THE HISTORY OF THE YOUTH COURT SINCE 1989
| J A Crockett |
Part III: THE SEEDS OF CHANGE: MAJOR REPORTS CONCERNING THE YOUTH COURT
There are four major reports which assess the efficacy of youth justice as implemented under the Act, and thereby implicate the Youth Court. These are the Morris and Maxwell study (1992), the Mason Report (1992), the Brown Report (2000), and the Youth Justice Strategy (2002). Three key themes emerge:
- an affirmation of the fundamental principles of the Act while suggesting ways to improve youth justice practice;
- under-funding of key support services upon which the Youth Court relies; and
- an acknowledgment of recidivist / serious youth offenders to whom different policies need to be applied.
A Morris and Maxwell: Conflicting Objectives or a Problem of Practice?
Morris and Maxwell were the first major researchers of the Youth Court, and continue to work actively in this field. From 1990 to 1992 they researched the extent to which the Youth Court was achieving the objectives and principles underlying youth justice.[56] They did this by interviewing 700 young people who came to the attention of the police, 200 of which were involved in FGCs and 20 of which appeared before the Youth Court. The general finding was that youth justice objectives were sound, and were being achieved. Accountability was being achieved through the high rate of completion of FGC plans. The goal of diversion from courts and institutions was certainly being achieved. Their research data was consistent with national data that in 1986 67 per 1000 young people appeared before the court compared to 16 per 1000 in 1992.
However, some problems were identified in the way youth justice principles were being implemented, and could be attributed to the fact that research was conducted in the early stages of the Act The study found that the Youth Court did not sufficiently accommodate Maori process and etiquette. Appointments of lay advocates, who can advise on cultural matters, were considered more as an inconvenience than a help.[57] While some judges softened the formidable nature of the court room by creating a less formal atmosphere, others maintained the formal layout and etiquette. Similarly, the standard of Youth Advocates varied greatly.
Other issues were identified as more systemic. Morris and Maxwell considered that the Act contained conflicting and contradictory objectives, such as reconciling offenders' needs and victims' interests, and enhancing offenders' well being while maintaining tariff considerations and accountability. The fact that these conflicting agendas were expected to be resolved within the single arena of the FGC often resulted in the victim's interests being subjugated by those of the offender because (citing overseas research) "when reparation and diversion are sought within the one forum then the victim almost invariably loses out."[58] The report concluded that the various purposes of the FGC may be incompatible. It suggested two options to resolve this problem: either establish a hierarchy of objectives, or resolve tensions according to the dynamics of each particular case.
McElrea responded that conflicting objectives are almost inevitable when a single piece of legislation seeks to accommodate different interests within the one system, and that the conclusion that victims would be the likely losers in a forum where reparation and diversion were sought was an "overly pessimistic view".[59] He cites subsequent events which challenge Morris and Maxwell's conclusion and suggest that the problems identified in the report may not be so systemic but could be remedied by improved resources and practice. Firstly, since the survey there had been a growing awareness, particularly amongst youth justice practitioners, of victims' needs. For example, a meeting convened in 1993 by former Principal Youth Court Judge Michael Brown encouraged Youth Court Judges to take note of cases where the victims have not attended FGCs, and to ask about the kind of preparation and extent of notice given to them. Secondly, legislative changes implemented following the Mason report encouraged fuller victim participation in the youth justice process.
B The Mason Report
While Morris and Maxwell's study made academic waves, it was the Mason Report that instigated legislative change. Two years after the Act came into force, public perception grew that the Act was 'soft' on juvenile offending and that police powers were too restrictive. This criticism came to a head after the high profile case of R v Irwin,[60] when a murder charge against a 15 year old was dismissed after a statement by the accused was ruled inadmissible on the grounds that the interviewing police officer had failed to warn the young person in terms of the legislation. Fisher J considered the breaches to be "individually significant and cumulatively overwhelming" and that unless the Act was to be ignored altogether the statement had to be excluded.[61] This led to public condemnation that the system had allowed a "guilty youth to go free".[62] In response to these pressures the Minister of Social Welfare, Jenny Shipley, requested a review of the Act. The result was a comprehensive review chaired by Ken Mason, "The Mason Report", in February 1992. After consulting several hundred individuals and organisations, the Review Team made 40 specific recommendations. While not all recommendations required legislative action, related to the Youth Court, or were adopted, key recommendations that did are discussed below.
1. Recommendations
(a) Family Group Conferences
The Report noted that while the FGC was a key factor in the Act's success, all too often FGCs were being conducted in a costly, inefficient manner with participants being ill informed. One victim supporter's complaint was that "several conferences started with a prayer in the language of the offender...this is not in the Act and has been objected to by myself and a former victim's advocate."[63] The report also noted that some victims were uncomfortable with the choice of venue, such as a marae:
"While there may be an element of racial sensitivity on the part of the Co-ordinator in agreeing to certain venues there can at the same time be a marked degree of insensitivity towards the victims who do not belong to that particular race."[64]
In response, the Review Team recommended that before a FGC take place all participants be given information, including details about the purpose of the conference, its date, time and venue, and the role which that participant may be expected to take during the Conference, all of which should be given in writing and a language which the participant is familiar.[65] As to the second issue, it was recommended that the FGC should also be held in a "mutually acceptable neutral venue."[66]
The extent to which these recommendations addressed underlying cultural issues is questionable. Both instances demonstrate an attempt by the YJC to hold the conference in a culturally sensitive way. Simply supplying more information regarding the nature of the FGC, or shifting the location to a 'neutral' Department office may not address these underlying cultural issues, and reinforces Morris and Maxwell's conclusion that there may be conflicting objectives within the Act that are difficult to reconcile.
The report also noted that time frames for youth justice FGCs were often being exceeded, with the demand to meet time limits sometimes resulting in poorly organsied and managed conferences. The report recommended that s 249 (which sets out the time limits within which a FGC must be convened) be modified by inserting the word "working" before the word "days."[67]
Another key recommendation was to facilitate FGC to be waived in situations where the YJC was of the opinion that it would be ineffective to hold further conferences. This recommendation represented the first erosion of the deliberately high threshold set under s 248, which provided that FGCs could only be waived when the following cumulative requirements were met:
(a) the offence was committed prior to a young person being convicted in the High Court or District Court or where a Youth Court makes an order under s 238; and
(b) the young person is subject to a full-time custodial sentence or a community based sentence or an order under defined paragraphs of s 283; and
(c) a YJC is of the view that the holding of a FGC would serve no useful purpose and the members of the family or whanau or family group agree with that view.
The Team agreed with the Auckland District Law Society that there was a diminishing return on successive FGCs. The process would fall into disrepute if a succession of conferences were held to deal with the same offender. It recommended that the cumulative requirements of s 248 should be substituted with disjunctive test. This would give the YJC more freedom to waive the conference in situations where it would seem to be deemed to fail. However, before making such a conclusion the FGC would be expected to consult with all those entitled to attend a FGC, except the young person.[68] The recommendation implies that the FGC is a decision-making forum; it is not an ongoing support group. However, by requiring consultation the importance of the FGC and the fact that it should only be waived in limited circumstances was acknowledged.
(b) Section 215: Police Powers versus the Young Person's Right to Silence
At the time of review, s 215 was relatively broad and provided that before questioning any child or young person in relation to the commission of an offence by that child or young person, the police must give that child or young person a set of warnings. In addition to the Irwin incident, the Report also noted several instances where s 215 entitled youths to evade questioning and prevented the police from controlling the situation. The police recommendation was adopted by the Review Team, namely that s 215 should be amended to permit the police to make "general enquiries" before explaining rights, while still requiring officers to explain rights before questioning a specific young person's involvement. It was further recommended that a working party comprising of officials from the Justice Department, Social Welfare and Police be formed to propose a definition of "general enquiries".
Opinions on how s 215 should be amended were varied, reflecting that this issue touched on the broader debate of how the balance should be struck between youth accountability through state control, and freedom through protection of civil rights. The Police were clearly in favour of modifying s 215 as it was an "extra provisions placing unnecessary limits on operational police officers trying to establish the nature of involvement of a young offender".[69] Speaking extra-judicially while Parliament was considering review of the Act, the Hon J Bruce Robertson also argued that broad reform was required so that the task of the prosecution would be easier in situations of empirically unlawful conduct, and that the legal system could be brought in line with community's expectations. He considered that outcry and pubic consternation following the discharge of Irwin was a "recent example of the anger, frustration and despair that can surface."[70] However, others were not so supportive of amendment. Judge DJ Harvey and the Rotorua Youth Justice Team considered s 215 to be an important protection of civil rights. The Department of Social Welfare considered that although children have the same rights as adults as regards police questioning, extra protection is required due to factors of immaturity and deference to authority.
2 The Government's Response
On 10 August 1993 Jenny Shipley introduced the Children, Young Persons and Their Families Amendment Bill to the House.[71] In her media release of the same day the Minister packaged the changes as a 'tough on crime' response to juvenile offending. It stated that changes were being made "to deal with young people who repeatedly offend and young people who think they can snub their nose at the police."[72] The Minister assured the "many New Zealanders" who were concerned that young people when approached for questioning are using s 215 to defy police officers that this would no longer be possible.[73] S 215 would be amended to oblige a police officer to inform a child or young person of his or her rights during questioning only when he or she has reasonable grounds to suspect the young person of an offence, but not during "general inquiries". Interestingly, while the Government initially agreed that "general inquiries" must be clearly defined as part of any amendment to s 215, following the working party's response it was decided that defining the term was "not a useful way to proceed because it is not possible to define this term exhaustively".[74]
The Government acknowledged that several changes would directly implement recommendations made in the Mason Report, and agreed with the Report's conclusion that the Act is sound but improvements can be made to ensure that the original intentions of the Act are being carried out. Key recommendations adopted include:
- Participants should be better informed before the FGCs regarding the date, time and venue of the conference and any role that they would be expected to perform.
- FGCs should be held at a mutually acceptable venue. Victims should not be deterred from attending a conference because they felt intimidated by the venue.
- FGCs should be waived and the matter referred directly to the Youth Court in set circumstances. This was designed to limit the frustration to those involved in a FGC from the "two or three percent of youth offenders [who] continue to re-offend despite the best of strategies agreed upon in the FGCs."[75]
However, the Government did not consider that inserting the word "days" before working would rectify the time frame problem. Instead, it amended the legislation to tighten the definition of "convene" and recommended that New Zealand Children and Young Persons Service (as it was then) establish new practice standards for the convening and holding of youth justice FGCs.[76]
C The Brown Report and Child, Youth and Family Services (CYFS)
CYFS is a key support service for the Court, receiving on average 6,000 youth justice referrals per year.[77] These are referrals for FGCs; either pre-charge FGC at the direction of the Police (about 2,300), or Court directed FGCs, after a "non-denial" (about 3,700). The scope of orders the Court can make for supervision and residence, and the ability of the above legislative amendments to be implemented, depends on the services and contracts with community organisations that CYFS has arranged. In December 2000 Judge Brown released Care and Protection is about Adult Behaviour (the Brown Report).[78] The Brown Report was the first Ministerial Review to highlight CYFS underlying problems, namely:
- seriously under-resourced services;
- a demoralised workforce resulting in part from poor public perceptions;
- variations in skill levels and expertise and inadequate supervision and support for social workers;
- serious problems in recruitment and retention of social workers; and
- a service that is too often reactive and crisis-driven.
The 1999 Post Election Briefing Papers of Child, Youth and Family reinforce these findings and demonstrate how underfunding has had direct negative impact on the department's ability to provide services. A per capita decrease in funding for the under-seventeen population between 1992 and 1997 "resulted in delays in service responsiveness at the front-end and a high level of unallocated cases nationwide. Rationing mechanisms were reactive measures that did not allow optimal service provision or help the credibility of Child, Youth and Family with clients, and that strained its relationships with key stakeholders."[79] The 1998 Budget returned per capita funding to the 1992-93 level. During 1998 and 1999 Budget rounds, additional funding was appropriated on a drip-feeding arrangement conditional upon the department meeting output obligations.
The situation was not improved by the Department's checkered history of restructuring. When the Youth Court started, the Department of Social Welfare had control over child and youth welfare. In 1992 New Zealand Young Persons and Their Families Service was founded, which became the Department for Children and Young Persons and their Family Agency in 1998. This agency became Child, Youth and Family Services in 1999 following its integration with the New Zealand Community Funding Agency. The unification was designed to provide better services for at-risk families, to improve coordination between services, and to "continue to provide youth justice services under the Act that address the objectives of holding the young offender accountable, preventing re-offending, and taking into account the interests of victims and improve responsiveness to Maori communities."[80]
The reality proved to be somewhat different. In 1994 Detective Senior Sergeant Steve Hinds described the underfunding of the Department of Social Welfare's youth section as "woeful", referring to one case where a sixteen year old had his eye stabbed out by a young offender, but two years later none of the resolutions decided at a FGC had been carried out. He said there were no resources to mention the outcomes of conferences.[81] Urgent CYF cases are still not being processed quickly enough; a Sunday Star Times Article in 2003 headlines "Urgent CYF case took 621 days to investigate", when it should have been dealt with within one week.[82]
The impact of under-funding on the Youth Court is substantial. Firstly, there are considerable delays before a case is even heard in the Youth Court. The ability of Youth Court Judges to place young people in Child, Youth and Family residences is restricted by a chronic shortage of available beds resulting from the reduction of the number of residences from 26 to 5 in 1995. There has also been a problem in relation to Northern Residential Centre (Auckland) in that because of planning laws and a Deed of Agreement, young people who have committed offences involving violence cannot be held there. One result has been that young people appearing before the Court in one city are held in a residence in another city and flown backwards and forwards to attend hearings. This has meant that the young people may be separated from their family, their Youth Advocate and their social worker. Another problem is that young people have at times been held in police cells for periods of up to six weeks because of the lack of available bedspace. This practice was strongly criticised by the Commissioner for Children and the problem is escalating. In 2002 over 447 young people were remanded in Police cells, some for periods up to 12 days each; total nights were 1152.
Ironically, community resources have been available that could have alleviated the problem. McElrea considers that an overly individualistic perception of criminal justice has resulted in a reluctance to approve and hand resources to Maori and Pacific Island community groups who are willing to take custody of children and young people:
"Ever since 1989 when the Children, Young Persons and their Families Act was enacted many Maori and Pacific Island community groups have been waiting in the wings for approval - and more importantly funding - as Iwi Authorities and Cultural Authorities able to take custody of young people in the community [...] The absence (until very recently) of such approvals has meant that the very few remaining State-run residences such as Weymouth have had to struggle inappropriately (and unfairly) to contain Youth Justice referrals as well as Care and Protection cases, and young people who are there for residential supervision alongside unruly would-be absconders awaiting return to court. Much of this could and should have been carried into the community."[83]
D Ministerial Taskforce on Youth Offending
The ongoing problems highlighted by previous reports prompted the establishment of the Ministerial Taskforce on Youth Offending in August 2000.[84] Its brief was to develop initiatives to improve the practice, process and inter-agency co-ordination to reduce youth crime and to ensure a collective approach to the use of resources in the youth justice sector. The Taskforce comprised of Chief District Court Judge David Carruthers (chair), current Principal Youth Court Judge Andrew Becroft (upon his appointment in June 2001), the chief executives of the Ministries of Justice, Social Policy, Youth Affairs and Pacific Island Affairs, Departments of CYFS, and Courts, New Zealand Police, the Crime Prevention Unit and Te Puni Kokiri. The wide group reflects the number of departments with a key interest in youth justice and therefore the importance of a unified approach. The Taskforce's work focused on consulting with key stakeholders, implementing projects in areas of immediate priority and developing a comprehensive Youth Strategy to guide Government in its response to youth offending. It did this by holding a series of meetings throughout the country and receiving feedback about a wide range of issues concerning the youth justice sector.
Many of the themes of the earlier reports were reiterated. The Taskforce found that while there is strong support for the legislative basis for the youth justice sector, there is a need for clearer leadership in the youth justice sector and for better support and resourcing for CYFS and Police Youth Aid Professionals. A need for better inter-agency co-ordination between CYFS, Police Youth Aid, Health, Education, and Courts was identified. The report found particularly high rates of offending by Maori people, with Pacific Island young people being over-represented in offences involving violence. A lack of detailed statistical information was noted to inhibit planning.
1 Focus on Serious Young Offenders
However, compared to previous reports the Youth Offending Strategy explicitly identified serious youth offending as a key policy issue, noting that high risk young offenders should be the focus of efforts in the youth justice system. The Taskforce identified a group comprising of less than 5% of the total youth population who commit a significant amount of youth crime. The Taskforce found that while these youth offenders require the most sophisticated and intensive interventions, the funding, resourcing, and range of youth offending programmes available were inadequate, with notable gaps in service delivery for Maori and female offenders.
Current initiatives include a range of rehabilitative community-based programmes that can be attached to Youth Court orders or part of a FGC plan. For example, CYFS has introduced a Youth Services Strategy and there are currently 75 beds in Youth Justice Residences. The Youth Offending Strategy outlined two proposed additions to 'fill the gaps' in these existing programmes, namely YF8 and Day Reporting Centres. YF8 is a programme initiated by Youth Court Judge Carolyn Henwood and is based on a therapeutic model, targeting high risk offenders with the ultimate goal of reintegration to the community. Day Reporting Centres is a community-based service of CYFS and the Department of Corrections and is based on a Multisystemic Therapy (MST) model,[85] for high-risk offenders between 14 and 19 on supervision orders. While four centres were proposed in the Youth Offending Strategy, two centres were funded for a three year pilot period from June 2003. It is based on the consent of the young person, but if this is withdrawn the Social Worker can continue work with the family.
Several legislative amendments were also proposed which may promote a tougher approach towards young offenders. Recommendations include simplifying the process for waiving FGCs and extending the circumstanced in which FGCs can be waived, and making the Act consistent with proposed changes to reparation in the Sentencing and Parole Reform Bill. This suggestion has been carried out through the passage of the Parole Act 2002 and the Sentencing Act 2002. On the one hand, amendments under the Sentencing Act grant the Youth Court further powers to deal with serious youth offenders, allowing for the first time the Youth Court to order that the young person be remanded in a penal institution before appearing in the High or District Court for sentencing. On the other hand, this power under is tightly circumscribed; the young person must be over fifteen years, charged with an indictable offence, the period of remand must not be likely to exceed two months, the chief executive of CYFS must furnish the court with a certificate setting out reasons why the alternative of placing the young person in its care would prejudice its ability to detain others and the Court must be satisfied that the order is an appropriate one.[86] This strict criteria means that very few young people qualify. This new order is totally due to a lack of viable secure care options rather than being attributable to a more punitive trend and has a sunset clause. Also, although the Sentencing Act 2002 was a response to a 1999 referendum revealing a public demand for harsher penalties for violent offenders, it makes specific provision for outcomes of restorative justice processes to be taken into account at adjournment of sentence. Also s 18 of the Sentencing Act 2002 prevents any court from imposing a sentence of imprisonment for an offence other than a purely indictable offence if the offender was under 17 when he or she committed the offence. This is a liberal, not punitive measure.
Three amendments targeted at strengthening current youth justice practice were also proposed. The extent to which these principles are compatible with the original youth justice principles will depend on the way they are implemented. These are that the principles of the Act be amended to acknowledge:
- the central role of the victim and victim reparation;
- the principle of 'reducing the likelihood of reoffending'; and
- the principle of early intervention.
The first principle aims to emphasise the role that victims play in the youth justice system which could be seen as part of a growing trend to emphasise victims' needs.[87] It also makes explicit the restorative justice practice of the Act. The second principle emphasises that young people should not only be held accountable for their behavior but that interventions with young people should be aimed to reduce the risk of re-offending. This principle makes explicit what was already implicit under s 4(f)(ii) of the Act. The third principle was suggested by CYFS, which argued that the 'crisis prevention' focus of the current Act should be replaced by a strategy of Early Help, which would enable the department to intervene "before children offend or are harmed, or - where offending or harm have occurred - to contribute to reducing further offending and harm in the future," while acknowledging that any policy shift from crisis intervention to early help would be resource dependent.[88]
Footnotes
56 A Morris and GM Maxwell, Family, Victims and Culture: Youth Justice in New Zealand (Institute of Criminology, Victoria University of Wellington, 1993).
59 FWM McElrea "The Intent of the CYPF Act 1989 - Restorative Justice?" (Paper presented at Youth Justice Conference of the New Zealand Youth Court Association, Auckland, 1994) 2.
60 R v Irwin [1992] 3 NZLR 119.
62 K Mason Review of the Children, Young Persons, and Their Families Act 1989 (Department of Social Welfare, Wellington, 1992) 146.
70 Hon J B Robertson "Rights and Responsibilities in the Criminal Justice System" (1992) 7 Otago LR 4, 502, 515.
71 The Bill was passed and took effect from 8 January 1995.
72 Hon J Shipley "Children, Young Persons, and Their Families Act Amended" (Media Release, 1993) 1.
74 Hon J Shipley "Children, Young Persons, and Their Families Act Amended" (Media Release, Additional Information, 1993) 7.
76 Hon J Shipley The Government's Response to the Report of the Ministerial Review Team (Department of Social Welfare, Wellington, 1992) 11.
77 Child, Youth and Family The Overview: Post Election Briefing Papers 1999 (Department of Child, Youth and Family Services, Wellington, 1999) 4.
78 M Brown Care and Protection is about Adult Behaviour (Ministerial Review of the Department, of Child, Youth and Family Services, Wellington, 2000).
80 59 Parl Deb 20/07/ 99, 10799.
81 "Woeful under-funding" Otago Daily Times (2 February 1994).
82 "Urgent CYF case took 621 days to investigate" Sunday Star Times (April 27 2003).
83 FWM McElrea "Accountability in the Community: Taking Responsibility for Offending" (Re-thinking Criminal Justice: a Conference on New Initiatives in Criminal Justice, Auckland, 12-13 May 1995) 14.
85 A multidisciplinary approach to juvenile offending. MST website <http://www.mstservices.com/text/treatment.html#glance> (at 22 August 2003).
87 See, for example, A Lee and W Searle Victims' Needs: An Issues Paper (Department of Justice Policy and Research Division, Wellington, 1993) and the Victims' Rights Act 2002.
88 J Brown Strategic Issues: Post Election Briefing 1999 (Department of Child, Youth and Family Services 1999), foreword.
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