Youthful Offenders in British Legal

Youthful Offenders in British Legal Sys

Youthful Offenders: Custodial Sentence

Argument both for and Against in Relation to British Law

The stated objective of this work in writing is to research and make examination of the arguments both for and against giving first time young offenders a custodial sentence.

The British legal system has historically applied alternative sentencing to juvenile or youthful offenders in dealing with the offenses being committed, yet the legal system in Britain, just as do many legal systems throughout modern society has failed to value the family in the role of providing 'custodial' type assistance to the youthful offender.

Overview of the British Criminal Justice System]

The countries of England and Wales are governed by an uncodified type of constitutional rule or law. British law, or the British Constitution is "a blend of statute law, precedent, and tradition dating back to the time of King Henry I (1100)." (Phillips, et al. 2005) There are three document that influence British legislation or rulings. Those are (1) The Magna Carta (1215), (2) The Bill of Rights (1688), and (3) The Act of Settlement (1700). These three are that which is representative of "the three major statues that define British legal and political history. (Terrill, 1984:2 as cited by Phillips, et al. 2005) According to the National Institute of Justice Report the legal system that exists in England and Wales is "adversarial in all court, including the juvenile courts....prosecution must disclose relevant information to the defense, but the corresponding duty on the defense does not exist." (NIJ Report) The Acts of the Union of 1536 and 1542 are the sources from which the common legal systems in both England and Wales are derived.

Methodology of the Research

The methodology of this research will be through a review of literature that is relevant and is of the nature of peer-reviewed literature.

I. Age of Juvenile Offender according to General British Law

The age of 'responsibility' or 'accountability' in the criminal justice court in England and Wales is the age of 10. Juveniles in the age range between 10 and 17 years old must appear before a youth court upon receiving a criminal charge A National Institute of Justice report states that "the sanctions available to youth courts are more restricted than those for adult courts, the major differences being that fines can be imposed which parents must pay and supervision or attendance center orders may be imposed." (NIJ Report) Options exist that may be pursued in lieu of typical trial on the case the defendant is charged under. For example, the following options are available in the British Court/Legal System. Alternatives to trials exist, according to the National Institute of Justice Report due to the possibility of a "formal caution administered by the police, used disproportionately for young offenders...." Stated is that a caution of a formal nature makes as a requirement that specific conditions be met. Inclusive in these requirements is that the offender: (1) admit to the offense; and (2) The offender and their guardian must be willing to "proceed as the police wish."

The following is stated in relation to Youth Courts which are one within the division of various Special Courts: Courts. Youth courts are specialized magistrates' courts that adjudicate cases involving defendants less than 18 years of age. There are restrictions on the access of the public and press to such courts. The defendant and any other witnesses under 18 years old must not be identified. Arrangements also exist for child witnesses to give videotaped evidence to avoid direct court appearances. (Phillips, et al., 2005)

Theories in criminal law, specifically British Criminal law are characterized by the classical and positivist theoretical bases. The outlook in criminal law following the French Revolution were affected by the penal rules of the Europeans which had as its' requirement "precise and detailed rules." This school of thought in the law was one that pursued objectivity and set aside the personality. The polar opposite to this theoretical framework in criminal law was that which is referred to as the "positivist" theory and focuses on crime prevention instead of justice restoration. The positivist theory holds that "crime is not the result of free and rational choice, but instead is rooted in biological, psychological, or social causes; it is the doctrine of necessity." (Phillips et al., 2005)

Positivist criminology holds as its theoretical framework that the emphasis should not be placed on whom is responsible but instead on the causes of criminal acts. Positivism is accredited with having introduced the 'treatment theory' in the decade of the 1950s. Agnes Hocheman, in the work entitled: "Scarf and Scales: Variations on Probation Order in the History of Juvenile Penal Law" states that it was the Positivist theory that changed the face of the punishment system relating to juvenile offenders in British Courts and that "Up until that time youth were not punished so strictly as adults, but generally with the same sanctions. As a consequence of positivist criminology, the sanctioning system of juveniles was enlarged, for example with the probation order, which was enacted at that period of time.

II. Alternative Sentencing Solutions Available in British Courtrooms

First it is important to understand that probation and the probation officers themselves are considered to be a process that is 'restorative' both in theoretical framework and in nature and allows the offender to make amends for their actions. This is referred to as the "balance between damage and recompense." The following are all phases in the probationary process:

a) Diversion from the criminal procedure: In many countries different experts are gathered to work in teams figuring out ways to avoid legal procedures.;

b) Before the sentencing: Probation officers are charged to make a study for the court giving information about the juvenile offender and the crime, and suggesting a penalty;

c) Enforcement of sanctions: As we have seen, probation can belong to several kind of sanctions, such as parole, deferred sentence, suspended sentence, community service, restitution, mediation, training courses and complex punishments (eg. deferred sentence with community service);

d) Aftercare: It begins even in the prison and reformatory. Probation officers try to protect the prisoners' interests as much as possible and to help them remain in contact with their relatives. They speak about the crime, organize therapies and cooperate with the officers-to-be. After the release they try to help the juveniles to find jobs and accommodation. In Western countries - especially in Britain and the Netherlands - a large number of voluntary organisations support these aftercare groups." (King, 2004)

Hocheman states further that in British Courts, during the probationary period "juveniles have to keep rules ordered by the law and the judge. These rules concern work, study, relations with officers, spare time, participating in programmes and trainings, attending probation centres, and staying in probation hostels." Although there is little recorded in history, the work entitled "The Development of Informal Reformatory Sentences for Juvenile Offenders in the Late Eighteenth and Early Nineteenth Centuries" The English criminal justice system was dealing with a dilemma in the appropriate sentencing in answer to the accelerating number of juvenile offenders that the courts were having to handle in the early part of the nineteenth century. In the first two decades of the 1800s the judge began an initiative to develop sentencing policies which were informal reformatory sentences. There was an overlapping at times in terms of the personnel involved in these alternative sentencing programs. Stated b King (2004) is:

The main momentum behind the development of this informal reformatory sentencing system arose from the creation of institutions with reform-based regimes capable of being used as sentencing alternatives, and then from the courts increasing desires to use them as they became aware that all other sentencing options were inadequate when juveniles were involved. Once the latter started to use charitably financed institutions as reformatories this then allowed the Refuge in particular to gain financial assistance from the government and this in turn enabled it to further expand its operations. By 1835 the Refuge was being described in the Times as 'almost a government concern' [58].The first partially state funded juvenile reformatory in England had come of age." (King, 2004)

III. Youthful Offenders: Custodial Sentence

It is inherent wisdom in the Judge that is able to allow young offenders, who are in actuality victims of their own circumstances rather than criminal in nature a chance to reform and take active part in society. Many young offenders face criminal court Judges in courtrooms all across the world each hour of each day. In many countries these youth are tried as adults and found guilty in the capacity of an adult and are sentenced and put to death. According to the work entitled "The Personal Social Services: Social Work and Social Care" published by British Social Services Agency lists punishment alternatives in relation to juvenile justice to be in the forms as follows:

Retribution - returning like for like Public disapproval - reacting to unacceptable behavior

Correction - punishment is educative, guiding people to the correct path

Containment - restraining offenders from further offences

Deterrence - preventing further actions, either from the offender or by others

Rehabilitation- reforming and reintegrating the offender." (Social Services Policy Center - Britain, 2005)

Further stated is that "Most offenders in the UK are dealt with by non-custodial sentences. Custodial sentences for indictable offences by adults account for less than one sentence in five, while fines cover more than a third of all offences. About a fifth are given intermediate sentences like probation or community service. The Probation Service (in England and Wales) administers supervision in the community, social work in prisons and after-care: their duty is to 'advise, assist and befriend' offenders. Scotland's equivalent is social work with criminal justice, but currently there are moves to pass this responsibility to the Scottish Prison Service." One problem exists in the fact that "the age of criminal responsibility is not uniform throughout the UK; in England and Wales, it is a mere '10' years of age.