Former youth justice specialist at the Scottish Government, Stella Perrott, compares our system to the one in Northern Ireland, which she recently helped review

Although Northern Ireland has been responsible for most of its own affairs following the Good Friday Agreement in 1999, responsibility for Justice was not devolved to the Executive until April 2010. To support this development the Department of Justice commissioned a number of independent reviews including reviews of prisons, community safety, criminal records, bail and access to justice. It also commissioned a review of youth justice and the report was published on 26 September 2011.

Children and young people’s offending is much the same across the whole of the UK.

Its onset peaks at about 14 years of age and tails off towards the end of the teenage years.

Offences tend to be clustered near the less serious end of the spectrum with vandalism, theft and breach of the peace being the most common. In Northern Ireland there is a higher level of taking and driving cars than in Scotland and ‘recreational rioting’ by young people is a perennial difficulty, mostly during the summer marching season. Alcohol presents as many problems in Northern Ireland as it does in Scotland with a considerable proportion of young people’s offending being committed while under its influence. Illegal drug misuse features less but, in contrast to the rest of the UK where consumption has flat lined, it is rising in Northern Ireland.

Echoes of the Troubles linger and sectarianism is still a major problem which dominates the lives of working-class young people in particular. Going outside one’s neighbourhood carries considerable risk and many young people tend not to mix with others ‘across the divide’ except through specific arrangements.

Youth justice in Northern Ireland follows a ‘justice’ model as opposed to the ‘welfare’ model that operates in Scotland for those under 16. The age of criminal responsibility is ten and young people aged between 10 and 18 who offend are dealt with through the courts or are diverted from the courts by way of cautions, warnings or a restorative conference. Restorative justice is at the heart of the youth justice system and most young people who offend will be made subject to a Youth Conference Plan either as a diversionary measure or as a court ordered sanction. Since 2003 there has been a Youth Justice Agency which undertakes most of the work with offenders and is responsible for Youth Conferences. The Probation Service also supervises some young people. There is a Youth Court but the Judiciary, except in a few cases, does not specialise. Custodial provision for both remand and sentenced prisoners comprises one Juvenile Justice Centre (JJC) and one Youth Offender Centre (YOC) (the population of Northern Ireland is about one quarter of that of Scotland). The JJC caters for all young women under 18, all young men under 17 and a number of the more vulnerable 17 year olds (about 25 per cent) and the YOC caters for the remainder of young people under 21. Very few young women are imprisoned and just one young woman under 18 was in the JJC (on remand) when we visited.

We found much that was good in Northern Ireland. The JJC, managed by the Youth Justice Agency, can compare with the best worldwide not only in terms of its design but also in respect of its regime and ethos.

Both the Youth Justice Agency and the Probation Service have the confidence of young people, communities and the rest of the justice system and there is a low level of incarceration as a sentence (comparisons with Scotland are difficult but it is about half that of England and Wales). We were impressed with the Youth Conferencing system. It is well managed, engages young people, their parents and victims effectively achieving high levels of victim and offender satisfaction and the rate of reoffending appears to be lower than for other comparable options.

The skills of youth justice workers and youth workers working in community-based projects were particularly impressive. We also found that in spite of the difficult relationship between young people and the police, much progress in the development of community policing has been made over the past decade.

Similarly, while we thought too many young people in care were going into custody, we found this was being comprehensively addressed and monitored.

There were some aspects of the system that we thought worked less well or would benefit from renewed attention. Early intervention and prevention is under-developed (in spite of an enthusiastic and committed health and social services sector); education is insufficiently engaged with young offenders and in interagency discussions about how best to help them; custodial remands are overused and we were shocked at the length of time it took to process cases, not only through the courts but also where diversionary Youth Conferences were employed as a disposal.

We did not think the youth courts operated in such a way as to enable young people to understand or participate in the proceedings and we also considered that the age of criminal responsibility was too low at 10. We further recommended that all young people under 18 in custody should be accommodated in the JJC rather than in the prison service managed YOC.

So, how does Scotland compare and what can we learn from Northern Ireland? In Scotland there is a clear distinction in law between those under 16 who are considered to be children, and those over 16 who are treated as adults and it is this distinction that impacts most tellingly on the system’s strengths and weaknesses.

For those offenders under 16, the welfarebased approach, with the Children’s Hearing providing the forum in which decisions about statutory intervention are made, works well on the whole. Although Children’s Hearings are not always as well understood by young people as originally envisaged and their participation is limited by the nature of it being a formal process, the hearings are far more comprehensible and participatory than a court. Panel members receive considerably more training than the judiciary on matters relating to child behaviour and many develop a high level of expertise in communicating with young people and their parents.

Legislation requires that a Children’s Hearing is called only when there is a need for compulsory measures of care on either offending or welfare grounds. The implementation of Getting it Right for Every Child over the past five years has led to a sustained improvement in how agencies respond to young people under 16 who offend. Increasingly, agencies are taking action to address offending or the social and familial problems associated with offending within a couple of weeks of the young person coming to the notice of the police, leaving only the small minority of cases that require compulsion to progress to a Children’s Hearing.

Consequently, as the number of offence referrals to the Reporter has dropped (by about 40 per cent over the past three years), many more children are receiving social work assistance to tackle the problems leading to offending. By keeping children out of the Children’s Hearing system and reducing the numbers in contact with criminal justice agencies and services, the risk of further offending is minimised. A further strength of the Scottish system for those aged below 16 is the weaker powers the police or courts have over the detention of young people. The high level of youth custodial remands we found in Northern Ireland simply could not happen in Scotland – at least for those under 16 and, given the minor nature of much of the offending that resulted in a remand in custody, this can only be to the good.

The way offenders aged between 16 and 18 are dealt with has also improved in recent years in Scotland. There is now a greater likelihood that young people will be kept within the Children’s Hearing system if they are ‘looked after’ and greater use of diversionary measures such as cautions and fiscal fines have led to fewer young people in this age group coming through the courts; as many as 40 per cent of offending for 16-17 year olds is dealt with through diversionary measures, about the same proportion as for Northern Ireland. But, as in Northern Ireland, there is considerable scope for dealing with much more offending through restorative cautioning or social work intervention without recourse to criminal procedures.

The 16-18 age group is also now better served by the improved quality of provision that recognises and caters for the limited understanding young people often have of the criminal justice system and what is expected of them. In particular, innovations such as the introduction of the court support worker for those aged between 16 and 18 appearing in the courts is to be welcomed. Support for young people who struggle to understand the court systems and expectations encourages compliance with bail conditions or court orders, thereby reducing the likelihood of subsequent imprisonment for breach.

Across both age groups, the increased expertise held by specialist teams that supervise all young offenders up to the age of 18 has led to better practice and co-ordination, especially in respect of the most difficult or dangerous offenders. This, in turn, has encouraged greater confidence in community-based approaches to tackling young people’s offending.

In Scotland the number of 16 year olds sentenced to custody has dropped from an all time high of 159 in 2006-07 to 79 in 2010-11 and the number of 17 year olds has dropped from a peak of 404 in 2007-08 to 218 in 2010-11. This shift can be attributed, in part, to the measures outlined above. The reduction also follows a general trend towards more parsimonious use of imprisonment since the election of the SNP Government and a growing recognition across the whole of the UK that the costs of rising imprisonment are becoming increasingly unsustainable.

Alongside the reduction in the number of young people going through the courts and being sentenced to custody, there has been a reduction in young people’s offending – by as much as 20 per cent, according to some estimates. Although processing young people through the criminal justice system is known to increase the likelihood of further offending, there is insufficient evidence to say that the new measures are solely responsible for the current reduction. What can be said with confidence, however, is that measures to restrict the flow of young people into the courts and into custody are not having a deleterious effect on offending rates or on communities.

While policy and practice is improving, Scotland lags behind its Northern Irish neighbour and falls well short of international best practice in two crucial respects. Firstly, in Scotland most young people aged between 16 and 18 are still dealt with in an adult court rather than in a child or youth court or tribunal. The current system does not recognise the developmental differences between adolescent and adult cognitive capabilities, moral development, self-control and efficacy, all of which have been well researched and documented over the past twenty years. While new developments such as that of the court support worker may ameliorate the most damaging effects, the fact remains that children on reaching their 16th birthday are being dealt with in a system that assumes full and rational individual responsibility for behaviour. This contrasts with almost all advanced countries that operate a ‘youth’ system at least until 18 and sometimes until 21 in recognition of young people’s different stages of development.

Secondly, young people of 16 years and over in Scotland are held in a youth offending institution (YOI) catering for offenders up to age 21. The United Nations has consistently criticised Scotland for its provision for this age group and while improvements in how young people are detained at Polmont, including segregation in a separate unit from older inmates, have been made, it remains a prison with a regime, ethos, staff composition and structure of a prison.

The Scottish Prisons Commission noted the high level of problems associated with this age group in Polmont and that these problems were not being adequately addressed in a prison environment. It found a great many young people in custody were from a care background and a number were still in the care of the local authority. Many suffered mental health or learning difficulties. Few had stable backgrounds and the chances of getting a job or a training place on release were very slim for most. An institution where the main function is to address the risks associated with offending looks very different to one where the main function is custody.

Over the years there has been considerable debate about whether 16 and 17 year olds should be dealt with through the Children’s Hearing system or in a separate ‘youth justice system’. There are difficulties associated with both options. Criminal law deals poorly with the causal or risk factors leading to offending while care legislation prioritises the needs of young people over those of their victims or the wider community.

On a practical level, there is a lack of confidence in the hearings system’s capacity for dealing with this age group – although other jurisdictions seem to manage perfectly well within a welfare system and the current adult court system inspires no greater level of confidence – while the costs of a separate youth justice system with specialist courts and custodial provision for such a small group would be disproportionate.

These difficulties seem to have led to paralysis with any improvements, such as they are, emerging in a piecemeal way and are dependent on practitioner commitment and agency resources – which are now in short supply. Consequently, this age group remains neglected in an adult system.

Not only is this detrimental for the young people and those for whom the risk of offending is increased but the failure rate is so expensive. The time has come to open up the debate again. The crux of the problem lies with persistent or serious offenders aged between 16 and 18 for whom neither diversionary measures nor adult courts and their disposals are appropriate or effective. An age-appropriate forum in which decisions can be made about disposals is needed, coupled with the right resources that are known to be effective with this profile of young people.

Exploring how other countries have addressed this problem, and Northern Ireland provides an exemplar in many respects, may be a useful starting point. In particular, the restorative approach used for the majority of young offenders and the Juvenile Justice Centre provide models that merit serious consideration. Additionally, Scotland might also emulate Northern Ireland’s openness to scrutiny from outside. Perspectives from different jurisdictions on how youth justice operates in Scotland would provide new opportunities for challenge and reflection.

Stella Perrott is an independent consultant and writer.