te kooti taiohi o aotearoa the youth court of new zealand

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

3 Footer txt Te Kooti Taiohi o AotearoaThe Youth Court of New Zealand

Secondary school student physics exam question:

Discover the height of this building using a small barometer?


Eight key questions to consider when children come into conflict with the law


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


1. At what age should children be held criminally liable for their actions ?


2. To what extent should child offending be considered as raising care and protection

issues?


3. Do all children who break the law need to be charged and brought to Court?


4. Should the state’s power to resolve child offending be (partially) transferred to

families, victims & communities?


5. Should children actively participate in formal criminal processes?


6. Should a child ever be transferred to the adult criminal court for trial/sentence?


7. Are our responses to young offenders “evidence based” and consistent with best

international practice?


8. What use should be made of prison and

detention centres for young offenders?


Outline

• Starting point: the need for a principled approach

• Eight issues

• Conclusion


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


…as a father

Dear Dad

Whenever I have a problem I always follow your

advice…..

And ask Mum

Happy Father’s Day


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


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)


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


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


2. Eight key questions to consider when children come into conflict with the law



• 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



• “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


2. To what extent should young offending be considered as raising care and

protection issues?


2. To what extent should youth offending be considered as raising care and

protection issues?

Perhaps the great issue of child/youth criminal law??


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?


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


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?


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.


3. Do all children who break the law need to be charged and brought to Court?


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%?!


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”


• 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


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


4. Should the state’s power to deal with offending be (partially) transferred to families, victims and the community?


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


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)


5. Should children actively participate in formal criminal processes?


6. Should a child ever be transferred to the adult criminal court for trial/sentence?




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….


“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)


8. What use should be made of prison and

detention centres for young offenders?


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


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


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.


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


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


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….


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.

te kooti taiohi o aotearoa the youth court of new zealand

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