29. Memorandum submitted by the National
Association for Youth Justice
The NAYJ is the national practitioner based
organisation that campaigns for justice for children in trouble.
It has a national committee and membership to which are federated
regional organisations, who promote the principles embedded in
the NAYJ Manifesto. As such this submission focuses on the outcomes
for children.
INTRODUCTION
There can be little doubt of the political profile
currently being accorded to measures to deal with Anti-social
Behaviour. The White Paper on anti-social behaviour, [103]the
rapid production and progress through Parliament of the Anti-social
Behaviour Bill, the launch of the Government Anti-social Behaviour
Action Plan[104]
personally involving the Prime Minister and recent, high-profile
public statements, again involving the Prime Minister, give testament
to this. This is all the more remarkable given that 15 years ago
the expression was scarcely in use, and the links between anti-social
behaviour and offending behaviour, although recognised by practitioners,
was not part of a clearly articulated and evidenced model.
There are some general issues NAYJ would raise
before addressing the issues the Committee wishes to address.
GENERAL ISSUES
An alternative system/route to custody
The NAYJ believes the anti-social behaviour
measures have effectively constructed an alternative system to
that of the criminal justice system. This alternative ensures
the use of custody at a significantly lower threshold (in terms
of seriousness of offending) than would be the case if criminal
proceedings were followed for the same behaviour. It is less rigorous,
involves reduced cost and less rigorous standards in terms of
evidence. In the case of alleged breach of an interim order it
must be noted the pattern of behaviour, and thus the grounds for
prohibitions, have yet to be satisfactorily established. The use
of custody as the "entry level" breach penalty has significant
implications for children in trouble with the law, where diversionary
principles from formal proceedings as well as custody, are a keystone
to the system.
Anti-social behaviour—a "youth"
issue?
The media, in particular the "red top"
popular press, have fuelled the perception that anti-social behaviour
is solely a "youth" issue. "Teenage yobs",
"young louts" and their behavior is all that matter.
This is reinforced by the eagerness that local press give to extensive
coverage to ASBOs made on teenagers. This impression is reinforced
by nearly 65% of ASBOs[105]
having been made on those under 18. It is scarcely surprising
that they are interpreted as an "anti-youth" measure.
The use of language
The lack of development of a suitable lexicon
of easy to use terms for anti-social behaviour means it has taken
its terminology from the criminal justice system. Thus there are
"offenders", not people who behave anti-socially; they
"offend" not behave anti-socially. It may well be the
new occupation of anti-social behaviour practitioners come from
occupations that are particularly familiar with criminal justice
terminology and is an easy way to refer to "perpetrators"
engaging in "anti-social acts". Also all the forms of
anti-social behaviour constitute offences. However, none of these
are justification for the criminalisation of those who have not
been properly convicted by a criminal court. The NAYJ believes
it crucial to the inclusion of those who are experiencing impoverished
circumstances, to avoid their "criminalising by language"
and thus promote exclusion.
SPECIFIC ISSUES
The causes of anti-social behaviour
The early 1990's saw increased attention paid
to the causes of "social exclusion", in particular the
areas unfortunately labelled "sink estates". Of particular
concern was:
(a) its apparent generational nature; and
(b) its seeming intractability.
Research (originating from America) linked anti-social
behaviour with offending, and the "fear of crime".[106]
Communities were depicted as plagued by persistent petty offences
such as littering, graffiti, abuse, obstruction, and criminal
damage involving groups or neighbours as antagonists. [107]Research
also highlighted that the worst effects of victimisation, often
with children as the victims, were often felt in impoverished
communities, with lack of legal assistance for victims who were
the subject of actual or feared intimidation and reprisals.
An "english" model of what was termed
the "Anti-social Behaviour cycle" was presented in "Mis-spent
Youth" (Audit Commission (1996) London p90) and further developed
in "Mis-spent Youth '98" (Audit Commission; London 1998
p 48-50). This clearly identifies:
— aggressive and hyperactive behaviour;
— truancy and exclusions;
— unstable living conditions;
— lack of training and employment;
and
as specific and self reinforcing characteristics
of communities in which anti-social behaviour is a feature.
Since then the identification of these "risk
factors" has occupied much effort. Possibly the most comprehensive
to date is "YJB Research Note No 5; Risk and protective factors
associated with youth crime and effective interventions to prevent
it" (2001; Youth Justice Board; London).
Consideration of the outcome of the work on
risk factors is that those relevant to anti-social / offending
behaviour are identical to those involved in welfare of children.
There is not one set that are involved in anti-social / offending
behaviour with a discrete, different set involved in child welfare
cases. The NAYJ believes what is involved are individuals and
communities living in poverty, including economic, emotional,
and impoverished social capital. It also believes chance plays
a part in determining whether a child in such circumstances experiences
the child welfare or criminal justice systems.
Effectiveness and proportionality of current powers
With some of the powers still to be implemented,
and many of those contained in the Anti-social Behaviour Act 2003
it is possibly premature to undertake a comprehensive, detailed
evaluation. Accordingly the NAYJ would urge the Committee to consider
the following points:
(a) That there will be rigourous and thorough
piloting and evaluation before Penalty Notices for Disorderly
Behaviour (PNDs) are implemented for 10-15 year olds. The NAYJ
believe these measures are inappropriate for those under 18. It
is clear there is enthusiasm on the part of the Government for
speedy implementation of this. [108]The
NAYJ believes the lack of any adult parent/carer role in the process
means it is fundamentally flawed. It even lacks the duty to contact
such that is present in the "street bail" provisions—analogous
"ticket issuing" exercise—recently introduced
by the Criminal Justice Act 2003.
(b) It is clear different Police Forces have
implemented the Group Dispersal powers in widely differing ways.
Some resorted to their exercise immediately they were available,
others have kept them as a measure of last resort. Clearly there
is no "base line" in their use to enable comparison
between areas. With the British Crime Survey identifying the gathering
of groups of youths as a major anti-social behaviour problem the
NAYJ believes this will further reinforce the perception of anti-social
behaviour as a "youth issue" (see above). The NAYJ believes
the "one size fits all" nature of the "curfew"
hours, and the lack of guidance/models for ensuring a truly inclusive
consultation exercise with the community and thresholds for consideration
to their use means again comparison as to efficacy and proportionality
will be problematic.
(c) The NAYJ accepts that Acceptable Behaviour
Contracts (ABCs) may have a utility in making a person aware of
the impact of their behaviour on others. However, the NAYJ knows
of no national monitoring of these, nor guidance on the degree
in which these are a "fait a complis". Proportionality
could be an issue as the role of negotiation in agreeing the requirements
is unclear, as is the ability for parents and children involved
in the process to seek advice and support from others in.
(d) Particular issues for the NAYJ relating
to Anti-social Behaviour Orders are:
(i) Whether they are measures of "last
resort" or not?
(ii) The proportionality of order length—five
years for a 10 year old is half their life.
(iii) Are nationwide prohibitions on such
as ownership of specific types of clothing proportionate?
(iv) The disproportionate nature of the use
of custody as the "entry level" sanction for breach.
Enforcement and co-ordination
The NAYJ is somewhat alarmed at the apparent
disparity between different localities in the quality of co-ordination
and consultation between agencies involved in countering anti-social
behaviour. Practitioners report not being aware that a decision
to seek an ASBO on a child until application is made in court,
or an order is asked for on conviction. What is clear is that
where a clearly co-ordinated process for planning for applications
exists, much more opportunities for diversionary efforts exist,
and these can and are often integrated into the process. Devon
and Cornwall Police have adopted such a strategy which reduces
the unnecessary use of measures which are costly to obtain and
monitor.
The NAYJ opposes the strategy of "enforcement
by publicity". Local communities know who it is that behave
anti-socially. Publicity is rarely community based (cf the "shop
a yob" campaign run by a red top national newspaper), is
gratuitous, and highlights individual children as headed for social
exclusion and thus vulnerable.
Impact of Government initiatives
The NAYJ believes the focus on the numerical
use of formal powers is not productive in seeking locally based,
informal solutions to anti-social behaviour.[109]
The NAYJ counsels caution over such as the "Academy"
exercises recently run by the ASB Unit, which appeared to promote
use of formal measures as a "good thing" in itself.
The NAYJ believes the current, high profile emphasis on the instance
of anti-social behaviour and its corrosive effects is creating
a paradoxical situation of increasing the fear of mis-behaviour
during a period of sustained reduction in offending overall. A
balance needs to be struck which promotes the awareness of anti-social
behaviour and available measures without increasing fear of crime.[110]
The role of parenting support, youth and community
services and the youth justice system in diverting young people
from ASB
With the identified risk factors above, the
NAYJ believes high quality parenting support (particularly where
voluntarily accepted) youth and community services are crucial
in diverting young people from anti-social behaviour. The reported
significant reduction in areas where such preventive initiatives
as Splash, YIPs, and YISSPs have been run are a testament to this—as
is the rise again when seasonal schemes end. The NAYJ is opposed
to the involvement of formal youth justice agencies as direct
service providers in preventive activity. This is with full knowledge
of the recent YJB/ASBU guidance to YOTs on the latter's role with
anti-social behaviour. Children not involved in offending behaviour,
or below the age of criminal responsibility, should not engage
with criminal justice agencies. Such would lead to stigmatisation
resulting in promotion of social exclusion. There needs to be
clear separation between non-offenders and criminal justice agencies.
This might be achieved by service provision by a voluntary organization,
under the "aegis" of the YOT.
Disparities in levels of ASB and in the use of
powers to combat it across the country
The NAYJ believes our understanding of differences
in levels of anti-social behaviour cannot be based on raw numbers
of the times formal powers are used. The picture is far more complex
than "a lot of ASBOs means there's a lot of anti-social behaviour".
It is dependant on whether there is exhaustive diversionary activity
from formal proceedings, with a clearly structured incremental
set of interventions, or whether formal proceedings are a "first
option" strategy. The former strategy could be dealing with
far more anti-social behaviour, but in a more measured, cheaper,
informal way. Clearly the NAYJ believes the use of formal power
should only happen after diversionary routes are exhausted and
as outlined above, there should be a co-ordinated planning and
consultation structure.
Responsibilities of the private sector for tackling
anti-social behaviour
The NAYJ sees no role for the private sector
in the exercise of anti-social behviour powers.
The NAYJ, in line with comments above regarding
avoidance of net widening and criminalisation of those not convicted
of an offence, sees an extensive role for voluntary organizations
in the provision of preventive services.
13 September 2004
103 Respect and Responsibility-Taking a stand against
Anti-social Behaviour (Cm 5778) Home Office 2003. Back
104
Together-tackling anti-social behaviour Home Office (2003). Back
105
available at http://news.bbc.co.uk/1/hi/programmes/kenyonconfronts/3230997.stm Back
106
Some examples of work focusing on these are Broken Windows Wilson,
J Q, and Kelling G, in Atlantic Monthly (1982) February
pp 46-53; Disorder and Decline-Crime and the spiral of decay in
American neighbourhoodss Skogan, W, (1990)University of California
Press; Safety in numbers Audit Commission (1999); DETR Analysis
of English Housing 1997-98 (1999). Back
107
Some doubt has recently been cast on the degree and extent of
the fear crime see "The Frequency of the Fear of Crime"
Farrell & Dodd to be published British Journal of Criminology
vol 44 no 1. Back
108
Official Report, Commons, 21 January 2004; col 1319. Back
109
The Times 31 August 2004. Back
110
Some doubt has recently been cast on the degree and extent of
the fear crime see "The Frequency of the Fear of Crime"
Farrell & Dodd; British Journal of Criminology vol
44 no 1. Back
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