Te Kooti Taiohi o AotearoaThe Youth Court of New Zealand
Children in conflict with the law . . .
Asking the Hard Questions
International Association of Youth and Family Judges and Magistrates
XVII World CongressBelfast, Northern Ireland, 31 August 2006
Judge Andrew Becroft
Principal Youth Court Judge
Te Kaiwhakawa Matua o Te Kooti Taiohi
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Secondary school student physics exam question:
Discover the height of this building using a small barometer?
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Eight key questions to consider when children come into conflict with the law
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But first some “non-questions”...
“Givens” or “assumptions”
• Specialist legislation for child offenders
• A separate criminal Children’s/Youth Court (or a Criminal Division of a multi-jurisdictional Children’s Court)
• Specialist “protections” for children/young people eg: restrictions on police arrest, name suppression etc
• Specialists should deal with children in conflict with the law at every stage of the process, eg specialist police, social workers, child advocates/lawyers
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1. At what age should children be held criminally liable for their actions ?
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2. To what extent should child offending be considered as raising care and protection
issues?
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3. Do all children who break the law need to be charged and brought to Court?
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4. Should the state’s power to resolve child offending be (partially) transferred to
families, victims & communities?
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5. Should children actively participate in formal criminal processes?
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6. Should a child ever be transferred to the adult criminal court for trial/sentence?
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7. Are our responses to young offenders “evidence based” and consistent with best
international practice?
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8. What use should be made of prison and
detention centres for young offenders?
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Outline
• Starting point: the need for a principled approach
• Eight issues
• Conclusion
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Who Am I?
I speak to you this morning in four capacities :-
• A former young person (like most of you!)
• A former lawyer
• A Judge
• A father
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…as a father
Dear Dad
Whenever I have a problem I always follow your
advice…..
And ask Mum
Happy Father’s Day
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1. A principled approach to child justice
• How children who break the law are dealt with is a test of a nation’s maturity
• Children/young people are not “junior” adults; they are adolescents & developmentally different in all respects
• Part of teenage years to test boundaries, take risks and challenge authority
• Beware of a so-called “golden age” of the past (illusory), when teenagers were not a challenge
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1. A principled approach to child justice (cont)
• “There are a number of children running about the streets
of Dunedin … without the control of 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 from The Otago Daily Times 1884 and 1886 (from Dr Gabrielle Maxwell)
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A principled approach to child/youth justice
• Child/youth justice is often a political football
• Subject to pendulum swings and populist pressures
• In western countries Youth Justice increasingly perceived
as “soft” and “ineffective”; not sufficiently “punitive
• There must be a principled approach
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A Principled approach to Youth Justice
• UNCROC is the most universally accepted human rights
document in history
• Provides fundamental guiding principles as to “trial”/
“treatment” “deeds”/“needs” of young offenders: Article
40 (clauses 3 & 4) is crucial
• Any discussion of child & youth justice must start here
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2. Eight key questions to consider when children come into conflict with the law
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1. At what age should children be held criminally liable for their actions ?
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1. At what age should children be held criminally liable for their actions ?
• Wide disparity between various countries as to the age of criminal responsibility
• Eg…Portugal = 16; England = 10
• UNCROC does not prescribe a specific minimum age
• UN Committee on Rights of the Child has criticised jurisdictions in which the minimum age is 12 years or below
• Complex questions of maturation and development; cultural norms may be involved
• A legitimate area of public debate
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1. At what age should children be held criminally liable for their actions ?
• “Doli incapax”, a rebuttable presumption that children are criminally incapable, is a useful protection
• In New Zealand, the age of criminal liability is 10
• However, the only criminal offences for which a child aged between 10 and 13 can be charged with are murder and manslaughter
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2. To what extent should young offending be considered as raising care and
protection issues?
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2. To what extent should youth offending be considered as raising care and
protection issues?
Perhaps the great issue of child/youth criminal law??
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2. To what extent should youth offending be considered as raising care and protection issues? (cont)
Two conflicting issues arise
1. When, and on what basis, is offending by
children/young people to be viewed primarily as a
care and protection issue, and when is it to be
considered a criminal issue?
In other words, how do we avoid “criminalising”
behaviour that has at its centre, welfare/child
protection issues?
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Associated Issues:
• How are care/ protection issues to be identified and assessed?
• How is it established these issues are causative of offending?
• This bears on the issue of the age of criminal responsibility
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2. Where young offenders are dealt with in the criminal
court, how should their care and protection needs be
dealt with?
– “Welfarising” the response?
– Risk of prolonging proceedings?
– Proportionality of response comprised?
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In New Zealand...
If at any stage in the proceedings, it appears to the
Youth Court that a young person may be in need of
“care and protection”……
the Youth Court may refer matters to a Care and
Protection Co-ordinator, adjourn proceedings, and
eventually discharge them absolutely.
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3. Do all children who break the law need to be charged and brought to Court?
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3. Do all young people who break the law need to be charged and brought to Court?
• No
• Up to 80% of child offenders will offend only as teenagers and will age out of offending with prompt, firm, community-based intervention
• Laying charges, for that group, is counter-productive
• Diversion/ “alternative action” rates should be at least 80%?!
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Section 208(a): “Unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter”
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• In New Zealand 76% - 84% of youth offending dealt with by police supervised “diversion”:-
– Formal warning & discussion with young offenders and their families
– “alternative action”: prompt, firm, community based accountability
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Figure 1: Diversion Rates per 10,000 distinct cases in Youth Court aged 10–16
years; 1987 to 2001
Cases
0
100
200
300
400
500
600
700
JULY
87-
JUN
E 8
8
JULY
88-
JUN
E 8
9
JULY
89-
JUN
E 9
0
JULY
90-
JUN
E 9
1
JULY
91-
JUN
E 9
2
JULY
92-
JUN
E 9
3
JULY
93-
JUN
E 9
4
JULY
94-
JUN
E 9
5
JULY
95-
JUN
E 9
6
JULY
96-
JUN
E 9
7
JULY
97-
JUN
E 9
8
JULY
98-
JUN
E 9
9
JULY
99-
JUN
E 0
0
JULY
00-
JUN
E 0
1
Rat
e
Cases
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4. Should the state’s power to deal with offending be (partially) transferred to families, victims and the community?
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4. Should the state’s power to resolve child offending be (partially) transferred to
families, victims & communities?
• Family Group Conferences are used for all cases in the Youth Court which are “not denied” or proved
• FGC’s attended by offender and his/her family; victim and supporters, community supporters and “professionals”
• A plan is developed for approval and monitoring (for months or longer) by the Youth Court. If completed usually there will be an absolute discharge
• If no agreement, or agreement that formal Youth Court Orders are required, Youth Court will make formal orders
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4. Should the state’s power to resolve child offending be (partially) transferred to families, victims &
communities?
Three key elements of the FGC process are:
1. The partial transfer of power from the State, principally the Courts’ power, to the community.
2. The Family Group Conference as a mechanism for producing a negotiated, community response.
3. The involvement of victims as key participants, making possible a healing process for both offender
and victim. Judge Fred McElrea (NZ)
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5. Should children actively participate in formal criminal processes?
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6. Should a child ever be transferred to the adult criminal court for trial/sentence?
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7. Are our responses to young offenders “evidence based” and consistent with best
international practice?
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7. Are our responses to young offenders “evidence based” and consistent with best
international practice?
We have never known more about what works with young offenders and what doesn’t…….
For instance there seems to be two types of young offenders….
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“A substantial body of longitudinal research consistently points to a very small group of males who display high rates of antisocial behaviour across time and in diverse situations. The professional nomenclature may change, but the faces remain the same as they drift through successive systems aimed at curbing their deviance: schools, juvenile-justice programs, psychiatric-treatment centres, and prisons” (Moffit: 1996)
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8. What use should be made of prison and
detention centres for young offenders?
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Does prison work…?(From Lipsey,1992)
Intervention Type
Prepared for employment
Behaviour contract
Institutional training
Court/Probation
Offender Counselling
Family Counselling
Deterrent Sentencing
Change in expected re-offending rate
35% decrease
25% decrease
15% decrease
10% decrease
8% decrease
No change
25% increase
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Figure 2: De-carceration: number of cases receiving custodial sentences: 1987-2001
0
50
100
150200
250
300
350
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
Year
Num
ber of
cas
es
Total custody
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Conclusion
In New Zealand…... The Children, Young Persons & Their Families Act, 1989…..introduced a revolution.
3 things in particular changed:
1. The number of young offenders charged in the Youth Court was significantly reduced. Firm, prompt, community-based responses are used for at least 80% of youth offending.
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Conclusion
2. With the introduction of the Family Group Conference (FGC), a restorative justice approach was developed, representing a partial transfer of sentencing power to the community and families, but with the victim centrally involved
3. There was a profound reduction in rates of imprisonment
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Conclusion
Despite
• less use of Court processes and charging
• use of a Family Group Conference system involving victims
• less use of imprisonment,
youth offending has remained relatively stable over the last 5-8 years
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Hemi’s song
I’m sorry for all the pain that I causedPutting your family through something I could never have stoppedAnd now I’m staring at the stars thinking of what i have doneSomething stupid of course what was I thinking ofLooking for my mentality but that was lostBack in the days BC id be pinned to a crossBut instead I’m writing this rhyme because you gave me a chanceSo in the words that I writeYou should know that they came from my heartYou opened my eyes despising what I had doneLook above and find the strength to carry on….
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Hemi’s song verse 2
The stupid things I’ve done in my lifeCreating enemies that want to bring a lot of strifeWe’d fightOn the streetsIs probably where you would see meDrugged out struggling to breathBut now im down on my kneesWith a million apologiesPlease time freeze wish I could turn back the timeRewind but its all over and doneA new era begunThe sun has risenAnd its shining throughThis song I compose is dedicated to you.