1. Introduction
1. Juvenile delinquency is not a new phenomenon. The
vast majority of Council of Europe member states have been faced
with this problem for decades (even if reading the press sometimes
tends to suggest the contrary). However, they have developed different
ways of dealing with the problem, based on different theoretical
and practical approaches.
2. To begin with, it is worth mentioning here that despite the
high stakes, there is little quantitative and qualitative research
monitoring juvenile offenders and the consequences of their imprisonment
as regards possible reoffending. Moreover, the information available
to date in the 47 member states of the Council of Europe is not
sufficiently homogeneous. It is difficult to assert the superiority
of one model over another on a general level. However, a number
of elements can be taken into account which deserve the attention
of the Parliamentary Assembly.
3. If we take the case of France, imprisonment represents one
third of the sentences for those aged between 13 and 16 and about
40% for those aged between 16 and 18. The “criminal response rate”
in case of recidivism has at the same time increased from 67.9%
in 2000 to 83.6% in 2007 (91.5% for minors).
4. Moreover, as far as the risk of reoffending as a follow-up
to the deprivation of liberty is concerned, research carried out
in the Netherlands in 2005
on
the relationship between reoffending and personality, post release
environmental risk and protective factors, has highlighted the number
of young offenders who reoffended after their release from the De
Hunnerberg juvenile detention centre.
Four
studies were conducted of respondents’ reoffending rates. In the
study on personality and juvenile criminal offending and reoffending, it
emerged that 61 of the 95 former prisoners (64%) had been arrested
at one time or another after leaving De Hunnerberg. This figure
was obtained from the criminal records statistics. In a more detailed
study of the environmental risks following release and the factors
likely to militate against juvenile reoffending, 75% of the respondents
reported one or more criminal acts after their release. Both the
official and the self-reported rates of reoffending in this study
are high. The most likely explanation for the discrepancy between
the official and self-reported figures is that a considerable number
of offences remain undetected.
5. In the same line of thought,
according to Milton
L. Barron, “punishment is especially likely to be followed by recidivism,
possibly because punishment does not reform and because it results
in social ostracism of the punished.
The
younger the child is at the time of his or her first adjudication
as a delinquent, the greater is the likelihood that there will be
recidivism”.
6. It is therefore clear that attention must be paid to preventing
first offences, as well as reoffending. The two go together; offering
a response to offending today is a means of preventing it in the
future. What are needed are alternatives to prison, with an emphasis
on establishments with an educational purpose.
The European Forum
for Urban Safety invites local elected representatives to recognise
publicly that prisons and detention should be one of the last resorts
for young people in conflict with the law. Preference must be given to
alternative approaches, such as special education centres and open
detention facilities, whose aim is social reintegration and which
focus on the individual and his or her particular circumstances,
while taking into account the interests of the victim. Consideration
should be given to alternative, community-oriented, sanctions.
7. The overarching goal of all policies addressing juvenile delinquency
must be to teach children and young people how to live a fulfilling
life in society – without committing any crimes. The juvenile justice
system comes into contact with children and young people only after
they have already committed a crime (or are suspected of having
committed one), while the welfare system can come into play both
before and after a crime has been committed. The juvenile justice
system tries to ensure respect for the societal norms as codified
by criminal law. In contrast to the justice system for adults, punishment
(and atonement through punishment) is less central to the juvenile
justice system, which has at its heart the avoidance of future delinquency
through education. This is where the welfare system touches the
justice system: it also tries to avoid delinquency through education.
However, its contribution can often be delivered in a more “positive”
spirit, because it can be construed as an aid to help children and
young people realise their right to be educated and to grow up to become
independent personalities who are nevertheless integrated into society.
8. Crime by young people can blight communities and make everyone
feel unsafe. It is thus important for every country to find the
most appropriate response. At the Council of Europe level, harmonisation
of the juvenile justice systems has gone further than that of the
welfare systems for children and young people. In 2008, the Committee
of Ministers adopted the European Rules for juvenile offenders subject
to sanctions or measures (Recommendation CM/Rec(2008)11) which posit
both the basic principles – that all sanctions and measures that
may be imposed on juveniles, as well as their implementation, shall
be based on the principles of social integration and education and
on the prevention of reoffending – and put into place a clear legal framework
governing community sanctions and measures as well as the deprivation
of liberty. The rapporteur believes this recommendation is very
complete; it remains only for it to be implemented. This is why
this report concentrates on the contribution of child and youth
welfare services, namely on social measures for, and education and
rehabilitation of young offenders – a subject which the rapporteur
fears has so far been rather neglected.
9. Nevertheless, a key issue remains regarding the extent to
which the welfare and best interests of the child/young person,
as a developing, learning human being, and still open to positive
socialising influences, are incorporated in youth justice systems.
10. Against this background, the Council of Europe Commissioner
for Human Rights recently stated that “there is a disturbing trend
in Europe today to lock up more children at an earlier age. The
age of criminal responsibility is already very low in some countries,
such as the United Kingdom”, whilst also recognising that “it is
imperative that young persons are taught to take responsibility
for their actions”. The Commissioner at the same time emphasised
that “Young offenders are children first and foremost and should
be protected by all the agreed human rights standards for children”.
11. In this report,
the
rapporteur would like to address all these interlinked issues. On
12 December 2008 in Paris, the Social, Health and Family Affairs
Committee organised a hearing with the participation of representatives
of different NGOs and research institutes.
On
11 June 2009, the rapporteur also visited the Rochester Institute
for Young Offenders in Kent (United Kingdom) to nourish her reflections
on this issue, which she first presented to the committee in November
2009.
12. There is evidence that the best crime prevention policy is
social policy, and that the most effective social policy is one
which reaches down from the national to the local level.
2. Social exclusion, child poverty and
child well-being in Europe
13. A growing number of young people in Europe lack the
means to participate fully in economic, social, cultural and political
life or are prevented from doing so by economic disadvantage, lack
of skills and knowledge, discrimination or personal attitudes.
14. Young offenders often come from amongst the most disadvantaged
groups in society and have complex needs. Many have histories of
educational disadvantage and/or disaffection, substance misuse,
mental health problems,
and
disrupted and/or abusive family backgrounds. Systematic processes
of social exclusion in terms of lack of formal education and training
and ensuing low earning capacity often create barriers, preventing
young people from entering the legal economy – a phenomenon exacerbated
by the current economic and debt crisis. Many young people depend
upon state benefits, such as unemployment benefits, and find it
increasingly difficult to gain access to jobs that allow them greater
legitimate integration into the social and economic fabric of society.
Youth unemployment rates increased by 4.6 percentage points in the developed
economies and the European Union between 2008 and 2009 and by 3.5
points in central and eastern Europe (non-European Union) and the
Commonwealth of Independent States (CIS).
These structural
issues cannot be divorced from the personal effects of such changes
on people.
15. Poverty in childhood has been identified as a key predictor
of economic and educational disadvantage and poor levels of achievement
and well-being later in life. In 2005, 22% of children in the United
Kingdom lived in relative poverty (defined as 60% of the national
median income); in Sweden this was 8%, and in Denmark 10%. Such
exclusion from transition processes towards social and economic
bonds means that young people are less likely to engage and commit
to the other values of inclusion and acceptable social norms.
16. The rapporteur notes that the overlapping nature of the drivers
of social exclusion for offending and educational disadvantage is
borne out in statistics. For example, in the United Kingdom, nearly
half of young people in custody in the criminal justice system have
previously been in the public care system and have literacy and
numeracy skills inferior to the norm for an 11-year-old. Reoffending
rates within a year of leaving custody increase for those who are
homeless.
17. Sociological theories such as labelling are important in policy
considerations in terms of how such labelling can negatively affect
agencies’ and professionals’ responses to individual young people
due to the geographical area the young person lives in, his or her
ethnicity, previous offending, and mental health problems. The mix
of such labelling factors and structural and economic disadvantage
and discrimination within jobs, housing, educational opportunities,
and treatment by the youth justice system and staff towards young people
can lead to further exclusion and offending.
18. In the rapporteur’s opinion, these are important areas to
address in policies, provision and also training and monitoring
of educational and social agencies. Whilst sociological theories
such as labelling may be important in understanding why such problems
may occur, they do not provide concrete ideas of how to understand
the way young people personally experience their situation, or how
to deal with them; these are the areas this report would like to
address. It is necessary to consider young people’s individual feelings
and deal with them on a personal intervention level, including motivation
to socially acceptable income generation, attitudes towards others
and feelings of social responsibility, mental health needs, experience
of abuse, and experiences of being bullied and of bullying.
19. Welfare, school and community-based programmes can help young
people desist from all forms of criminal and antisocial behaviour,
including violence, bullying, theft, gang-related crime and intimidation,
race hate crime and potentially, at the extreme end, terrorism.
20. A major study by UNICEF (2007) assessed the well-being of
young people in 21 of the world’s most economically advanced nations
according to six criteria: family and peer relationships, education,
health and safety, material well-being, behaviour and risks, and
subjective well-being. It concluded that a country’s wealth is not
an indicator of child well-being (a finding also from the statistics
presented by the OECD in 2009
), with the
Netherlands, Sweden, Denmark, Finland, Spain, Switzerland and Norway
ranked highest, with France 16th and the United Kingdom at the bottom
of the overall well-being league table. As far as material well-being
is concerned, the UNICEF study also found that in comparing the
percentages of children that lived in households with the equivalent
of less than 50% of national median income (relative child income
poverty), in all the Scandinavian countries this was less than 4%,
in Belgium and France 7%, in the Netherlands 9%, and in Ireland,
Italy and the United Kingdom 16%.
In terms
of material well-being, the Scandinavian countries (Sweden, Norway,
Finland and Denmark) ranked highest.
21. The factors of well-being may well have a bearing upon how
young people view themselves, their life opportunities and relationships,
and on disaffection and offending.
22. The rapporteur noted that the countries which have welfare-based
approaches as part of socially cohesive policies are the ones where
young people feel most secure in personal and family relationships
and do not fear for their prospects in terms of their economic and
social future. These countries have the most inclusive and effective
educational systems and the lowest rates of custody.
In
the UNICEF survey, in terms of subjective well-being, the Netherlands,
Spain, Greece, Austria and Ireland came highest, whilst France was ranked
19th, and the United Kingdom 20th. For educational well-being, Belgium
was ranked first, the United Kingdom 17th and France 18th. For educational
achievement, Finland was highest, with France 13th.
23. Scandinavian countries generally have retained a strong welfare
approach to juvenile offending, compared to many in the rest of
Europe, and have not been swayed from this by media and political
pressure. Seven of the 10 top-ranked countries for child well-being
had prison populations of less than 80 per 100 000, including all
the Scandinavian countries. The numbers of juveniles in prison-based
custody is negligible in Scandinavian countries as a percentage
of their youth populations, which is also the case in Belgium, France, Italy
and the Czech Republic.
24. Despite low incarceration rates in recent years, crime rates
have not tended to increase in these countries disproportionately
compared to other countries. Conversely, countries which have increased
their use of custody have not tended to see a decrease in crime
disproportionately compared to other countries. The Netherlands,
Ireland, Scotland, Portugal and England and Wales have high rates
of juvenile incarceration. Of the bottom 10 countries in the UNICEF
report, six have prison populations of over 100 per 100 000. In
England in early 2009, 2 625 children aged under 18 were held in
custodial establishments in England and Wales, one of the highest
rates of juvenile incarceration in Europe, compared to Finland and
Norway’s total of three.
3. Social factors affecting social exclusion, educational
disengagement and youth offending
25. Evidence suggests that the key factors associated
with youth offending are poverty, poor education, poor employment
prospects, poor housing or homelessness, poor physical and mental
health, poor access to financial resources, anti-social behaviour,
drug and alcohol abuse and difficulties in forming and sustaining relationships.
26. The high-risk forms of behaviour pinpointed in sociological
studies of young people, in particular the use of legal and illegal
psychoactive substances such as alcohol, tobacco and cannabis, violence,
both towards oneself and others, dangerous driving, dangerous forms
of sport and high-risk sexual behaviour,
have to be prevented, as the situation
can easily and very rapidly deteriorate. Such high-risk behaviour
is often rooted in a feeling of malaise, hence the importance of
paying heed to children and young people’s well-being, including their
mental health. It is to be noted here that conduct and behavioural
disorders among children and young people also result in significant
costs to the community, and that it would be possible to treat these
disorders more effectively through prevention.
At the same
time, the Committee of Ministers Recommendation Rec(2004)10 concerning
the protection of the human rights and dignity of persons with mental
disorder invites member states to make all necessary provisions.
27. High-risk behaviour also represents a quest for autonomy and
independence.
Acquiring independence, indeed, presupposes
risk taking. This takes place at the boundaries between the known
and the unknown, the allowed and the forbidden, the legal and the
illegal. Such behaviour, which frequently conflicts with accepted
standards and breaks the rules, enables those concerned to go one
step further and thus appreciate the real meaning of social and
individual conduct. This flirting with risk represents a desire
to control one’s environment, but also one’s own behaviour, and
is thus seen by the young person concerned as a crucial step towards
greater autonomy.
The rapporteur
therefore wishes to emphasise the importance of the earliest possible
positive intervention to prevent risks and enable young people to
use other means of establishing their identity and for their development,
without harm to their well-being. In the absence of such intervention,
the risk of problems such as offending rises rapidly.
28. Peer pressure is key to many young people’s engagement with
disaffection at school and in offending.
In the UNICEF survey, in the category of
“peer relationships being kind and helpful”, Switzerland ranked highest,
France 18th, the Czech Republic 19th, and the United Kingdom 21st.
For family and peer support, Italy was first, France 12th, Finland
17th, with the United Kingdom bottom, demonstrating the importance
of positive influences from such groups in societies which do not
make use of punitive policies.
29. As regards young people who declared having been drunk twice
or more, France was ranked as having the lowest percentage and the
United Kingdom the highest percentage, with Scandinavian countries
ranked also quite low. For those aged between 15 and 19 not in education,
employment or training, France had the highest percentage at 21st,
Finland was 18th, and Norway, Denmark, Poland and Sweden had the
lowest percentage. For the percentage of those in relative income
poverty, Scandinavian countries ranked lowest, with France ranked
eighth. As regards those experiencing fighting and/or bullying,
young people in Finland, Sweden and Germany were least at risk,
while France had the highest percentage reporting this.
30. The rapporteur notes that marginalisation is a risk factor.
Recent studies
have
shown that group membership as such does not equate with delinquency.
When a young person joins a group of delinquents, rather than a
traditional group, this is often largely a result of his or her
own functioning within other conventional social systems, such as
school. Where the young person concerned is marginalised, he or
she will tend to seek the company of other young people on the margins
of society, where alcohol or drug consumption is encouraged and
misbehaving is regarded as normal.
31. In neighbourhoods/communities with high levels of deprivation,
illegal income sources such as drug dealing and selling stolen mobile
telephones, often supplement or replace legitimate ones. One of
the major reasons cited by young people who join gangs is that they
see gangs as alternative reference groups, and see no life outside
the gang. The gang provides social recognition and status which
other areas of their lives, such as schooling, legitimate income,
job status or relationships, do not.
32. Parenting is another key area of risk, if one is dealing with
parents who are criminals, parents with mental health problems,
parents who are too strict or too lenient or inconsistent or parents
who are antagonistic to or disinterested in their child’s education.
For example, it has been determined that the impact of father absence on
delinquency could be stronger than that of mother absence among
both boys and girls.
33. The rapporteur notes that risk factors are clustered together
in the lives of the most disadvantaged children. The chances of
such young people becoming antisocial and criminally active increase
exponentially as the number of risk factors for the young person
increases.
34. Lack of adequately funded youth services has been pinpointed
as contributing to the disenfranchisement of some young people,
including specifically ethnic minority or faith groups. The rapporteur
is convinced that provision of specialist enhanced educational schemes,
and mentoring for parents and young people from credible role models
from within their own communities can be important in avoiding such
disaffection. This also applies to community-based groups which
are set up to challenge and engage young people in activities which
they see as relevant to their culture and ambitions.
35. At the same time, it is important to emphasise that some young
people need to emancipate themselves from traditional role models,
in particular in ethnic minority or faith groups. This is particularly
true for girls, who are often traditionally assigned a passive and
submissive, “victim” role, but also for boys, who may be pushed into
“macho” roles, where they have to prove themselves “strong”, aggressive,
or even violently “protective”. Both girls and boys should be encouraged
to develop their individual personalities instead.
36. On a personal level, poor self-image can be a risk factor
(including the risk of being recruited into gangs), as are mental
health problems. In addition to the other strategies used to combat
exclusion, the rapporteur stresses the need to involve assessment
and liaison with specialist social work and mental health services. Drug
and alcohol abuse risks again require careful assessment and a range
of clinical and community-based provisions for assessment, with
close liaison between schools, social work agencies and local drug
and alcohol agencies.
37. The rapporteur firmly believes that the wide variety of risk
factors related to low educational attainment, disaffection and
offending means that preventing crime requires the active involvement
of agencies outside the justice system, including education and
health services.
38. Strategies aimed at combating educational disaffection and
financial disadvantage include identifying the problems with educational
engagement and attendance amongst groups and individuals, by working
with schools and specialist educational units, employing educational
psychologists, social workers, and adult and peer mentoring schemes
within community programmes. The objective is to encourage participation
in training and employment, in order to improve commitment to and
confidence in education and thus enhance young people’s life chances.
39. Comparisons of the educational backgrounds of young people
caught up in the youth justice system with the general population
show that, on average, young offenders have had difficulties in
engaging and achieving at school. Low attainment, persistent truancy,
exclusion, special educational needs and disabilities such as dyslexia
are some of the most prevalent risk factors associated with offending
behaviour. The correlations between low attainment in education,
offending and reoffending and other forms of anti-social behaviour
are well documented.
Education
potentially has a key preventative role, as lack of statutory education
is one of the key factors associated with reoffending.
40. The wider role of an educative focus of social development,
rather than just academic performance, is recognised in the pedagogical
approaches in some countries. The Scandinavian countries, such as
Sweden, have a high performance educationally, without the high
use of exclusion from schools or other forms of social exclusion
for children (such as a high use of custody), whilst the opposite
is the case in other countries, for example in the United Kingdom,
which has low educational achievement levels and uses exclusion
from school and has a high use of custody.
Germany,
for example, uses “social training” courses which involve regular meetings
with social workers and intensive weekend arrangements with sporting
activities and challenges to engage and provide activities for young
people to foster the development of social skills and appropriate behaviour.
41. Schools often exclude young people who are already socially
excluded by family background factors, economically or by discrimination
due to ethnicity or faith. In many countries, the highest rates
of exclusion from schools are often in minority ethnic or faith
groups, and this requires special attention.
42. The most basic of educational attainments, literacy and numeracy
skills, need to be addressed in schools as part of prevention strategies
to identify and help low achievers in all schools and also in community-based
and custodial programmes for offenders. However important this is,
though, the rapporteur stresses that policies should not just target
young people and their families. They also need to address school
ethos and staff attitudes to young people who are disaffected and
offending, as well as young people who are at risk of low attainment
and disengagement. The reluctance of schools to put in place support
programmes for such young people is a key area to be addressed by
training and guidance to schools.
43. In the rapporteur’s view, it is not possible for one single
agency to identify and deal with young people’s problems which lead
to social exclusion through disengagement with education, training
and youth offending. One major obstacle in developing successful
policies across agencies to co-ordinate and plan to increase social
inclusion across Europe has often been in engaging mainstream schools
in preventive approaches addressing such risk factors and in aiding
social reintegration for those young people who have difficulties
at school and/or are offending.
4. Models of intervention: the theory
44. “Welfare” models, “justice” models, and “restorative
justice and mediation” models are the main ways of responding to
these types of problems. These almost always overlap, to some extent,
with different elements emphasised in different countries.
45. Welfare models of intervention consist of assessment and intervention
strategies deriving to a large extent from psychological, ecological
and systems-based approaches of understanding and treating educationally
disaffected young people and offending by young people. Such models
focus on deficits in families in raising their children and socialising
them, leading to intervention strategies which look at treatment both
within and outside of the family.
46. The welfare-based approach promotes methods and interventions
outside the judicial system, for example by diverting young people
from formal systems, as used extensively in the Scandinavian countries, often
accompanied by family support services. These countries also make
extensive use of psychological and psychiatric interventions, based
on family-focused interventions and supervision in the community
and residential treatments. Such approaches work well for the great
majority of socially excluded young people; however, for a small
minority recruited into race hate and terrorist groups, additional
methods also need to include more targeted programmes, as well as
police work, in conjunction with other agencies.
47. Justice models, in contrast to welfare approaches, state that
young people should be subject to formal judicial (usually court)
processes, where their rights before the law can be maintained.
This approach assumes that punishment is the primary rationale for
the youth justice system, with sentences set out as part of a “tariff” of
increasing severity and punishment-based sentences, dependent on
the seriousness of the offence and the perpetrator’s offending history.
Such countries make high use of custody and punishment- based approaches and
little use of conditional orders (as used in Belgium) and diversion.
However, in very rare circumstances, there is the need to pick up
on the risk factors for very serious offending and the need for
residential, social work, and psychological/psychiatric treatment,
sometimes for long periods into adulthood.
48. Restorative justice and mediation approaches have been put
forward in recent years as ways to move beyond the binary divide
of welfare and justice-based approaches. These approaches concentrate
on the idea of repairing the harm done, allowing the victim to receive
an apology and/or reparation. They encourage and require the offender
to feel some shame and sorrow for what they have done and to learn
to appreciate the effects of their behaviour and attitudes on others.
They have been successfully used for all types of disputes, for
example conflicts between different ethnic and religious groups,
and specifically in the Northern Ireland Belfast Agreement to end
such violence. They have also been used most extensively in the
Scandinavian countries, worked in with their welfare-based models.
49. This model has struggled rather more to make headway in punitive-based
countries, partly because the adversarial approach militates against
offenders admitting to what they have done and the effects of it,
as this could negatively affect the outcome for them in such a system.
50. These approaches have also been used in education settings
to deal with conflict, crime and bullying which affects educational
disengagement and attainment. Whilst this method may be valuable
in the great majority of situations, the risk for the victims, as
well as the need for protection, have to be properly taken into account,
for example in cases of severe bullying.
51. Whilst restorative justice and mediation can be very effective
when perpetrators are genuinely willing to take part, there can
be concerns that some young people can purport to be “buying into”
the process but in reality are not. Victims may fear further intimidation.
This is true also for hate crimes and community conflict.
5. Policy responses: the practice
52. The following is an analysis of current measures
and existing policies and practices to deal with juvenile delinquency.
5.1. Age of criminal responsibility
53. The United Nations Convention on the Rights of the
Child (UNCRC) encourages a minimum age to be set for criminal responsibility,
“below which children shall be presumed not to have the capacity
to infringe the penal law”. The age of criminal responsibility correlates
to a high degree with welfare or retributive regimes. In Scandinavian
countries, it is 15 years, with very restricted use of penalties,
especially custody, for older adolescents. This age varies greatly
across Europe: Scotland 8; Northern Ireland, England and Wales 10; France
13; Spain, Italy and Germany 14; and Luxembourg and Belgium 18.
In addition, Article 37 (b) of the United Nations Convention states
that
:
“States Parties shall ensure that:
No child shall be deprived of his or her liberty unlawfully
or arbitrarily. The arrest, detention or imprisonment of a child
shall be in conformity with the law and shall be used only as a
measure of last resort and for the shortest appropriate period of
time.”
This emphasises, as do many other of its articles, how children
and young people should be dealt with by socially inclusive, rehabilitative
methods rather that punitive ones where at all possible. The Convention
on the Rights of the Child sets out other states’ duties in relation
to encouraging children’s participation in decision making, providing
access to legal representation for children and protecting children
from capital or degrading punishment.
54. The rapporteur firmly believes that the age of criminal
responsibility is a key area for reform as recently noted also by
the Commissioner for Human Rights: “Time has come to move away from
fixing an arbitrary age for criminal responsibility. Governments
should now look for a holistic solution to juvenile offending.”
55. In 2003, the European Network of Ombudspersons for Children
(ENOC) stated that there should be separate systems of justice for
under-18-year-olds. All provisions – residential, psychiatric, prison-based
and community-based – should therefore be separate for under-18-year-olds.
5.2. Custody and community treatment
56. Many young people sent to custody have a history
of a range of disadvantages: poverty; family conflict and abuse;
being looked after by local authorities; drug and alcohol misuse;
mental disorder and distress; ill-health; emotional, physical and
sexual abuse; self harm and suicide attempts; homelessness; isolation; educational,
skills, training and unemployment disadvantage – all areas associated
also with education disengagement and poor attainment. All these
areas have to be examined at an early stage for families and young
people in order to combat social exclusion and reduce criminality
amongst young people.
57. The rapporteur believes that custody and punitive-based measures
as found in a number of European countries can only very rarely,
if ever, achieve this. With few commendable exceptions, such as
the Kent institute which the rapporteur visited in June 2009, prison-based
custody almost always excludes young people from education and job
prospects. In their peer groups, it leads to expectations (labelling)
by peers, professionals and families on them to be criminal and
antisocial, leading to further social exclusion from positive peer
groups and family support. As stated in the United Nations guidelines
for the prevention of juvenile delinquency “labelling a young person
as ‘deviant’, ‘delinquent’ or ‘pre-delinquent’ often contributes
to the development of a consistent pattern of undesirable behaviour”.
58. Young people in custody need special measures to deal with
their vulnerability, including issues of abuse, race hate and bullying.
These factors contribute to murders and suicides of young people
and exacerbate drug and mental health problems.
59. The rapporteur is of the opinion that prison-based institutions
have failed to deal with educational disadvantage and social inclusion,
as smaller custodial residential institutions based upon welfare
and treatment models, like those that exist in Scandinavian countries,
can do.
60. The extensive and serious criticisms of the welfare of young
people in prison show that such custody can be argued to be contrary
to young people’s human rights under Article 3 of the European Convention
on Human Rights, which provides that no one shall be subject to
inhuman or degrading treatment. The bullying, intimidation and high
number of incidents of self-harm and suicide can also be argued
to contravene several articles of the United Nation Convention on
the Rights of the Child, including: Article 3, “it shall be the
duty of governments to consider the best interests of a child”;
Article 19, “the right of children to protection from all forms
of violence, abuse and neglect”; and Article 24, which provides
for the highest attainable standards of health for children and
young people, which also includes mental health and emotional health.
61. For these reasons, the rapporteur argues that custody should
not be the chosen policy for young offenders. It should be used
only where the crime is extremely serious and the young person represents
a danger to others. There should be guidance on when, and at what
severity of offending, it is acceptable for young people to be contained
for the safety of others, as is the case in Norway, Denmark and
Finland. Where custody is required, this should be in small units,
with psychiatric, psychological and social work input, and near to
the young person’s family and community. A particular feature of
these services should be mental health services in secure units,
due to the high levels of abuse and suicide.
62. These are also important factors in resettling young people
in their families and communities in post-release and aftercare
work. In many countries, the cut off is a sharp one and the model
of flexible jurisdictions developed in Germany has a good deal to
commend it. However, there can be a marked reluctance on the part of
social agencies (whether schools, colleges, clinics or residential
facilities) to take on people who have been in prison and this requires
attention from local multi-agency groups.
5.3. Targeted programmes
63. Early intervention programmes can be effective in
reducing the risk of youth offending if targeted at high-risk children
and young people in recognised geographical areas of poverty and
disadvantage, at the appropriate stage, and if they take into account
the specific needs of different economic, ethnic, faith and cultural
groups. Whilst being integrated into a comprehensive prevention
package, these programmes should include issues of family, community
and personal and individual factors. They should be support- based
and not label families as criminogenic.
64. Effective multi-agency groupings and policies at national
and local levels are key to dealing with these multi-factorial issues.
Welfare and education services need to be co-ordinated, at primary,
secondary and tertiary levels, to prevent initial or further exclusion
within schools. They include enhanced schooling, with an emphasis
on education and training in custody and post-release programmes.
65. Low attainment of young people is partly due to family factors.
Strategies to involve and engage parents in the aims of the school
and in encouraging and supporting their children in their education
remain critical. Poor engagement with schools by young people is
correlated with weak parental supervision and poor attachment to
parents and siblings. These areas are to be considered for parenting
programmes in groups or by individual professionals and mentors
to support parents.
5.4. Ethnicity/faith-based and hate crime
66. The effects of systematic disadvantage based on ethnic
or faith-based groups are frequently present in and beyond education
and employment and into the criminal justice system. Structural
inequalities in relation to “race” have contributed to the tendency
for certain ethnic minority groups, particularly their male members, to
be under-represented in training schemes and higher education and
over-represented at all stages of the criminal justice system, and
especially in prisons.
67. According to the 2008 British Crime Survey, the profile of
hate crime has an intra-neighbourhood element in that most hate
perpetrators and victims live in the same neighbourhood. These factors
point to the need for better training for all professionals and
monitoring of these effects, as well as institutional and geographically
based community responses.
5.5. Diversion
68. Diversion can be a very effective way of dealing
with minor offending and, in appropriate circumstances, more serious
offending. Measures can include enhanced support for education and
training, counselling on job and career opportunities and the need
to have attitudes which will keep them in employment, including mentoring
on attitudes and personal approaches to others. Diversion is a key
feature of the Scandinavian countries’ responses, at prosecutor
and court levels. In Belgium, there is also pre-trial probation,
that is to say another form of diversion. In retributive and justice-based
systems such as the United Kingdom, the use of diversion pre-court
and in court sentences has, through policy and legal changes, diminished
in the last twenty years.
69. In the United Kingdom, an example of a different type of diversion
is the so-called “referral order”, which is made for nearly all
young people at their first appearance in the Youth Court. Panels
consisting of community members and a professional from the local
multi-agency “Youth Offending Team” meet with the young person, their
parents and others (for example victims) to discuss the situation
which led up to the offence and the factors which may have impacted
on the young person’s delinquent behaviour.
70. These include issues of family conflict, conflict with others,
issues in education or work/training, accommodation, drug use and
mental health problems. They then set work to be undertaken, which
includes reparation, apology and treatment on the risk areas identified
in the order, with further meetings to review the young person’s
progress. If the young person completes the order successfully,
he or she has no offence recorded against them. Italy also has a
system where many young people have pre-trial programmes, where they
will not have a criminal offence recorded against them if they successfully
complete the programme.
5.6. Participation
71. Young people engaged in criminal activity are “experts
by experience” and research illuminating their first-hand experience
is fruitful in gaining knowledge to tackle the antecedents of crime
and formulating more meaningful and effective policy responses.
Research should raise awareness of what impacts on young people’s
lives in disadvantaged, high-risk communities and young people from
ethnic minority groups and disaffected groups, to feed into knowledge
about the problems and solutions in local areas.
72. Another key area of participation can also be by way of young
people’s involvement in young people’s panels in local areas, to
gain their views on their situation and possible solutions to their
perceived problems. At a more general level, in some countries there
are “school councils” that foster young people’s involvement and
contribute to their integration while instilling in them a sense
of responsibility. However, there does not seem to be any particular
effort to involve disaffected young people.
5.7. Ethnically sensitive work with socially excluded
young people/offenders
73. Children and young people from certain ethnic minority
and faith communities continue in many countries to be disproportionately
overrepresented throughout the youth justice system. In the police
and prison systems in the United Kingdom, official reports have
determined that there are forms of discrimination which act against
the rights and interests of young Black and Minority Ethnic (BME)
groups. This can be seen or detected in processes, attitudes and
behaviour which amount to discrimination through unwitting prejudice, ignorance,
thoughtlessness and racist stereotyping which disadvantage minority
ethnic people.
74. The rapporteur believes that this will almost certainly be
the case in many other European countries to some extent or another.
Training and monitoring of agency and staff approaches in the relevant
agencies – police, judiciary, custody staff, school staff, social
work staff – is important to ensure greater compliance with the
Convention on the Rights of the Child and Council of Europe requirements.
5.8. Geographical and demographic issues
75. Evidence is increasingly showing high concentrations
of young and adult offenders in localised geographical areas who
are known to the criminal justice system and who are disaffected
from education, training and work. This suggests the need for detailed
mapping work on demographics, educational attainment and crime rates
and then the exploration of alternative ways of deploying resources
and offering family and youth support services and activities in
those areas.
76. Enhanced schooling related sometimes to ethnic/faith groups
and sometimes to help to overcome family antagonism or disinterest
in education and aggressive/criminal behaviour, can be valuable.
It is therefore important to examine the overlaps and commonalities
between social groupings within geographical areas that are socially
excluded in order to facilitate effective multi-agency intervention
across a range of policy areas. At the same time, as mentioned above,
it is important to help young people emancipate themselves from traditional
role models and expectations (in particular those linked to gender)
which can be imposed by families, clans and ethnic/faith groups.
Educational activities outside school, which are diverse and open
to all, can be personality enhancing and contribute to the development
of positive group dynamics.
77. According to the rapporteur, providing high quality youth
services (clubs, activities, enhanced schooling, restorative justice/mediation
services, training and work opportunities) is a fundamental requirement
for addressing social cohesion. Alongside this primary-based approach,
services at the secondary level can be targeted at those children
and their families who come to the attention of the authorities
– potentially for all families in identified areas – where there
are high indices of disadvantage, such as poor housing, low incomes, poor
job opportunities, interpersonal and inter-ethnic conflict, and
high crime rates.
78. Local multi-agency groups can identify such areas and groups
of young people for interventions and formulate and review action
plans for community and restorative programmes and also formulate
action plans for young people who are clearly exhibiting offending
and disaffected behaviours. For example, one programme in England
has used a system to provide professional and mentoring services,
by inviting families and young people to partake in a support programme
if they became known to the triumvirate of social services, school,
and police agencies. Wider use of functional family support programmes
is also found in Sweden and in anti-bullying programmes in Norway.
79. Ideally, these programmes should be presented positively,
as fostering safe and healthy communities by strengthening protective
factors, rather than as a negatively framed labelling process. This
is in accordance with the United Nations guidelines for the prevention
of juvenile delinquency, which say that “formal agencies of social
control should only be utilised as a means of last resort”. Consequently,
approaches to prevent criminality, particularly in young people,
necessitate a broader approach focusing on prime influences – family, school
and community, linking social and economic opportunities and ensuring
the empowerment and renewed social capital of young people themselves.
5.9. Restorative justice and mediation
80. A key feature of social exclusion is not just economic
and educational/training and job opportunities and difficulties,
but also relationships. Restorative justice and mediation are increasingly
being examined by different nations in order to develop new ways
of making links between the welfare approaches which focus on the
needs, development and well-being of the young offender/disaffected
young person, as well as their commitment to understanding their
responsibilities for their behaviour, both criminal and antisocial,
on others. Such approaches include restorative justice and mediation
at all levels from young people in schools through to communities
where there are tensions between groups (ethnic/religious or otherwise).
81. The Committee of Ministers adopted recommendations for the
development of mediation in penal matters in 1999. Finland and other
Scandinavian countries use these methods extensively at all stages
of the process.
82. Making reparation to the victim directly or indirectly by
work on community projects is an important part of restorative justice,
as is making a genuine apology to the victim, preferably face-to
face. The benefits of restorative justice have been shown to be
improved sense of responsibility and guilt, a feeling that the young people
and the victims were part of the process, an understanding that
actions have consequences, improved skills for managing conflict;
greater empathy towards others, increased mutual respect, and an
improved feeling of community. Another form of restorative justice/mediation,
the so-called “family group conferencing”, has also been shown to
be able to reduce rates of reoffending.
83. One of the criticisms of restorative justice/mediation relates
to the fact that legal representation is not present. A counter
argument to this concerns the fact that if solicitors/advocates
take part in these processes, the young person can have the solicitor/advocate
argue their case for them and the young person does not have to
engage personally with his or her responsibilities for any offences
or harm caused. Any system of welfare-based or restorative approaches
must take into account the requirements of the United Nations Convention
on the Rights of the Child and the European Convention on Human
Rights, in particular in terms of proportionality and avoidance
of degrading treatment.
6. Conclusions
84. The rapporteur took note of the many good examples
of initiatives around Europe. Evidence strongly suggests that welfare-based
responses lead to greater social inclusion, greater participation
and achieving greater commitment to education and socially acceptable
behaviour. They should tackle different levels of social exclusion,
offending and disaffection and incorporate mechanisms to ensure
children’s best interests and to protect their rights.
85. Economic recovery and greater social justice are essential
to prevent delinquency, but must not be regarded as the answer to
all the problems, since it is also necessary to establish a family
policy, a social policy, an integration policy and a citizenship
policy in tune with the lives and the needs of today’s young people.
86. National legal and policy provisions should see socially excluded
young people and young offenders as children first, offenders and/or
antisocial individuals second. Retribution and punishment, viewing
young people as being responsible for their actions, to be controlled
and punished for transgressions which are criminal, is, in my opinion,
not only secondary, but the wrong approach. It is important to find
the right balance between protecting the community – and other young
people – from crime, while making the best possible use of the fact
that a child/young person is a developing, learning human being
and is still open to positive socialising influences. Welfare services
and juvenile justice systems can and must work together, hand-in-hand,
in order to educate children and young people with a view to them
growing up to become independent personalities who are nevertheless
integrated into society, and thus accept society’s norms (which
includes avoiding criminal and anti-social behaviour).
87. Inter-agency and multi-professional working is a key prerequisite
to the prevention and rehabilitation of educationally disaffected
young people and young offenders. Locally organised, multi-professional,
multi-agency teams should include senior management representatives
from schools, children’s social care services, police, probation,
health, mental health agencies, drug and alcohol agencies and youth
work agencies. They would also benefit from career-focused agencies,
which provide education, training, careers and work advice and support,
to identify risks and action plans for excluded groups, communities
and individual young people.
88. In the last two decades, different states within Europe, like
the United Kingdom and the Netherlands, have developed policies
and plans based less on prevention of youth offending and addressing
the welfare needs of young offenders, and more on retribution and
behaviour-focused programmes. The rapporteur believes that this
is in contrast to the evidence of cost-effective welfare and community-based
measures.
89. The Parliamentary Assembly should thus recommend that member
states develop further their child and youth welfare services to
prevent offending (and reoffending) in the first place, concentrating
on social measures, education and rehabilitation of young offenders.
Member states should also be encouraged to fully implement the European
Rules for juvenile offenders subject to sanctions or measures (Recommendation
CM/Rec(2008)11), which puts the emphasis on community sanctions
and measures while safeguarding children and young people’s rights
in all settings (from court proceedings to the deprivation of liberty).