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The End of an Era? – Youth Justice in Scotland

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Abstract

Scotland is a small jurisdiction, yet it has a distinctive criminal justice system with unique institutional arrangements and certain political and legislative structures, which render it academically and politically interesting. Unlike other jurisdictions which have adopted neo-liberal policies, Scotland remains committed to a welfare state ethos that is expressed in the continuing commitment to social work with offenders and the welfarism of its youth justice system. The Scottish youth justice system is based on a core set of welfarist principles which stem from the work of the Kilbrandon Committee which reported in 1964. A key strength of the Scottish system is that it has thus far managed to avoid the more punitive and incarcerative aspects of other jurisdictions (most notably England and Wales), yet some recent policy and legislative developments that have impacted on the management of young offenders and the delivery of justice can be seen to pose serious challenges to the core Kilbrandon ethos.

Keywords

  • Antisocial Behaviour
  • Restorative Justice
  • Criminal Responsibility
  • Criminal Procedure
  • Young Offender

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Figure 18.1.

Notes

  1. 1.

    Devolution was legislated for in 1998, elections for MPs were held in May 1999, and the Scottish Parliament assumed its full powers in July 1999.

  2. 2.

    Lord Kilbrandon was a senior Scottish judge.

  3. 3.

    Established by the Social Work (Scotland) Act 1968 and implemented in full in April 1971.

  4. 4.

    The risk principle was first introduced in 1983 by the Health and Health Services and Social Security Adjudication Act, which enabled the system to require a child to reside in secure accommodation where the child was likely to injure others.

  5. 5.

    Although the Hearings System can, in principle, deal with young people up to the age of 18, in practice, it tends to deal with those up to the age of 16, and the police tend to refer most offenders aged over 16 to the Procurator Fiscal (the public prosecutor in Scotland). In effect, then, the transition to court takes place at 16 years, although there is an option for Sheriffs to remit those up to 17 and a half years back to the Panel for advice and/or disposal.

  6. 6.

    Panel members (aged 18–60 years) are recruited from the public, undergo selection and training processes, and are appointed by the Secretary of State for Scotland.

  7. 7.

    Section 41 of the Criminal Procedure (Scotland) Act 1995.

  8. 8.

    Section 42(1) of the Criminal Procedure (Scotland) Act 1995.

  9. 9.

    Persistent offenders in the Fast Track pilot are defined as those individuals who have been referred for five or more offences in any 6-month period.

  10. 10.

    Antisocial behaviour is widely defined as anything that ‘causes or is likely to cause alarm or distress’ s. 143 Antisocial Behaviour (Scotland) Act 2004.

  11. 11.

    An new order requiring anyone aged 12 and over to work 10 and 100 hours for the community that has been damaged. This innovation is to be tested in three Scottish cities from January 2005.

  12. 12.

    The ‘RLO’ involves the electronic tagging of children to enforce an order restricting them to a specific place for up to 12 hours a day. This has been introduced in phases from April 2005.

  13. 13.

    After public consultation, s. 70 of the Children (Scotland) Act 1995 was amended to allow for the alternative disposal of ISMS by Children's Hearings.

  14. 14.

    The Scottish Executive anticipate that only a small proportion of ‘persistent offenders’ will be viewed as suitable for an ISMS. There are around 800 persistent offenders reported to the Reporter each year (Scottish Executive, 2004a) and about three quarters of young people who receive a secure authorisation are actually placed in secure accommodation.

  15. 15.

    The maximum length of time a young person can be tagged for is 6 months with a review period after 3 months.

  16. 16.

    That is, a young person with five offending episodes within a six-month period.

  17. 17.

    A division is a territorial sub-division of a Police Force typically covering around 100,000 people and managed by a Superintendent or Chief Superintendent

  18. 18.

    For a fuller discussion see S v. Miller (2001a).

  19. 19.

    Section 56(4)(b) of the Children (Scotland) Act 1995.

  20. 20.

    The levels of the ‘Fiscal Fine’ are set by an order of the Secretary of State, and are currently £25, £50, £75 and £100.

  21. 21.

    Section 51(1) Criminal Procedure (Scotland) Act 1995.

  22. 22.

    Section 51(1)(b) Criminal Procedure (Scotland) Act 1995.

  23. 23.

    The rules do not extend to a pre-emptive appointment of a legal representative for custody or emergency hearings where a secure warrant may be considered. In Martin v. N (2003), the Court of Session ruled that this was not a breach of the child's ECHR rights even if a secure warrant was the decision. However, the ruling did recommend that in cases where the emergency hearing did issue a secure warrant, it should at the same time appoint a legal representative and arrange a further hearing as quickly as possible at which the legal representative can attend.

  24. 24.

    Scottish Parliament, 4. October 2004, Answer to Question by Mr. Kenny MacAskill (Lothians) (SNP) (S2W — 10867).

  25. 25.

    Scottish Parliament 19. 07. 04. Answer to Question by Christine Grahame (South of Scotland) (SNP) (S2W — 9381).

  26. 26.

    Scottish Executive Youth Court Feasibility Project Group Report (2002), p. 10, Offending is not the Only Choice.

  27. 27.

    Scottish Executive Youth Court Feasibility Project Group Report (2002), p. 11. PATHWAY.

  28. 28.

    By means of private correspondence.

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Burman, M., Bradshaw, P., Hutton, N., McNeill, F., Munro, M. (2006). The End of an Era? – Youth Justice in Scotland. In: Junger-Tas, J., Decker, S.H. (eds) International Handbook of Juvenile Justice. Springer, Dordrecht. https://doi.org/10.1007/1-4020-4970-6_18

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