Nacro's response to Breaking the Cycle Green Paper

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Breaking the Cycle: Nacro’s response | 44Section 10Young peopleQ48 How can we simplify the out-of-court disposal framework for young people?Nacro has been calling for a diversionary set of principles to be established, based on the UnitedNations Charter for the Rights of the Child (UNCRC) and related international guidance and rules.These will give prominence to the principles of avoiding criminalisation, informalism, voluntarismand intervening to the minimum level necessary. The Children Act principle of ‘no order unlessbetter than no order’ should apply when public protection considerations allow. The rationalefor this is that desistance from crime can be linked to maturation, social bonds and individualnarratives. Desistance is a process rather than an event 28 and, according to research by Marunaand Farrall can take place in phases of primary desistance (achievement of an offence-freeperiod) and secondary desistance (an underlying change in self-identity to the ex-offender). 29According to McVie there are four facts that any youth justice system should take account of: 30• Persistent serious offending is associated with victimisation and social adversity.• Early identification of at-risk children is not a watertight process and may be iatronogenic.• Critical moments in the early teenage years are key to pathways out of offending.• Diversionary strategies facilitate the desistance process.In cases where public protection is not a presenting issue, no further action should be allowed,with informal actions (including restorative activities) provided for. The warning could bereplaced by a caution where appropriate. The caution is still the default common languageused by judges, magistrates and others and is prominent in the adult system. The cautionis understood by all despite the final warning having been pressed into use by the previousgovernment and the Youth Justice Board for over a decade.Decision making will always be finally undertaken by the police (helped by the CPS to a lesserextent than is the case currently). But the models that make use of a multi-agency or interagencyteam to assess, make recommendations and co-ordinate any restorative or otherinterventions or support services should be reviewed and put in place nationally. The models toconsider include current ones (Swansea etc) as well as the (researched) model that featured inNorthamptonshire, which was the stated model for multi-agency youth offending teams.28 Laub J and Sampson R (1993) ‘Turning points in the life course: why change matters to the study of crime’Criminology, 31, pp.301-2529 Farrall S and Maruna S ‘Desistance-focused criminal justice policy research’ Howard Journal of Criminal Justice,43, pp.358-36730 McAra L and McVie S ‘Youth crime and justice: key messages from the Edinburgh Study of Youth Transitionsand Crime’ Criminology and Criminal Justice, 10(2), pp.179-209
Breaking the Cycle: Nacro’s response | 45The concept of ‘two strikes and you’re out’ should be replaced by a system with flexibility atits core. This should include the potential for diversion for those who have previously beenconvicted in court. The process for diverting cases back from court following the start of formalproceedings should be improved considerably.Family support work and parenting services in relation to out-of-court arrangements should beprovided by mainstream or specialist non-criminal justice agencies rather than the youthoffending team. In this context, youth inclusion and support panel type services should clearlybe non-criminal agencies or be combined with mainstream, ECM-led integrated teams.Parenting services are critical but parenting orders should be reviewed with a view to beingused in exceptional circumstances. Penalty notices for disorder should be reviewed with a viewto abolition. On the other hand, compensation can play a part, even in informal diversionary actions.Although young people have a right for criminal processes to be conducted without unnecessarydelay, it can also sometimes be counter-productive and contrary to their best interests if theyare conducted too fast and the quality of assessment and decision making is compromised.Q49 How can we best use restorative justice approaches to prevent offending byyoung people and ensure they make amends?Nacro supports the proposals to develop and expand restorative justice approaches. However,there is a need to define precisely what is meant by the term ‘restorative justice’ (RJ). We mustbe clear that RJ should be genuinely restorative and, whilst there is a place for reparative activities(or unpaid work), this should not be allowed to be a default, production-line response, or bemistaken for RJ. Whilst minimalist restorative actions, such as those suggested by the police, canbe useful, we also need further investment in more comprehensive approaches where appropriate.RJ approaches should be an integral part of youth justice practice. Confronting unacceptablebehaviour and dealing with any problems associated with it has the potential to be restorative andis a means of helping young people to think about the impact of their actions on others. As RJmight feature more than once in a young person’s passage through the diversionary and youthjustice systems, it should be employed only where it is considered to be meaningful and necessary.RJ can be at its most effective in response to serious and very serious offences and is notsimply a response for low-level minor offending committed by young people. It can be usedeffectively to tackle much more serious offending in the adult criminal justice system. It shouldalso be noted that RJ can be more effective with older or more mature young people than withvery young and immature children.The referral order in the court system should be used more flexibly, with the potential for it to beused regardless of previous sentencing history (eg, even where a custodial sentence has been usedpreviously). It should only be used where it will not be disproportionate to the seriousness of theoffending. The notion of the court having to approve the content of a negotiated contract should be
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Nacro's response to Breaking the Cycle Green Paper

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