the age limit of criminal responsibility in very serious cases from age 16 to 15 and enlarging the possibility of transferring juveniles to the criminal court (although reducing the penalties for juveniles). Despite these legal changes, practice did not change very much: placement in an institution continues to be rare, educative measures being the main dispositions of the family court, with the reprimand and supervision by a probation officer and by parents being the most frequent ones. Restorative justice practices, such as mediation, repairing damages done, apologising to the victim and the like being seldom imposed. 14 And then there are the Nordic countries, including the Scandinavian states as well as Scotland. They deserve a prominent place in this report because of their perseverance in maintaining a particular welfare system even when more punitive measures are imposed. Scotland is a case in point, since it is upholding a welfare model that was created in the 1960’s on the basis of the well known Kilbrandon report6. The Scottish Hearing system was established in law in 1968 and is still going strong although important changes have modified juvenile justice in the last decade. It is based on a focus on the offender instead of the offence and does not separate children in need of protection and delinquent children. Children’s panels, composed by lay people recruited from the local community were introduced. A hearing includes the child, his/her parents, a social worker and the Reporter, but there is no legal defence since that was considered unnecessary. When a case is reported to the Reporter, the latter may ask for a social background report to the social work department and then decides on how to proceed. If a panel meeting was convened the welfare of the child must be the essential consideration, implying a reduction of risk of re-offending and an increase social inclusion. Measures may include a warning, voluntary supervision from the local authorities, compulsory supervision and placement in an educative establishment. However, in the 1990’s a more punitive approach was gaining ground and the juvenile justice system was reviewed, focussing heavily on both individual and parental responsibility. The hearing system was more or less reduced to treating the ages 8 to 16, while a pilot was set up for a Youth court, judging 16 -17 years old persistent offenders. In addition, Scotland has also introduced (the British) Anti Social Behaviour Orders in order to ban ‘unruly’ behaviour. In practice, however, the hearing system is still very much alive. All offenders aged 16 and 17 are referred by the police to the Procurator fiscal (the prosecutor) who decides whether the case should go to the Hearings system or to the Youth court, but most of the sanctions imposed by the court are community based and only 7% results in custody. In addition, there has been a greater emphasis on evidence based interventions. Scotland will not abolish the Hearings system which made the country famous, and the authors conclude that ’the work with troubled children and young people is more focused and constructive than before’ (Burman et al. 2004). With respect to the Scandinavian countries there is an interesting mix of the philosophy of ‘just desert’ and the humane tradition for which they have always been known. Because of 7 their intensive collaboration, Denmark, Sweden, Norway and Finland have comparable legal systems (Kyvsgaard, 2004). For example, there is no separate juvenile justice system and in all of them the age of criminal responsibility is 15. Children under age 15 are dealt with by socalled Welfare boards (social agencies), while young people over age 15 are dealt with by a criminal court just as adults. However, various sanctions and measures specially addressed to offenders aged 15-17, result in a more lenient regime for this age group. When children under age 15 are suspected of an offence, the police may detain them but they have to inform immediately the Welfare board. It is up to the latter to decide what has to be done after an assessment of what kind of assistance is needed. It is the child’s needs that dictate that decision and not the seriousness of the offence, which is a pure Welfare principle. Social interventions include practical assistance for the family, family therapy and also –with the agreement of the parents- out-of-home placement in a foster family or a home. Children and juveniles may be placed in secure accommodation, but this is mainly for observation. However, under age 15 this is very rare and such placement can not exceed a period of two months (Sarnecki and Estrada, 2004). Young people aged 15 to 18 usually do not go to court, 6 Recommendations made by a Committee chaired by Lord Kilbrandon 15 the dispositions being a fine or dropping the charges, sometimes with specific conditions, such as a fine or substance abuse therapy. Various sanctions are available if they end up in court, such as a ‘youth contract’ (since 1998), specifying a number of obligations of the youth and his parents, probation and the most frequently used punishment, the day-fine. Alternative sanctions, such as Community service or mediation are rare. Imprisonment is seldom used for young offenders and judges must consider alternative ways of serving the sentence: the youth may be sent to a hospital, in family care or to a specialized care institution or clinic. In 2001 Denmark introduced a new youth sanction, covering three phases in two years: first the youth is placed in secure accommodation, followed by placement in an open institution. This may take 1 ½ year. The last phase is spent in liberty which is restricted by supervision and after care. During these two years the offender has to follow intensive social, educational and employment training programs. Sweden has strongly been influenced by the ‘just desert’ philosophy (Von Hirsch, 1976). However, although there were pressures to remove the responsibility for supervision from the social Welfare board and to place it on the court this was not followed by the government (Janson, 2004). In stead, in 1997 the government introduced a new sanction, ‘youth custody’ for offenders aged 15-17, which made secure placement in the case of serious offences possible for a term between 2 weeks and 4 years. However, the young offender should be transferred to an open institution as soon as possible. All in all the Swedish system is not very different from the other Scandinavian ones: it separates children under age 15, who are dealt with by social agencies, from those aged 15 to 18; young suspects (up to age 18) may only be arrested under very special circumstances and imprisonment is rarely used. VI. WHY DID THE JUVENILE JUSTICE SYSTEM CHANGE: SOME HYPOTHESES Why has the juvenile justice system, in particular in the western European countries, undergone such drastic changes away from the welfare model? One reason might be the belief of many people that the increasingly harsher system is a consequence of the rise in crime. As far as juvenile crime is concerned, there was a substantial rise between 1950 and 1980 in most Western countries, but the bulk of it was non-serious property and petty crime. Furthermore, there is no evidence that shows a similar rise in the 1980s and 1990s. On the whole juvenile crime appears to be pretty stable since the last decade. Although there has been in many states a rise in violent crime, the question whether the increase in violent crime is as high as portrayed in police statistics or whether it is partly an artefact produced by defining more acts than before as crimes, an increase in reporting violent acts by the public, more alert police reaction to these complaints and better police registration due to the use of computers, is an unresolved question. An additional hypothesis is that the general stability in juvenile crime is the consequence of more severe sanctioning policies. Deterrence and incapacitation are supposed to reduce crime. However, American research has long since shown that the manipulation of penalties has little or no effect on crime rates (President’s Commission on Law Enforcement and Administration of Justice 1967; Tonry 1995; Howell 1997). The two factors tend to move independently from each other, and increases or decreases in crime have little to do with criminal justice policies. A different explanation is that the new faith in harsh punishments is a consequence of increased mass media attention to serious, rare, and heavily dramatized crimes. This phenomenon is as frequent in Europe as it is in the United States. As Tonry notes, “We know that ordinary citizens base their opinions on what they know about crime from the mass media and as a result that they regard heinous crimes and bizarre sentences as the norm. They 16 believe sentences are much softer than they are, and they believe crime rates are rising when they are falling. As a result majorities nearly always report that judges’ sentences are too lenient” (2001, p. 57). This distorts people’s views on crime in general and it supports the assumption that the media contribute to create a climate of fear in which people believe that crime is fast increasing and that deterrence and retribution are needed to maintain sufficient social control. An additional problem is that politicians follow the media. They base their political actions on what they see as the public’s feelings about the issues figuring in the media. As a consequence they exercise pressure on prosecutors and judges to be firm and pronounce more severe sentences. The latter are not insensitive to the pressures of public opinion and tend also to support more repressive sentencing policies. These explanations add to our understanding of the actual situation in criminal and juvenile justice. However, as far as (western) Europe is concerned, some additional factors might be taken into consideration. My view is that the present trend of meting out more severe punishments to adults and juveniles may be related to fundamental changes in the technological, economic, and social make up of Western society. Three phenomena seem to have special importance. These are changes in the labour market due to technological innovations, the impact of globalization on the Welfare state, and mass immigration. First, an important factor is technological change causing the gradual disappearance of unskilled labour from the economy and the emergence of a strong service sector. The new jobs require considerable training, flexibility, and adaptability to changing circumstances, and high verbal, social, and communication skills. Increasing interdependence among people and institutions requires a controlled environment, reliable and predictable interactions, and a rejection of the use of violence. This is why modern society stresses strong control of emotions, a more deliberate and rational approach to problems, and a strong emphasis on internalized moral norms of behaviour. One result is high unemployment rates among those who cannot meet these requirements, among which many young people living in deprived neighbourhoods (Garland 2001, p.81). At the EU level 22% of to-days youths do not complete any form of secondary education: this is 30% in Ireland, Italy, Spain and the UK, but is only 15% in the Nordic countries. In addition, 20% of the males were still unemployed 5 years after having left school (OECD, 1999). Furthermore, to the extent that there is a discrepancy between the behavioural requirements of post-industrial society and individual skills to meet them, unemployed and marginalized young people may resort to deviant and delinquent behaviour. Second, western society has long been based on a market economy. However, after World War II and until the end of the 1970s, negative effects on people’s lives were cushioned by an elaborate welfare system that gave the state an important interventionist role. When, as a consequence of several recessions, this balanced system was considerably overcharged, it was gradually dismantled in many countries, though not in all to the same degree. Although economic growth increased, it had also negative consequences. One consequence is growing social and economic inequality and an increase in poverty, in particular among families with children and lone mother families. Moreover, even when unemployment rates declined the number of families without an income through work increased (European Commission, 1999). Family unemployment has serious negative effects for children. A Danish study found that it doubles the risks of family break up and of later unemployment of the children. It is highly related to parental alcoholism, violence and incarceration (Christoffersen, 1996, cited by Esping-Andersen, 2002, p.54). American research has shown that childhood poverty is strongly related to less schooling, more drop-out, more criminal behaviour, more psychosocial disturbances and becoming poor parents themselves (Danziger & Waldvogel, 2000; Duncan, Brooks-Gunn et al., 1998). While these conditions contribute to the marginalisation 17 and social exclusion of deprived families with poor parenting skills, they create at the same time the need for tighter control on marginalised, unruly, undisciplined and delinquent young people. One answer to social destabilisation may be an increasing reliance on the Criminal and Juvenile justice system to restore a certain peace and order. This has led among others to justice initiatives, such as replacing the practice of dismissing juvenile cases by diversion programs, ASBOs, local justice offices where prosecutors and police do justice at the local neighbourhood level, intensive supervision programmes and, in particular, an increase in institutionalization. Social factors in producing crime are no longer seen as real, but emphasis is placed on the individual, who has no self-control or lacks social control and who deserves to be punished for his sinful acts (Garland, 2001, p.102). One of the consequences is that countries that have an Anglo-Saxon tradition, such as the United Kingdom and the Netherlands, have seen their detention rates skyrocketing. On the other hand the Scandinavian countries, which have maintained a strong welfare tradition, still have very low custody rates. Other countries have not as yet developed a full-fledged punitive justice and control model, such as Germany and some of the Eastern European states. Finally, mass immigration is a third important factor, both in North America and in Western Europe. The United States and Canada have long been immigration countries. In the nineteenth century, most immigrants came from Europe, but since 1950 about 18 million immigrants, most of them of non-European origin, came to the United States. At the same time, Europe received 15 million immigrants, many of whom were recruited as unskilled factory workers (Yinger 1994). In fact immigration has never stopped, and there is a continuous flow of Third World labourers and asylum seekers to the Western world. The consequences are many. First, it is clear that they will affect the composition of the population. In Holland’s big cities, the majority of children younger than fifteen belong to ethnic minorities. Similar trends are apparent in other big European cities, such as Paris and London. Second, changes in the labour market hit these groups particularly hard, with huge unemployment rates as a result. Third, a growing number of segregated and deteriorated city areas are emerging, housing an “underclass” population of mainly, though not exclusively, immigrants (Eisner 1997). These changes undermine society’s stability and social cohesion, producing widespread feelings of insecurity and fear, which are projected on essentially two groups: a loosely defined group of ethnic minorities, including refugees and foreign labourers, and those who are considered to threaten social peace and social cohesion to an even higher degree, marginalised, deviant and delinquent young people. . Gurr (1981) argued that the social institutions that did educate and socialize these nonintegrated persons into behavioural conformity, adequate social functioning, and respect for the prevailing value system in the 19th century, such as the education system , the big factories and military conscription, are in decline or have disappeared. The only norm-enforcing system that remains in full force and has the pretension to preserve social peace is the criminal and juvenile justice system. That system is increasingly intervening in people’s lives, not just by detaining people, but also by extending its operations and control in the community. To the extent that social unrest, feelings of insecurity, and fear of the future remain prevalent, people will continue to expect the criminal justice system to pacify society and re-establish social cohesion. They will also continue to put pressures on the judiciary to punish and to put away those who are seen as disturbing social peace. VII. INTERNATIONAL STANDARDS 18 There is an important limitation in Europe8 to what European states can do in terms of general penal legislation or the unrestrained introduction of repressive innovations in Juvenile Penal law. Their action is indeed limited by International recommendations, rules and conventions. The most important legislation to which European laws are tested is the European Convention on Human Rights and Fundamental Freedoms (ECHR), which has been adopted in 1950 by the Council of Europe and which all members of the Council must have signed. The Convention is enforced by the European Court in Strasbourg and it has considerable influence on the national legislation of the member states who adopted the Convention. Expert committees of the Council of Europe also prepare Recommendations for the member states. One of the first on Juvenile justice was Recommendation no. R(87) 20 on ‘Social Reactions to Juvenile Delinquency’, while in September 2003 the Recommendation Rec. (2003) 20 was adopted by the Council of Europe, recommending the reduction of institutionalization, greater use of evidence based interventions, greater involvement of parents and recognition of victims interests. A full-fledged Convention, which has increasing importance for Youth protection as well as for Youth justice is the UN Convention on the Rights of the Child (CRC) which was adopted in 1989 by the General Assembly and since then has been ratified by 191 countries. Unfortunately this Convention cannot be enforced by an International Tribunal. There only exists a UN Supervising Committee, which tests every 5 years the measures taken by individual states to implement the Convention. In addition, five-yearly UN congresses have adopted Standard Minimum Rules for the Administration of Juvenile Justice ( the Beijing rules) in 1985, and Rules for the Protection of Juveniles Deprived of their Liberty ( the Havana rules) in 1990. . Both instruments were prepared by European lawyers. The Beijing rules were originally designed and formulated by a committee chaired by Professor Schüler-Springorum from the University of Munich. The Beijing rules include formal criminal procedures around notions such as the well-being of juveniles, the minimum age for criminal responsibility, proportionality of the penalty to the act, and taking into account mitigating circumstances. The Havana rules are concerned with juveniles in detention, specifying the reintegration of the juvenile as an objective, and his right to adequate treatment and contacts with his family (Mijnarends 1999, 2001). Although it is expected that the impact of the UN Convention on the Rights of the Child will increase over the coming years, we feel that the unifying influence of the Court in Strasbourg on the legislative process of member states, through its jurisdictional powers in the field of human rights and jurisprudence, will probably be considerably greater. V. CONCLUSION Overviewing the 19 national reports with respect to their general orientation considerable differences can be noted. Indeed there seem to be essentially two juvenile justice clusters. The first cluster includes the English speaking countries, with the exception of Scotland but including The Netherlands. It is characterised by a retributive, sometimes repressive, approach, placing a strong emphasis on the juvenile’s accountability, ‘just desert’ principles and parental responsibility for their child’s behaviour. This does not mean that in these states juvenile justice systems are completely similar. On the contrary there are differences in emphasis on some aspects of the system between for example the United States and the Republic of Ireland or Northern-Ireland. It is clear that the United States represents these characteristics in its purest form. However, it is amazing to what degree England and also The 8 It should be observed that Canada does not share the views of the US in this respect: for example Canada did sign the Convention of the Rights of the Child; 19 Netherlands have taken over both the rhetoric and a number of measures from the US, such as growing institutionalisation of young people. The other countries which belong to this cluster, such as Canada and The Netherlands –while subscribing to the general just desert philosophy- have introduced, alongside institutional interventions, alternative sanctions, restorative justice (Northern Ireland) and preventive and diversionary measures (Ireland). On the other hand there is a second characteristic distinguishing these western countries from the others and that is their pragmatism and strong emphasis on ‘what works’ principles and evidence based interventions as well as on prevention. There is a great interest in better ways to prevent crime and a conviction that we can and should make considerably more efforts to reduce juvenile crime by preventive measures. For example, reading the research literature, there is overwhelming empirical evidence showing that interventions at an early age are considerably more effective than interventions in adolescence or adulthood (Tremblay and Craig, 1995; Rutter,Giller & Hagell, 1998). Or as others have put it ‘…remedial policies for adults are a poor (and costly) substitute for interventions in childhood’ (Heckman & Lochner, 2000; Esping-Andersen, 2002, p.49). Moreover, the Anglo-Saxon tradition implies a strong empirical research tradition which is unfortunately absent in many continental European countries. This means, among others, that the prevention of crime has become a specialist discipline in Criminology, based on developing, implementing and evaluating interventions, both preventive- as well as treatment programmes. As a consequence of these research efforts most of new and innovative interventions that are applied in juvenile justice and preventive programmes in Europe have originally been developed in the US and Canada. Since considerable resources are invested in developing, testing and demonstrating their effectiveness by sometimes long term effect evaluations, such programmes then find their way to other countries. The second cluster of countries mainly covering continental Europe is still very much ‘welfare’ oriented. This is perhaps best represented by the German approach of juveniles and young adults, but one sees a similar approach in many continental European states. Western European states, such as France and Belgium have also a strong welfare legal tradition, although there are pressures to change this and create a more retributive system. It is clear that some adaptations are made (France), but the essential protective system laid down in the Ordonnance of 1945 is still adhered to and has a strong foothold in the country. In an important study Whitman (2003) has shown that throughout history both France and Germany have developed an essentially humane approach of criminal offenders based on respect and rejecting practices of their degradation. It is interesting to note that we are finding the same essentially humane approach in these two countries with respect to juveniles. However, this approach is also characteristic for other continental countries, such as Switzerland, Spain, and Greece, as well as the Eastern European states. What is striking about the latter is that despite a huge rise in juvenile delinquency after 1998, when communism was dismantled, their juvenile justice systems have not taken the harsh juvenile justice orientation of the United States as an example. In reviewing their juvenile justice legislation adopting diversionary measures and alternative sanctions, some of these countries may have undergone western European influences, such as those coming from the Council of Europe, but the fact remains that their welfare approach is clear. A third cluster is formed by the Scandinavian countries and Scotland. The four Scandinavian countries have very similar juvenile justice systems. Because of their relationships with Anglo-Saxon states the ‘just desert’ philosophy gained in importance particularly in Sweden, although we also see some ‘just desert’ innovations in Denmark for example. This means in practice placing more emphasis on the offence than on the offender, as well as on the responsibility of the juvenile for his actions and the proportionality principle. However, despite these new accents in juvenile justice the countries have remained faithful to their 20 welfare boards, their restraint in punishment and institutionalisation and their emphasis on treatment interventions. They are also receptive to ‘what works’ principles and evidence based interventions and they are strongly relying on empirical research in guiding policy. A similar story may be told about the Scottish Hearing system although the British influence is strong as is clear from the introduction of parenting orders and ASBO’s. However, they are proud of their own Hearing system and the changes that that have been introduced will be limited and won’t destroy their essential welfare approach. 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