The Right to Education is a fundamental human right, set forth in the Universal Declaration of Human Rights and the International Human Rights Covenants, which have the force of international law. It occupies a central place and is essential and indispensable for the exercise of all other human rights and for development.

Education is the key to empowerment. It is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty, and obtain the means to participate fully in their communities. None of the civil, political, economic and social rights can be exercised by individuals unless they have received a certain minimum education.

Among the United Nations instruments, there exists many standard-setting instruments relating to the right to education, ranging from the Universal Declaration of Human Rights itself to various conventions, declarations, recommendations, frameworks and programmes of action, aimed at ensuring the implementation of this right or particular aspects of it.

The specific dimensions of the right to education are especially covered by the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Rights of the Child (1989), the Convention on the Elimination of All Forms of Discrimination against Women (1979).

Another treaty, the Convention on the Elimination of All Forms of Racial Discrimination (1965), requires States Parties to eliminate ‘racial discrimination in all its forms…’ in regard to ‘the right to education and training’, among several other rights.

Articles 13 of the International Covenant on Economic, Social and Cultural Rights has been interpreted as being the most comprehensive article on the right to education. Paragraph 13 (1) is the most relevant to us in the present context:

The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

Since the General Assembly adopted the Covenant in 1966, other international instruments have further elaborated the objectives to which education should be directed. States parties are required to ensure that education conforms to the aims and objectives identified in article 13 (1), as interpreted in the light of the World Declaration on Education for All (Jomtien, Thailand, 1990) (art. 1), the Convention on the Rights of the Child (art. 29 (1)), the Vienna Declaration and Programme of Action (Part I, para. 33 and Part II, para. 80), and the Plan of Action for the United Nations Decade for Human Rights Education (para. 2). While all these texts closely correspond to article 13 (1) of the Covenant, they also include elements which are not expressly provided for in the article, such as specific references to gender equality and respect for the environment. These new elements are implicit in, and reflect a contemporary interpretation of article 13 (1). They have received widespread endorsement from all regions of the world.

To pursue the aim of education for all is an obligation accepted by all States. It is more than an ambitious objective: it is an ambitious ethic – predicated on human dignity. Today the notion of literacy is no longer restricted to reading, writing and numeracy: education must also offer access to skills and know-how that enable the individual to take his or her place in society. It must also be a school of democracy, for the surest defence of the City is an educated and responsible citizenry.

Education must be accessible at all stages of life, so as to give a “second chance” to the excluded and enable every individual to adapt to a changing world and work environment. It must give access in the first instance to necessary knowledge, and then make available throughout life - not only in school but also through non-formal and informal education - what Robert Carneiro, in Keys to the 21st Century, calls “antidotes to unlearning”.

This objective will only be achieved if education for all is integrated in national development and poverty-reduction programmes. For today the essential link between education, development and poverty-reduction is universally recognized. This is why the poor and the excluded – particularly women and girls, too often deprived of education, and marginalized groups – should be the main targets of Education for all.

Societies must recognise that educating girls is not an option, but a necessity. It is a long-term investment ... and a tool for preventing conflict. It is the most cost-effective form of defence spending.

In November 2003 representatives from 18 countries and eight global aid and United Nations organisations meeting in New Delhi agreed to speed a plan to educate tens of millions of girls. But officials said that they have pledges for only half of the $3.5 billion needed annually for the project. The plan urges all countries where girl’s education lags to give budgetary priority to policies that promote gender equality.

Some of you may wish to remind me at this point that my stated aim for the International Association of Youth and Family Judges and Magistrates is “Supporting Youth And Family Judges And Magistrates In Maintaining The Rule Of Law” and not the promotion of “Education for All”. So where do judges and magistrates fit in?

The right to education is established in texts of varying legal nature such as conventions, recommendations, declarations, frameworks for action and charters which do not, legally speaking, involve the same obligations but which all serve the same end: the promotion and development of the right of every person, without discrimination, to enjoy access to education.

Almost every country has ratified the relevant Conventions, listed above. As soon as a Convention has been ratified, accepted or acceded to in sufficient numbers to enable it to enter into force, it ultimately becomes binding on the State that has adhered to it. Once incorporation procedures have been completed, it can be brought into force within that State’s internal order.

Declarations, Recommendations, Charters and Frameworks for Action are not binding and have only declamatory character. They are not subject to ratification. However, States and Governments adopting these declarations and recommendations also subscribe to moral commitments. These instruments clearly state their intention to implement them, even though there are no legal penalties for non-compliance. Furthermore, they may by custom become recognized as laying down rules binding upon States.

The responsibility devolves upon Governments to ensure that political commitments undertaken at the World Education Forum (Dakar, April 2000) are translated into national laws and policies. As a result, the constitutional and legislative foundation of the right to education assumes added significance, taking fully into account the legal implications of the Dakar Framework for Action. The Discussion on the Right to Education and Follow-up to the World Education Forum organized by the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR), in co-operation with UNESCO, on 14 May 2002, clearly showed how crucial it was to introduce constitutional provisions on the right to education as well as appropriate enabling legislation so that the State obligations under the relevant international conventions are incorporated into the domestic legal order.

The fundamental question is how the obligations relating to the right to education undertaken by Member States under international and regional instruments are incorporated into national legal systems. This is all the more important for achieving the Dakar goals, especially the goal of free and compulsory quality basic education.

The adoption of a human-rights based approach will greatly facilitate implementation of the right to education.

As the Informal Expert Consultation on Monitoring the Right to Education organized by UNESCO in March 2001 suggested, the follow-up to the World Education Forum should be linked to the implementation of international and regional instruments. It underlined the need for (i) examining the bases of the Dakar Framework for Action in both modern comparative constitutional law and conventional international law, and (ii) establishing the relationship between the Dakar Framework for Action and existing normative instruments as a continuity of existing law.

Following the general education law, national legislation in specific areas such as higher education, free and compulsory education, vocational and technical education, and financing of education would also require to be elaborated.

As provided for under existing instruments, the right to education can only be availed by its beneficiaries when the State obligations under these instruments are incorporated into the national legal system and their implementation is ensured effectively.

Therefore, it is crucial that the right to education in its various dimensions is incorporated into the constitutions and legislation of all Member States, so that it is really enjoyed by individual right-holders and by society.

Once a Convention is brought into force within a State’s order, the beneficiary of the right established by the Convention can use every available legal means to secure compliance: recourse to law courts, for instance, where the judge or magistrate ultimately has the power to examine whether there is a breach of the State’s legal obligations, and to come to a decision.

Clearly it was expected that as a follow-up to the World Education Forum, countries should modernize their legislation. UNESCO has been analysing constitutional provisions and national legislation relating to the right to education in different countries, on the one hand, and providing technical assistance to Member States in developing/modernizing national legislation, on the other.

Mobilising governments to develop and modernize national legislation is a critical element of implementing the Dakar Framework for Action. This is a mammoth task, especially in developing countries. Technical assistance provided by UNESCO would need to be available on a much broader scale. The International Association could usefully collaborate with UNESCO in drawing up education legislation in line with the Human Rights Conventions so as to advance the work in that direction.

The Dakar Framework for Action assigned to the international community six goals, two of which are particularly relevant. The first commits us to “ensuring that by 2015 all children, particularly girls, children in difficult circumstances and those belonging to ethnic minorities, have access to and complete free and compulsory primary education of good quality”. The second involves “achieving a 50 per cent improvement in levels of adult literacy by 2015, especially for women, and equitable access to basic and continuing education for all adults”.

And yet, almost four years after Dakar the right to education remains a distant goal for millions of people. The number of adult illiterates worldwide remains obstinately at around 900 million. Over 100 million children of primary school age still do not attend school and have no possibility of doing so.

All States agree that children must have access to basic education as of right, in particular to primary education which must be free. Poverty must not be a hindrance and the claim by the poor to such education must be recognized and reinforced. And yet, despite the presence of such an array of legal obligations and political commitments, millions of children still remain deprived of educational opportunities, many of them on account of poverty.

In 1990 international leaders meeting in Jomtien, Thailand, promised the world’s children an education by 2000. But the nineties was a decade of broken promises and brought no improvement in the overall situation. The world’s leaders had a chance to redeem themselves in Dakar but most, including the US President and the British Prime Minister, failed to even turn up. At the G7 meeting in Okinawa the following July The Dakar Framework for Action was not discussed, although the leaders did pledge to work towards closing the digital divide between North and South: the gap in access to new technology between rich and poor countries.

It is worth pointing out that the problems of illiteracy are not confined to developing nations. Even in the richest nations education systems cannot ensure sustainable literacy among the population. Studies show that over one-tenth, and more often than not one-fifth, of the population of industrialized countries is affected by illiteracy – defined as the inability to read and write with understanding a short simple statement in relation to everyday life.

Almost a quarter of young adults in the US having difficulty reading all but the simplest of texts. In the developed, as in the undeveloped, world low literacy invariably means poverty and the spiralling problems of drugs, violence and the insecurity which go with it.

A recent report on education in the UK (November 2003) found that pupils from deprived backgrounds were twice as likely as others to leave school without qualifications. More than 100,000 pupils had simply dropped out of the school system and disappeared. 41% of children referred to Youth Offending Teams had disrupted schooling. The Report pointed out that not having an education means that a child’s opportunity to fulfil its potential as an adult is hampered. This has costs for the child, the community in which they live and wider society.

Achieving the right to basic education for all is one of the biggest moral challenges of our times. It is more than ever necessary for us to rouse ourselves and take action. Education will only be effectively ‘for all’ when it becomes the active concern of everyone. Dakar must not be “yet another conference”, and Education for All must not forever remain an unfulfilled promise.

We must stop betraying hope, stop postponing action. Investing in education is investing in success, it is building our future. Governments, international institutions, social agencies, NGOs, associations, the private sector and citizens must join forces in carrying through this undertaking.

In the aftermath of 11 September we should also reflect on the fact that investing in education means investing in national and international security. For education is founded on four pillars: learning to know, learning to do, learning to be, and learning to live together.

Education for all is the best cement of peace, both between and within nations. But are we ready to pay the price of peace? To those who complained about the cost of education, Abraham Lincoln was in the habit of replying: “Very well, gentlemen, then try ignorance!”

The war against terrorism does not appear to be making the world a safer place. If we gave the same commitment, and financial backing, to the Dakar Programme for Action we might have more positive results.

Willie McCarney, Editor

The seminar looked at new initiatives in Youth Justice across the jurisdictions in the United Kingdom. The speakers were drawn from each jurisdiction and the day was a valuable opportunity to listen to, learn from and share experiences with others working within the Youth Justice System. A number of themes recurred throughout the day.

· The need for an integrated approach to Youth Justice

· The need for clear strategies to prevent offending and re-offending

· Earlier and more effective intervention

· The need to get things done more quickly

· Working in partnerships

· Restorative Justice

· Custodial sentences – a last resort

The delegates and speakers were welcomed by Margaret Wilson, JP Chair of Children Law UK to what was the inaugural conference in Scotland. The proceedings were chaired by Sheriff Principal Gordon Nicholson, CBE, QC. Northern Ireland was well represented with two of the speakers being eminent contributors to the working of the Youth Justice System in the Province, two Lay Panellists and a representative from the PSNI. I found the subject of the seminar particularly valuable especially after having recently attended our own Lay Panel refresher training.

The keynote speaker was Cathy Jamieson MSP, Minister for Justice. She has a background in social work and was a former Minister for Education in the Scottish Executive. She delivered a comprehensive overview of current and future plans for Youth Justice in Scotland. I will give a brief outline only of what she said as Dr McCarney is hoping to secure and reproduce her paper in a future edition of the Lay Panel Magazine.

CATHY JAMIESON MSP

Minister for Justice

The Minister began by emphasising the fact that the Scottish approach to Youth Justice is an integrated approach. Much work is ongoing and the present Children’s Hearing System is under review. (The Children’s Hearing System applies predominantly to all children under the age of 16. It is a locally based system that meets the needs and the deeds, so it is a welfare and offence based system). There has been public criticism that the Executive has been concentrating too much on the persistent offender (who make up a very small percentage of those who offend) but the Minister would argue that there has been a raft of initiatives and changes already to improve the system. She highlighted a number of new initiatives amongst which were Prevention Programmes, Early Intervention and Diversions, Youth Court, Restorative Justice, increasing financial resources, record level of policing (now 15000+) and widespread consultation on anti-social behaviour before an Anti-social Behaviour Bill comes before the Scottish Parliament.

I will briefly expand on two of the new initiatives the Minister mentioned. In Northern Ireland we are familiar with the concept of the Youth Court. In Scotland this is a new concept. Young people appear before Children’s Hearing Panels but in June 2003 a Youth Court pilot began in Hamilton designed to deal with 16-17 year old persistent offenders who would normally be in the adult court. The minister outlined three characteristics of the Youth Court.

1. Fast tracking – the young offender should appear in court within 10 days of being charged with an offence;

2. Designated sheriffs – to promote continuity and consistency;

3. Disposals tailored to the specific needs of the young offender – a multi-agency approach is required for this to operate.

Restorative Justice has been a feature in the Scottish Youth Justice System since 2001. Restorative Justice Services for young people and victims are now operating in almost every local authority in Scotland. Currently there is funding for programmes which offer 3000 places but it is intended to double the number of places available.

The Minister concluded that community safety and the voice of the public would always be a major consideration in planning the way forward in Youth Justice. Her talk stimulated a number of comments and questions from the floor. She presented as someone who was knowledgeable and comfortable with her portfolio.

Susan Matheson,

Chief Executive – SACRO

(Safeguarding Communities and Reducing Offending).

SACRO Programmes for Young People in the Community

SACRO provides 68 services from 25 offices to almost all local authorities in Scotland. It contributes to relevant Government policy formulation and national debate by providing briefings to Parliamentarians, responding to consultation papers, presenting evidence to Committees of the Scottish Parliament and commenting in the media. The portfolio of services SACRO offers include conflict resolution in communities and schools, restorative youth justice services, arrest referral, diversion from prosecution, bail supervision, group work with those on probation, visitors to prisons travel service, through-care and supported accommodation on release. It also manages national consultation and training services in community mediation and restorative justice.

Susan outlined the portfolio of programmes that SACRO uses with young people.

The Portfolio includes:

· Restorative Justice Conferencing

· Face-to-Face Meetings

· Shuttle Mediation

· Victim Awareness

· Cognitive Behavioural Modules

Restorative Justice Conferencing

Restorative Justice Conferencing is a meeting for all those directly affected by a crime: the victim, the young person who committed the offence, the family of the young person and, where applicable, supporters of the victim, a school teacher, the young person’s social worker, and so on. The meeting is facilitated by two conference convenors.

The format is designed to enable participants to look at:

1 The Facts – what happened and why

2 The Consequences – how the victim and others were affected

3 The Future – how the young person can make amends.

The outcome of the conference is an Action Plan which every participant agrees to and signs. The Action Plan specifies how the young person will make amends and take steps to prevent re-offending.

Face-to-Face Meetings

In some cases, victims and young persons will want to meet without any accompanying (or at least without any participating) support persons. In this case Face-to-Face Meetings will be arranged. The process is identical to conferencing, but without support persons attending the meeting. (Or, if they do attend, they do not participate in the dialogue, but sit outside the “circle” as observers.)

Shuttle Mediation

This involves a mediator acting as a go-between for the victim and the young person, as they negotiate their need for answers to questions, understanding and, where appropriate, reparation. Shuttle mediation, like Conferencing, is to be undertaken as a restorative process. It can also be used to offer protection to both victims and young people who are concerned about the potential for inadvertent contact, particularly where both parties live in a small community.

Victim Awareness

There will be victims who do not want any contact with the young person. Likewise, there may be young persons who cannot or do not want to have any contact with the victim. In these cases SACRO can offer a Victim-Awareness Programme. This programme is almost identical to a Restorative Justice Conference process. In some cases, the young person will only engage in the preparation phase of a Conference, which involves worksheets and one-to-one sessions with a restorative justice worker. In other cases, a conference is held in addition to the preparation work but instead of the actual victim being present, a carefully selected and briefed surrogate victim is invited to express their views as to what it is like to be a victim, to ask relevant questions of the young person, and to help the young person to come up with a suitable Action Plan.

Cognitive Behavioural Modules

Being confronted with the human consequences of a serious offence in a meeting with the victim can provide young people with a powerful motive to take steps to address their offending behaviour. Likewise, cognitive behavioural programmes have been shown to be an effective means of reducing recidivism. Combining the two processes in this way can therefore result in a highly effective voluntary measure, especially for persistent offenders.

Young people in Scotland who participate in a restorative justice programme will be given a risk/needs assessment to determine which cognitive-behavioural modules (if any) are required. Their participation in a module would form part of the restorative justice Action Plan. One-to-one or group sessions with the young person would normally be held at least weekly over a 4-6 week period. These modules might include such things as managing anger and aggression, problem-solving skills, alcohol and substance abuse, peer pressure, future choices – e.g. planning for education, training and employment, etc.

Social work or other specialist agencies are contacted for help if it is considered there are contributory factors to the young person’s offending that cannot be addressed within these modules, e.g. mental health issues. The non-criminogenic needs of the young person are considered and links made with other agencies to meet those needs.

Susan went on to talk a little about the current consultation document with respect to anti-social behaviour strategies. She felt that the Executive document was slanted towards punishment and enforcement with little provision set aside for resources to look at needs, etc. She believed a more holistic, prevention and diversionary approach is required. It would seem that there are interesting debates ahead!

Annabella Scott JP,

Youth Justice Board – England and Wales

Vice Chair Children Law UK

Non-Custodial Programmes for

Young People

Annabella began with the words

“Custody is not the most effective way of reducing re-offending of young people”

The reform of the Youth Justice System in England and Wales has had 4 main aims:

1. To develop a clear strategy to prevent offending and re-offending

2. To intervene earlier and more effectively

3. To get things done more quickly

4. To bring together those people who have an interest in doing something about youth crime.

In order to achieve these aims the Youth Justice Board (YJB) and the multi-agency Youth Offending Teams (YOTs) have been established. (YOTs include representatives from Social Services, Probation, Health, Education and the Police). Courts have been given powers to intervene earlier and more effectively and have been provided with a wide range of community based penalties. The custodial sentence should be viewed very much as the last resort.

With the emphasis on alternatives to prosecution new programmes and new options have been introduced. These include the use of Final Warnings, Restorative Justice, Mentoring, Referral Orders, Intensive Supervision and Surveillance Programmes (ISSPs) and in some instances electronic tagging.

I will elaborate on only two of the above.

· Referral Orders

The Referral Order was introduced in April 2002. It is mandatory for almost all first time offenders and the offender must have pleaded guilty. The young person is referred to a panel. Parents are encouraged to attend and under 16s must be accompanied by a parent(s). ROs operate within a community context and victims can attend. (ROs are underpinned by the principles of restorative justice). The emphasis is on reparation and constructive interventions to deal with such issues, for example, as alcohol abuse, non-attendance at school, etc. The panel reviews progress and there is a final meeting to sign off. If the young person has completed then they sign off – if not, they go back to court. ROs now account for about one third of all Youth Court disposals.

· Intensive Supervision and Surveillance Programmes (ISSPs)

This is a 6 month option and it can be attached as part of another order. It may, in the future, be extended from 6 to 12 months. It is targeted at young offenders who have committed a series of offences over a short period of time. It is available across the whole of England and Wales. Currently there are 1100 young people on the scheme and since its launch in July 2001, 6000 young people have been involved. The intensive surveillance provision is for 24 hours 7 days a week. This can be achieved through curfew, the provision of a tracker or individual mentor or via tagging. The first three months is the most intensive phase. The young offender must participate for 24 hours per week in the elements of reparation, education and training, offending behaviour courses, training in interpersonal skills and family support. All programmes must include these elements but they may include other elements such as addressing alcohol/drug abuse. The second three months is less intensive.

It is too soon to assess the full impact of ISSPs but to date 50% have completed successfully. Re-offending data is not yet available.

The number of young people in custody in England and Wales has been decreasing. At the end of September 2003 the number of those in custody under the age of 18 was 2060 - 351 less than at the same point last year. The establishment of the YJB and the YOTs has brought about new ways of working with the young offender.

3 Custody

Custody is a last resort and its role is to protect the child and the community. There should be alternatives to custody such as bail support and remand fostering. In the early 1970s five hundred young people were in custody. (In the 1970s for example, persistent non-attendance at school was a custodial offence). Today we have 25 young people in custody. This reduction is due in part to the fact that the Youth Justice system is moving from a custodial model to a community model. Artie believes that if we are to stop young people offending we must meet their needs. He said “We need to meet welfare needs, purely justice models are not enough.”

SHERIFF HUGH NELSON

Hamilton Sheriff Court

Youth Court Pilots in Scotland

Sheriff Nelson gave us his perspective on the youth court pilot in Hamilton, Scotland. It was an interesting, and at times, amusing account by a designated Sheriff. Whilst some of his presentation overlapped with that of the Minister, e.g. the three essentials, he did give us more insight into the actual workings of the process.

Many of the young people who come before the Sheriff present with a variety of problems - addiction, homelessness, and poor home backgrounds. The underlying ethos of the youth court is that tackling crime and not its underlying causes is a futile exercise. If a young person is identified as a potential candidate for the youth court the police will provide, to the Procurator Fiscal, information about the background of the young person – not just about the crime.

The first appearance is within 10 to 14 days after the alleged offence. The trial is fixed within forty days of the first appearance. On the day of the first appearance the legal representatives are given the documents about the case. There is disclosure so that the defence knows what the prosecutor knows, including a full list of prosecution witnesses. (The Scottish Executive has introduced legal aid changes and, broadly speaking, the young person now can instruct a solicitor of their choice – they are no longer reliant upon the services of the duty solicitor).

At the end of the process there are good quality programmes available to the court as opposed to custody options. Electronic monitoring, as a bail condition in the youth court, is only imposed if the alternative would almost certainly been custody. The programmes are funded for buying in expert services. They are also founded on “what works” research. Further, they are sufficiently well funded so that they can be tailored to the social needs of the young person.

The social enquiry report before the court tells in much more detail than previously what the programme is going to be for the individual. It will also recommend if the young person will respond better if under close supervision by the court. Research has indicated that young people are more likely to respond to these programmes if they are subject to regular review and this review is by the same sheriff. There is also a need for the young person to feel involved in the sentencing process.

It is early days and robust statistics were not available but Sheriff Nelson presented as optimistic for the future. However, he was a realist and highlighted that it was a resource intensive project (both in terms of financial and human resources) and would require adequate resources in the future if it was to make a difference. There were questions and comments from the floor from his colleagues on the Bench - positive, negative and cynical. I am sure this would not be peculiar to this jurisdiction alone!

Dr Willie McCarney OBE, JP President International Association of Youth & Family Judges & Magistrates

International Developments in

Youth Justice

Dr McCarney’s presentation was a comprehensive and “hot off the press” overview of European recommendations with regard to new developments in Youth Justice. If I am allowed to make a recommendation, I believe that this presentation would be of interest to all Lay Panellists and I hope that it will be included in a future Lay Panel Magazine but preferably that an opportunity is provided for Willie to deliver his paper in person to his colleagues. I will attempt to summarise the main points.

Willie began by reminding us that in 1987 the Committee of Ministers of the Council of Europe issued guidelines for dealing with young offenders. These guidelines are contained in Recommendation No R (87) 20. Since 1987 the world has moved on and the time has come to reappraise these guidelines for a number of reasons:

1. There have been advances in scientific research

2. There have been significant changes in the lives of young people

3. There have been developments in youth justice and policy

4. The accession of new member states from Central and Eastern Europe.

It has become increasingly clear that Recommendation No R (87) 20 did not take into account the three reasons stated above nor does it cover sufficiently the problems, specific situations and needs of the new member states.

As a consequence a committee of experts from 22 member states, plus three observing parties (Canada, the International Association of Youth and Family Judges and Magistrates and the Permanent European Conference on Probation and Aftercare) was set up to redraft the Recommendation. The Committee was asked to consider:

· The current trends in youth offending and the response of the youth justice system;

· The functioning/malfunctioning of the system with recommendations for improvements;

· The safeguards young offenders should enjoy during proceedings;

· Methods of intervention in open and closed environments and the problems of persistent offenders;

· The functioning /malfunctioning of institutions dealing with offenders in closed environments;

· Particular attention should be paid to the conditions in which young offenders are detained and the implementation of appropriate socio-educational programmes in closed institutions.

The Committee identified a number of key principles:

· The response to youth offending should be swift, early and consistent;

· The responsibility for offending behaviour be widened to include the young offender’s parents;

· As far as possible and where appropriate, interventions with young offenders should include reparation to their victims and/or their communities;

· Interventions should directly address offending behaviour and

· Interventions should be informed as far as possible by scientific evidence on effectiveness.

On September 24^th 2003 the Committee of Ministers of the Council of Europe adopted a recommendation on new ways of dealing with offending youth. This recommendation, Recommendation (2003) 20E now replaces Recommendation No (87) 20.

A number of the principles of R (87) 20 were upheld. The key issues in the new Recommendation are:

· A more strategic approach;

· New responses;

· Implementation;

· Rights and safeguards and

· Monitoring, evaluation and information dissemination.

The Recommendation also stated that youth crime can not be left to the justice system alone. The roots of crime lie in the family, school, neighbourhood and peers. Each of these institutions must be involved in the solutions and a multi-disciplinary approach is essential to tackle the problem.

The Recommendation also addressed several target groups. These are:

· Young persistent and serious offenders;

· Ethnic minorities and

· Offenders who offend because they are high on drugs or alcohol.

Other target groups requiring special attention are:

· Female offenders;

· Those accused of anti-social and/or unruly behaviour including incivilities, bullying, truancy, under-age drinking, drug abuse and

· Offenders who are under the age of criminal responsibility.

The presentation went on to focus on effective interventions and new responses, alternatives to remand in custody, risk assessment, preparation for release, reintegration and implementation.

All new responses and procedures contained in Recommendation Rec (2003) 20E must be considered within the framework of the rights and safeguards set out in relevant international instruments. The importance of monitoring, evaluation and information dissemination was emphasised. The Committee also highlighted the need to develop separate and distinctive European Rules for children (i.e. minors) deprived of their liberty or subject to community sanctions and measures.

This summary cannot do justice to the presentation. It was a comprehensive, detailed and crafted piece of work.

Conclusion

The main finding is that attendance at this conference was very worthwhile. All the presentations had much to offer and possibly the most reassuring aspect was that almost everyone was “singing from the same hymn sheet.” There was recognition for an integrated approach to youth justice with earlier and more effective intervention and clear strategies to prevent offending and re-offending. The elimination of delay, the promotion of restorative principles and custody as a measure of last resort were all endorsed. Recommendation Rec (2003) 20E encapsulated all that was discussed and this bodes well for a future of common practice across the European Community.

The first speaker, Professor Audrey Mullender has 25 years experience of social work, teaching and research and has written a number of influential books on domestic violence. She began by outlining that domestic violence crossed all stratas of society and all cultures killing 2 women per week. It is the most repeated crime frequently intensifying throughout a victim’s pregnancy and during and after a couple’s separation. Whereas the physical abuse is most obvious the mental abuse can be just as damaging. The woman’s feeling of self worth is diminished as she is constantly told she is mad or stupid.

She is constantly demeaned in front of her children and the children are, in turn, encouraged to treat her in the same manner. The distorted view instilled in the affected children makes detection by social workers very difficult. She felt all social workers preparing court reports should be on the look out for it and learn to ask the right question especially with mental abuse, which is very difficult to detect.

Of all the children on the Child Protection Register at least ½ to ¾ have experienced some form of domestic violence. In compiling her statistics, Professor Mullender went into schools to increase awareness and question children on their knowledge of the subject of domestic violence. The most alarming statistic to emerge was that 1/3 of boys said women deserved to be hit and 1/5 of girls said the same. 80% of the children questioned said they would like the subject of domestic violence to be addressed in the National Curriculum so that it can be discussed openly in schools. Raising awareness on the issue of domestic violence has to start in primary schools, waiting until children are 13+ is too late to make a serious impact on changing the mind set of our youth.

On the issue of contact within the setting of domestic violence, 80% of children questioned said they did not want to see the violent partner however Women’s Aid research has shown an increase in contact orders despite the increase in post separation violence.

Is Protection and Justice working? The government is planning a DOMESTIC VIOLENCE BILL called SAFETY AND JUSTICE.

It’s 3 aims are:-

PREVENTION: working with victims and offenders to prevent it happening again.

PROTECTION AND JUSTICE: Increased legal protection for victims and their families.

SUPPORT: To help victims rebuild their lives.

Adam Jukes, psychotherapist and group psychoanalyst and author of a number of influential books and papers about male violence and abuse was the next speaker.

Why men do it.

How can we stop them?

Can it be achieved?

Adam Jukes believes that domestic violence is not pathological or a sickness but is about control and domination so work starts by telling the men they are in charge and in charge of the process.

There are three clinical issues using the Domino theory.

NARCASTIC WOUND

INJUSTICE

MAD HYPOTETIST

Violent men always have this sense of injustice so by using therapy they learn to accept it, knowing it will never go away. Working through this rationale, men learn to control their violent urges.

Detective Constable Dave Johnson was the third speaker. He has worked for five years as a domestic violence officer and was responsible for writing policies and practices which have been adopted around Merseyside and adapted for use around the UK. He worked with youth offenders for 12 years completing home visits where he frequently came away thinking to himself:-

- Those parents have no idea how to parent, and

- Who is the parent in that home?

For the last year his remit has been to work with children who abuse their parents or carer. Before starting this work there was a common assumption that this problem did not exist yet now Detective Constable Johnson has three referrals a day in the Wirral. According to his findings, child to parent abuse is present in a vast majority of cases going through the court system.

The symptoms of child to adult abusers are:-

1) Disorder attachment: these children can be risk accessed as young as three in nursery.

2) Feeling of injustice: i.e. failure to achieve through learned behaviour turn to bullying and violence.

3) Violence: this gives them the desired result.

4) Repeat offenders: Because of their behaviour these young people are thrown out of their homes and offend while on the street or in care.

5) Truancy: Many people who truant, experience or are the perpetrator of domestic violence.

After lunch the speaker was Nicky Road who dealt with the educational needs of children affected by domestic violence. Kids who experience domestic violence are fearful of leaving their mothers or in severe case have to care for their mothers after a violent episode. When the parent eventually sums up the courage to leave they have to go to a number of refuges until they feel safe that the violent partner will not find them. They are in a cycle of interrupted learning and schools have a responsibility to support interrupted learners. Primary schools are better at coping with this problem as they don’t have the constraints of league tables.

As the government is introducing a bill on domestic violence and the findings of the conference will be forwarded, we had four workshops dealing with different issues:-

- Domestic violence within the ethnic communities

- Domestic violence and the courts

- Domestic violence within the school setting

- Domestic violence and refuges

I attended the workshop about the courts and how current practices can be improved on.

We came up with three proposals:

1) The UK to ratify the UN Convention.

2) One Stop Courts, like those in New York and which are currently being piloted in Croydon, specialising in domestic violence. The child would have his or her own lawyer, CAFCA’s worker and if applicable Family Support Worker.

3) Avoid delay. If Court proceedings go on for over a year children’s memories can become distorted. Children have rights and deserve to be heard. Delay only manifests the problem in their minds.

So, in summary, it was agreed that across the country there are a lot of worthwhile projects being carried out which tackle the issue of domestic violence, however, the funding for these programs is often short term.

This is a huge problem.

Everyone i.e government, courts, education, mediators, contact centres, Women’s Aid, family support workers, and child care workers should be working together to tackle domestic violence once and for all so that the abused children of the present don’t become abusers in the future.

The Origin of Juvenile Courts

In the United States of America the separate trial of adult and juvenile offenders was introduced on a regular basis in a number of states from 1870 onwards. This was followed in 1899 by the establishment in Cooke County, Illinois, of what is generally regarded as the first modern juvenile court which embraced within its jurisdiction cases of delinquency, dependency and abuse. Within 25 years all but two states in America had made legislative provision for a juvenile court on the lines of that pioneered by Illinois, though in practice the quality of provision varied greatly.

Whilst the pressure for change in the juvenile justice field both in the United Kingdom and in America came from essentially similar sources and possibly from the same motives, the outcome in each jurisdiction was markedly different. In the British Isles^{^[1]}, the juvenile court when it finally came, was firmly located within the judicial tradition of the country whereas in America the procedural characteristics of the court were seen more as a framework within which a primarily welfare orientated approach to juvenile offenders could be given expression.

The Illinois Juvenile Court Act of 1899 endorsed the view that children should not be treated as criminals, that welfare considerations were paramount and that a full understanding of the child’s background and circumstances was necessary and more important than the question of guilt or innocence. All court procedures and practices were to be geared to the investigation, diagnosis and treatment of the problems of the child.

By contrast, Norway in 1896, Sweden in 1902 and Denmark in 1905, in major reviews of the juvenile justice arrangements, excluded children from the criminal courts by raising the age of criminal responsibility to 14 (Norway) and 15 (Sweden and Denmark) respectively. Children below that age who committed offences were regarded as children in need of care, to be dealt with by welfare tribunals known as “child welfare panels”. The panels were non-judicial in character and were conceived to educate and otherwise meet the needs of neglected children, including offenders, rather than to punish. Those offenders who were held criminally responsible, i.e. those over age 14/15, were still to be subject to prosecution unless referred to a panel by the public prosecutor.

Current arrangements in Scandinavia still adhere to these original concepts.

Thus, whilst the Children Act 1908 was a legislative milestone in the treatment of young offenders in the British Isles it was by no means unique or particularly radical. Further refinements followed. In 1920 the Juvenile Courts (Metropolis) Act, which was restricted to London, provided for the appointment of specialist magistrates supported by lay justices in the metropolitan courts dealing with juveniles. This practice was endorsed by the Departmental Committee on the Treatment of Young Offenders in 1927, subsequently adopted nationally in Great Britain by the 1932 Children and Young Persons Act and consolidated in the 1933 Act of the same name. Anticipating later developments, the Departmental Committee of 1927 also observed that there was little distinction between neglected and delinquent children, including offenders, coming before the juvenile courts. This suggestion was subsequently adopted by the 1933 Act which included a statutory declaration to that effect. That Act also raised the age of criminal responsibility in Great Britain to eight years; required local authorities to provide remand homes to replace places of detention provided by the police under the 1908 Act; and reconstituted reformatory and industrial schools as approved schools. There was no attempt to change the juvenile court as a forum for compulsory intervention, the Departmental Committee of 1927 having supported its retention, albeit with some modification in approach to cater for welfare considerations.

The Criminal Justice Act 1948 in Great Britain restricted the imprisonment of young offenders and made provision for the establishment of attendance and detention centres.

The next major development in the field of children’s legislation in Great Britain, apart from the Children Act 1948 which was concerned primarily with children in care, was the Children and Young Persons Act 1963. That Act, which applied only to England and Wales, had been preceded in 1960 by the Ingleby Report which emphasised the role of the family and the child’s wider environment in the causality of delinquency and advocated vigorous preventative measures, with local authorities taking a central role.

The Report also reflected the dilemma of juvenile courts considering a case on one ground – the commission of an offence – and disposing of it under the wider criteria of the needs of the child.

The Committee, however, saw the juvenile court as offering the best safeguard to the rights and liberties of children and their parents and attempted to avoid the dilemma by recommending that the age of criminal responsibility be raised to 14, children under that age who offended being made the subject of care, protection or control proceedings rather than criminal proceedings. The Children and Young Persons Act 1963, however, only raised the age of criminal responsibility to ten years of age.

In Scotland legislative provision affecting juvenile offenders up to the 1960’s broadly paralleled that in England and Wales. However the establishment of specialist juvenile courts of summary jurisdiction, akin to those in England and Wales, was discretionary and did not receive universal support in Scotland. Thus, whilst the legislative intent throughout Great Britain was broadly uniform, practice was not and the divergence between Scotland and England and Wales became more marked in the 1960’s.

The Ingleby Report did not apply to Scotland and, in 1961, the Secretary of State for Scotland appointed a committee to consider existing Scottish practice, particularly the constitution, powers and procedure of the courts regarding juvenile offenders and those in need of care, protection or control.

This was the Kilbrandon Committee which, in its Report of 1964, gave priority to welfare considerations in dealing with all juveniles, including offenders, as compared with those traditionally associated with courts of law.

The Committee’s Report, and the subsequent Social Work (Scotland) Act 1968, accepted the hypothesis that the legal classification which distinguishes children and young persons as offenders or non-offenders often belies a basic similarity of need and that the system as it then existed in Scotland was incapable of identifying and meeting those needs. The 1968 Act, therefore, replaced the juvenile jurisdiction of Scottish courts in respect of care cases, and all but the most serious criminal cases, with a more informal and specialised welfare orientated system known as Children’s Hearings (involving the Reporter and the Children’s Panel).

In Northern Ireland, the first juvenile courts were established under the Children Act 1908 which provided that courts of summary jurisdiction, when hearing charges or applications relating to a child or young person, unless the child or young person was charged jointly with a person over 16 years of age, should be held in a different building or room from that in which the ordinary sittings of the court are held, or on different days or at different times from those at which the ordinary sittings were held. The Act also provided that no person, other than the members and officers of the court and the parties to the case, their solicitors and counsel, and other persons directly concerned in the case should, except by leave of the court, be allowed to attend. It also provided that bona fide representatives of a newspaper or news agency should not be excluded!

The juvenile courts under the 1908 Act were constituted by a bench of local Justices of the Peace and may, or may not, have been chaired by a Resident Magistrate (who was not necessarily legally qualified (similar to the adult courts of summary jurisdiction). However, on the commencement of the Summary Jurisdiction and Criminal Justice Act (Northern Ireland) 1935 on 1 January 1936, the adult and juvenile courts were constituted by a legally qualified Resident Magistrate sitting alone. Effectively the Act abolished lay involvement in the courts between 1935 and 1942.

The Lynn Committee Report “The Protection and Welfare of the Young and the Treatment of Young Offenders” in 1938 (which had been shelved on the outbreak of World War II) led to the introduction of the Children (Juvenile Courts) Act (Northern Ireland) 1942 which provided for two lay persons, known as Children’s Guardians, to sit with the Resident Magistrate in cases involving juveniles.

The Guardian’s role was extremely limited as the Act provided –

“there may be associated with the resident magistrate in the hearing of the charge or application two persons, to be called children’s guardians, appointed in accordance with the following provisions of this Act;

The Governor of Northern Ireland shall appoint as children’s guardians for each petty sessions district such number of persons qualified to deal with juvenile cases as the said Governor may think necessary.

A children’s guardian when sitting with a court of summary jurisdiction may interrogate any person giving evidence on the hearing of the charge or application before the court, but shall not otherwise exercise any judicial functions.”

The Parliamentary Secretary for the Ministry of Home Affairs in introducing the Bill in the Northern Ireland Parliament came under severe criticism. The Bill was described as “a revival of bumbledom denounced by Charles Dickens” and the following comments were made in the debate – “if there are three members of a court, each member should have an equal voice and equal authority in the decision; there ought to be a resident magistrate appointed for the children’s courts and he ought to be specially selected for his disposition towards children; they will sit on either side of the magistrate but will have no power; what is the use of appointing people as interrogators when the magistrate will take no notice of them”.

The coming into force of The Children and Young Persons Act (Northern Ireland) 1950, (“The Children Act of 1950”) brought about the constitution of the juvenile courts as we know them today. The Second Schedule to that Act provided for the formation in each county and county borough of a panel of persons having special qualifications for dealing with juvenile cases, and for the appointment by the Governor of Northern Ireland of persons as members of such panels. In this Schedule it was also provided that

“the court shall be constituted of a Resident Magistrate, as chairman, with two persons selected from the panel, of whom one at least shall be a woman. These lay members have been given full judicial powers, and it has been provided that in the event of a difference of opinion on the bench, the decision of the majority of members shall apply”.

Under this Act it was intended that the court should sit in a peaceful and quiet atmosphere, where adequate time could be devoted to giving effect to what is the cardinal principle of the Act, as laid down in Section 46(1), viz: the welfare of the child or young person brought before the court.

In the years that followed the initial flush of success in setting up the Juvenile Courts concerns began to be expressed on a number of fronts.

Certain magistrates failed to pay full regard to the social responsibility of the court and to the importance of the welfare of the child as laid down in The Children and Young Persons Act (Northern Ireland), 1950. They tended instead to regard the juvenile court as a minor version of the adult court.

Many members of the juvenile court lay panels tended to be overawed and sometimes dominated, by their more experienced professional colleagues. Indeed it was estimated that only in a few instances was the “equality of state” between the Resident Magistrate and the lay members, envisaged in the Second Schedule to the Children Act of 1950 achieved.

There was some disquiet at the lack of qualification for children work on the part of some Resident Magistrates, and some members of the panels, and at the method of selection, appointment and re-appointment of members of the lay panels.

There was no provision for instruction in their duties of newly-appointed lay members. Nor, indeed, was any instruction given to newly appointed Resident Magistrates who would not necessarily have in-depth knowledge of The Children and Young Persons Act (Northern Ireland), 1950.

In some country districts there was so little work for the lay members that it was impossible for them to acquire the necessary experience.

In some courts a full panel of lay members practically never sat. It was difficult to see an easy solution to this problem. The setting up of a larger panel would guarantee the availability of more people to sit but would increase the possibility that many would lack experience. The retention of smaller panels would compound the problem of incomplete courts because members would be absent on occasion. There are often personal circumstances to be considered such as illness or family commitments which restrict a person’s availability and at all times we must be mindful that the appointment is voluntary, unpaid and time-consuming.

There was undue variation in the different courts throughout the Province in the manner in which cases were dealt with and in the conduct of proceedings.

The use of legal phraseology by the presiding magistrate was confusing to the juvenile defendant who generally had little knowledge of what was going on. The substance of the charge was not always explained to the juvenile in simple language suitable to his age and understanding, as laid down in Rule 6 of the Summary Jurisdiction (Children and Young Persons) Rules (Northern Ireland), 1950.

Outside observers noted that the whole atmosphere of a juvenile court was altered where the juvenile, or his parent, was legally represented. Some Resident Magistrates tended, where there was legal representation, to treat the juvenile court as a court of law only, and to lose sight of its social responsibilities.

Many of the buildings in which juvenile courts were held were totally unsuitable for the purpose and rendered it impossible for the dignity of the courts to be upheld. There were complaints that some of them had no waiting rooms at all. In others, there was one waiting room only, where offenders in trivial and serious cases had to mingle for long periods. In many, a separate room to which the Bench could withdraw for discussion of cases when this was considered necessary, had not been provided; seating accommodation was inadequate; heating and ventilation were unsatisfactory; and toilet facilities were often absent.

Perhaps even more disconcerting was the failure to bring about the complete physical separation between juvenile courts and adult courts as envisaged by The Children Act of 1950. This was due partly to the lack of waiting-room accommodation and/or separate entrances, and partly to the arrangement whereby adult cases were frequently heard immediately after juvenile cases, resulting in the mingling of children with adult offenders, which is undesirable.

Where a juvenile court was held fifteen minutes or half-an-hour before an adult court, there was a tendency on the part of some Resident Magistrates to devote less time, and sometimes less care, to the juvenile cases, than they might otherwise do.

So it seemed clear that there was room for improvement on two fronts - one regarding the persons constituting the court and its procedure, and the other regarding the premises in which the courts were held.

“The Children and Young Persons Act 1968, in raising the age of criminal responsibility from 8 years to 10 years, re-enacted the provisions relating to the constitution of the juvenile courts and, for the first time, put training for newly-appointed Lay Panellists on a statutory footing in having to undertake a course of training within 12 months.

Before 1974 children’s magistrates on appointment received no guidance on their duties and functions in the juvenile court, beyond what is contained in The Children Act of 1968 and the regulations under that Act. There was growing pressure from Lay Members for training to be given and for the points listed above to be faced up to.

In 1974 Commander Charles Mullan, then Resident Magistrate in Belfast, went to Oxford, England, to attend the World Congress of the International Association of Youth and Family Judges and Magistrates (the Association of which I am currently President). There he had discussions with English colleagues about the setting up of an English Branch of the International Association. This Association was to be called the British Juvenile and Family Court Society (Recently renamed Children Law UK).

On returning to Northern Ireland Commander Mullan resolved to set up a Northern Ireland Association to consider the issues outlined in the preceding paragraphs and to ensure that training would focus on the matters of concern identified by Lay Panel Members. He brought together a small working party composed of himself, Frank Edgar (Northern Ireland Court Service), Rosemary Webb, Frank Rowan and Marguerite Faulkner.

The inaugural meeting of the Northern Ireland Juvenile Courts Association took place in Belfast Magistrates’ Court in 1976. The Rules and Constitution had been drafted by Frank Edgar in conjunction with Charles Mullan RM.

Although all Lay Panellists had been invited to attend, only about 60% did so. The meeting was chaired by Charles Mullan RM and it was agreed to establish the Association under the Rules and Constitution proposed by Edgar and Mullan! Norman McSween was the first Chairman and Marguerite Faulkner was Vice-Chair. Frank Rowan was elected Honorary Secretary and Stuart McCullough as Honorary Treasurer.

Credit for much of the change in the role of Lay Panel Members lay, not with the Association in its early days, but with a small number of dedicated individuals who took an active interest in bringing about improvements to enhance the organisation and effectiveness of the Juvenile Courts. The following individuals played a leading role in bringing about change in the early ’70s and ’80s:-

Resident Magistrates

Commander Charles Mullan RM – Belfast

Dr J V S Mills RM - Belfast

J M Shearer RM – Londonderry

Lay Panellists

Frank Rowan – Belfast

Norman McSween – Lisburn

Marguerite Faulkner – Cookstown

Rosemary Webb – Antrim

Northern Ireland Office (Administration of Justice Branch) – later to be subsumed in the Northern Ireland Court Service with effect from 18 April 1979!)

Frank Edgar (since 1974)

From 1 January 1974, the Lord Chancellor replaced the Governor of Northern Ireland as the appointing authority for JPs, RMs and Lay Panellists. Frank Edgar (then of NIO) was appointed Assistant Secretary of Commissions for Northern Ireland by the Lord Chancellor. As such, he was Secretary to the Lay Panel Advisory Committee established by the Lord Chancellor to advise and recommend suitable persons for appointment as Lay Panellists for each County and County Borough (changed to each County Court Division in 1979!).

The Advisory Committee was chaired by Commander Mullan RM and also comprised experienced and respected Lay Panellist representatives from each of the counties and county boroughs who sought out people with particular qualifications, skills or interest in children and young people who would be considered suitable for appointment as a Lay Panellist and whose name could be put forward to the Lord Chancellor for appointment.

In 1974, training courses for new and existing Lay Panellists were established by Frank Edgar through Pat Patten from the (then) Extra-Mural Department of Queen’s University. The courses were initially administered by the Lord Chancellor’s Department and later by the Northern Ireland Court Service.

All new Lay Panellists were required to attend six (1–day) courses after appointment as well as sitting as observers (at their local Juvenile Court and, if they were from outside Belfast, at Belfast Juvenile Court). They were also required to visit Training Schools (Rathgael, St. Patrick’s and Middletown) as well as some Children’s Homes! “Refresher courses” were also organised for established Panellists and these were presented at Belfast, Coleraine and Omagh.

Initially, courses were organised in evenings but because of the limited time available and due to the security difficulties throughout the country at that time, it was decided to hold 1-day courses on Saturdays.

Existing induction training is held mid-week while refresher training continues to be held on Saturdays!

On particular occasions a residential course was organised (e.g. on the Children Order in Slieve Donard Hotel, Newcastle in 1995) and Lay Panellists are also funded to attend relevant seminars (mostly in GB).

The aim of training was to inform Lay Panellists of the extent of their powers and the procedure to be followed – not to make them lawyers! They were advised to listen to the RM ( as the legally-qualified Chairman) on legal points but to reach their own conclusions on the facts and outcome of a case and vote accordingly. They were equal on the Bench with the RM and other Lay Panellist and, if there was disagreement on a particular outcome, the decision of the court was by a majority. Armed with more knowledge and a better understanding of the issues to be addressed against the legal criteria, it was hoped that Lay Panellists would be better equipped – and more confident - to play a more effective part in the decision-making role of the court.

The topics for training were usually decided from suggestions made by the body of Lay Panellists attending the courses and Frank Edgar/Pat Patten would co-ordinate these into a course structure for each of the sessions. More recently, the training plans and structure are decided and planned through a Training Committee and administered by staff from the Northern Ireland Court Service. (Lay Panel Training now comes within the remit of the Judicial Studies Board for Northern Ireland).

Pat Patten usually led the training sessions supported by “experts” from all areas of the system involved with children and young persons. Initially, Kevin Boyle (Barrister – later Professor Boyle) was a keen and regular contributor to the training sessions along with RMs, Clerks of Petty Sessions, solicitors, Police Officers, Probation Officers, Social Workers, Psychologists, Psychiatrists and Doctors. On occasions, young people were invited to give their perspective on particular experiences or issues.

The Association Executive felt that a training scheme should be devised, on the lines of that recommended by the Magistrates’ Association in Great Britain, to enable Lay Panel Members (a) to understand the nature of their duties so that they would acquire the judicial mind and learn to act judicially whilst sitting on the bench; (b) to obtain sufficient knowledge of the law so that they could follow with understanding any normal case they might be called upon to hear; (c) to acquire sufficient knowledge of the rules of evidence so that they could readily recognize what is admissible and what inadmissible; (d) to learn the various courses which may be taken in dealing with offenders so that they understand the nature of the orders they may make and their effect; and (e) to understand the relationship which should exist between members of the bench, the clerk of the court, the probation officers and other servants of the court, and the position of the police. Lay Panel Members also required an up-to-date knowledge of the resources available for the treatment of the child or young person.

The Association believed that it was essential that conferences for all Lay Panel Members should be arranged at intervals, with opportunities for lectures by qualified persons on work in the field of juvenile delinquency and rehabilitation; for discussion among members of their problems; and for visits to training schools and other institutions.

Commander Mullan and Frank Edgar continued to work closely with the Association. This ensured that the views of the members were taken into account in planning training programmes. None-the-less, progress was slow and training fell far short of the high standards set by today’s Training Committee.

The Association began to lobby Court Service for improvements in court premises and procedures. We asked for improved waiting room facilities, with separation of offenders and witnesses, adequate seating, improved toilet facilities, the provision of vending machines for those who had lengthy waits before their case was called, the provision of suitable holding facilities for young people who had been remanded in custody.

The Association felt that in a number of cases coming before the juvenile court the bench could obtain much benefit from the advice of a psychiatrist, and the children or young persons concerned might be helped by treatment. The facilities for such a service were extremely limited. For many years we stressed the importance of establishing a residential unit for the psychiatric treatment of juveniles.

There was concern that the identity of the offender before the juvenile court was often made public. This was impossible to avoid when adults and juveniles were waiting together. In some country areas the list of cases was put up at the entrance to the court with the name of the child (or children) included with that of the adults.

The Association believed that, except in courthouses where separate entrances and separate court-rooms were provided, juvenile cases should not be heard in the same building on the same day as adult cases. We also recommend that juveniles charged with indictable offences should be completely segregated from those charged with non-indictable offences.

Another area of concern was that of the age of criminal responsibility. The Association believed that offences committed by young children are due in large measure to a lack of discipline and proper parental control and that such children are really in need of care or control and should be dealt with in the juvenile court accordingly instead of being charged. The Association recommend that the age of criminal responsibility should be raised to 12 years, and that all children under that age brought to the court should be dealt with as being in need of care or control.

Lay Panel Numbers

There was approx 200 Lay Panel members for Northern Ireland in the early 1970s. Equal sharing of the juvenile court rotas meant that, in country areas, Panellists were only invited to sit once or twice a year and, as a result, did not get the opportunity to develop their knowledge or experience or maintain continuity. This problem was compounded by RMs changing districts over the years.

To alleviate this problem, the number of Panellists has been reduced over the years (as people retired) and the current number (124 in 2004) enables them to sit more frequently and build their knowledge/experience.

The numbers are set to increase dramatically when the new system of Lay Magistrates comes into effect.

Merging of Roles

As you all know the office of Lay Panel Member is being dispensed with and a new office of Lay Magistrate is being created. The new office will incorporate the duties and responsibilities of Lay Panel Members together with the judicial powers of Justice of the Peace. Before looking at new powers and responsibilities I want to take a few moments to consider the origins of Justices of the Peace.

The History of Justices of the Peace

England and Wales

Justices of the Peace have their origins in the reign of Richard I. In 1195 AD the then Archbishop of Canterbury, Sir Hubert Walter, under the King’s authority commissioned certain knights to preserve the peace in unruly areas and brought them into the administrative framework. They were mainly drawn from the new class of tradesmen that emerged and had close personal ties with the areas in which they operated. They were responsible to the King for ensuring that the law was upheld. They preserved “the King’s Peace” and were known as Keepers of the Peace.

In 1264 Simon de Montfort appointed men to keep order in their area but as early as 1287 they had lost their military commands. Their peacekeeping duties were confined to enforcing the Statute of Winchester of 1285^{^[2]}. The title Justice of the Peace first appeared in 1361 during the reign of Edward III. By this time JPs had been transformed into judicial officers having been given the power to arrest offenders and suspects. They could investigate crime and in 1382, were given the power to punish and had important administrative functions.

Ireland

In 1171 Henry II invaded Ireland, crushed the power of the Norman nobles, declared his lordship over the country and returned to England leaving Ireland to be governed by his henchmen according to the principles of Common Law.

In Ireland Keepers of the Peace retained their military characteristics for nearly 200 years longer than in England. Although their judicial functions were limited the Keepers started to acquire certain administrative duties during the 15^th century. They conducted inquiries into the cases of labourers and servants who were leaving the country, determined the rates at which foreign coins were brought into Ireland, enquired into breaches of the regulations governing the importation of cloth and the prices of boots and shoes and imprisoned those who did not pay fines.

By the 17^th century Justices of the Peace had become widely established in Ireland. In the 18^th century the Irish Justices began to sit in Petty Sessions. In 1825 Parliament passed an Act to fix Justices in counties, cities and towns divided into districts and to fix a place in each of them where Petty Sessions were to be held. The Act also provided for the appointment of a clerk to the Justices.

The office of Assistant Barrister was created in 1787. Their role was to give the Justices expert legal advice at their Courts of Sessions. The office was originally designed to be a short-term rural response to a lack of legal understanding. However the role developed and what began as merely a legal adviser soon became a key judicial position. This role was later to develop in Northern Ireland into that of County Court Judge, following the setting up a separate jurisdiction in Northern Ireland in 1921.

The Constabulary Act of 1836 introduced new provisions to deal with absentee Lord Lieutenants and Governors. Special magistrates were appointed to deal with these matters and were awarded a minimum salary of £400. These magistrates came to be known as Resident Magistrates as they were required to reside within the area for which they were appointed. For a time their role was to assist JPs to administer the law but like the office of Assistant Barrister they soon came to play a leading role, presiding at Petty Sessions when present. The Summary Jurisdiction and Criminal Justice (NI) Act based the magisterial structure in Ulster upon the office of the RM and in 1935 most of the judicial work was transferred to them.

With the passing of this Act the work of the Justices became limited mainly to out-of-court work. The most prevalent work was the signing of summonses, affidavits, search warrants and arrest warrants. Some JPs sat (and still sit) in special courts.

Changing Roles

As noted above, the Criminal Justice Review recommended that an office of Lay Magistrate be created. The criminal duties performed by JPs will transfer to Lay Magistrates. Those who are existing members of the Juvenile Lay Panel and who elect to transfer to the new post will automatically assume the title and role. Those Lay Panellists who transfer will be given training in the criminal duties formerly exercised by JPs.

The office of Lay Magistrate will no longer be a public appointment but will become a judicial office. The appointment will be made by the Lord Chancellor on the recommendation of the Judicial Appointments Commission.

The Criminal Justice Review considered the abolition of the role of Justice of the Peace. However, the title of JP is for life and cannot be taken away. While JPs will lose their judicial functions they will retain their non-judicial functions. JPs will not automatically become Lay Magistrates but they will be eligible to apply in response to open advertising in the press.

The recruitment process will be seeking to create a balanced and representative body and reach an untapped pool of potential candidates. To this end it will

1. establish and advertise the criteria for appointment to ensure that those who apply and are successful have the right skills and abilities;

2. have selection processes that include open advertising, published criteria, and structured interviews for appointment;

3. promote a strategy of equal opportunity and outreach that will broaden the pool of potential candidates for all parts of the community;

4. look at methods of identifying and if possible addressing the factors that might make it more difficult for candidates from particular sections to apply for appointment.

The Criminal Justice Review recommends that the age range covered by the Youth Court should be widened to include 17 year olds and it estimates that this may increase the workload of the Court by 50%. It is impossible to say at this point what impact the introduction of Family Group Conferencing will have on court business. For both these reasons it is a little difficult to estimate the exact number of Lay Magistrates who will be required, with guesstimates varying from 350 to 500. It is likely that recruitment will be in stages.

Successful applicants who meet the criteria will be called for interview. The interviews will be merit based and structured. They will be conducted by trained interviewers. Those who are successful will be asked to sign a contract to demonstrate their commitment and to ensure that the locally organised rotas can rely on their allocation of magistrates to meet the demands of the position. Training will be mandatory and will be structured and organised by a subsection of the Judicial Studies Board.

Once the new system is up and running the judicial work for Lay Magistrates will be

· first remand hearings in special courts

· hearing complaints with a view to issuing warrants and summonses

· sitting as Magistrates in Youth Courts and Family Proceedings Courts and as assessors in appeals to the County Court.

a) The changing lives of young people

Since the 1980s, changes in the lives of young people have increased the risk of their involvement in violent and criminal behaviour. This seems particularly the case in the rapidly changing societies in many Central and Eastern European countries. The most important changes are:

- the rise in child poverty and income inequality, especially in Central and Eastern Europe

- the greater incidence of divorce and family breakdown and the impact this has on parenting

- the growth in experimentation, at an increasingly young age, with psychoactive substances, including alcohol

- the decline of the youth labour market and the rise in unemployment among young adults, particularly young men and those with low skill levels

- the increasing concentration of social and economic problems and related crime and violence in specific areas, often inner cities or housing estates on the periphery of urban conglomerations

- the mass migration of ethnic minorities into and within Europe and

- the increased risk of psycho-social disorders among young people, especially young men.

b) The changing nature of crime and delinquency

There is a widespread belief amongst the public at large, not based on scientific evidence, that there has been a dramatic increase in youth offending. There is a general perception that offences involving violence are increasing, that offenders are starting to offend earlier and that a small number of offenders are responsible for the majority of offences.

Traditional sources of informal social control, particularly schools, families and the workplace, no longer have the impact they once had.

There is concern that the juvenile justice system is slow, ineffective and over-burdened. Delays are commonplace, public confidence is low and re-offending rates are high. At the same time, the expectations placed on the criminal justice system have increased.

These developments seem to have led, at least in a few member states, to a more repressive approach, which is reflected in higher rates of custody for juveniles and a shift from a welfare (needs-led) model to a justice (punishment or ‘just deserts’) model.

c) Advances in Scientific research:

At the same time, research tells us more about the causes of crime and also that some interventions can work with some young offenders some of the time. Experiments with alternative approaches to dealing with juvenile offenders, such as restorative justice and intensive, community-based support and supervision, suggest that there are ways of supplementing the more traditional approaches which could improve our response to juvenile crime and violence.

d) The accession of new member states:

The Council of Europe has almost doubled in size over the last decade and now has 45 member states. The new member states all come from Central and Eastern Europe. They are confronted with similar problems as Western European countries, but also have to deal with specific problems related to their own domestic situation. Resources are much more limited. Some new member states are struggling to implement existing international standards. For them the most pressing issues are the provision of adequate capacity and the quality of such provision.

An Expert Committee

An Expert Committee, drawn from 22 member states as well as from 3 observing parties (Canada, the International Association of Youth and Family Judges and Magistrates (IAYFJM) and the Permanent European Conference on Probation and Aftercare (CEP)) was invited to address these problems and to bring forward a new recommendation.

The Committee upheld the following Principles laid down in R (87) 20

- The youth justice system should avoid repressive approaches and focus on education and reintegration;

- Depriving children of their liberty should only be used as a last resort and, as far as possible, interventions should be carried out in the child’s home environment.

- Children should at least receive the same level of procedural safeguards as adults;

- The youth justice system is only part of the overall response to youth crime.

The Committee identified a number of key principles

Ø The response to youth offending should be swift, early and consistent

Ø The responsibility for offending behaviour be widened to include the young offender’s parent(s)

Ø As far as possible and where appropriate, interventions with young offenders should include reparation to victims and/or to their communities

Ø Interventions should directly address offending behaviour and

Ø Interventions should be informed, as far as possible, by scientific evidence on effectiveness

Recommendation Rec(2003)20 calls for

Ø A multi-agency approach to dealing with young offenders

Ø A continued search for alternatives to custody

Ø The recognition of victim’s interests

Ø The use of evidence-based interventions

Ø The desire to involve parents

Ø The need to produce race impact statements alongside policy plans

A more strategic approach

Juvenile justice in Europe has no common vision or philosophy. Some countries have ‘welfare’ based models focusing on the needs of the juvenile, others have ‘justice’ models emphasising retribution and public protection.

In practice, juvenile justice systems should meet both the welfare needs of the young offender and the protective and retributive needs of society. This, however, undermines public confidence in the capacity of the system and its practitioners to effectively deal with juvenile crime.

There is a need for a common, public vision and purpose, constructed around three principles that reflect the best interests of young offenders, their victims and the public:

1. prevention of offending;

2. reintegration of the offender;

3. reparation to compensate for wrongdoing.

Working together

Juvenile crime cannot be tackled by the juvenile justice system alone. Using the law as the only tool for tackling crime limits society’s capacity to control and prevent criminal behaviour. Studies on the causes of crime confirm families, schools, local neighbourhoods and peer groups as key influences on delinquent behaviour. They all have important roles to play in its prevention.

Target groups

Recommendation Rec(2003)20 addresses several target groups.

Young persistent and serious offenders, in particular, are responsible for a large amount of crime and have a disproportionate impact on their families and local communities. They often have multiple needs and inter-connected problems (drug misuse, truancy from school or problems at home). These need to be tackled together by a juvenile justice system that includes local agencies that can address wider contextual factors to reduce the risk of offending and re-offending.

There is also special concern about drug-related offending and the increasing prevalence of drug and alcohol misuse amongst children and young people. Recommendation Rec(2003)20 supports specific measures developed in some countries for treating drug and alcohol misuse and dealing with related crime, such as diverting problem drug users from prosecution under the condition that they agree to undertake treatment and accept testing that they remain drug free.

The Expert Committee expressed concern at the disproportionate representation of offenders from minority ethnic communities at each stage of the criminal justice system, from arrest through to custody. This may be partly explained by higher offending rates, which in turn may be due to higher exposure to poverty and social exclusion, but may also reflect discrimination.

Other target groups addressed are young people who offend in groups, young female offenders and young children under the age of criminal responsibility.

Effectively intervening

Petty and first time offenders should continue to be diverted from formal prosecution.

New ways of effectively dealing with serious and persistent offenders are emerging and there is now scope for cautious optimism.

Very little is known about the effectiveness of interventions designed specifically for young women, ethnic minorities and migrants. This needs to be addressed.

Race impact statements

To reduce the risk of discrimination the expert committee believes that it may help if public authorities are required to monitor the impact of justice reforms and practices on equality. They can do this by preparing a statement setting out how the needs of ethnic minorities have been taken into consideration and what procedures and safeguards have been put in place to ensure that the new reform does not inadvertently discriminate against them.

New responses

Recommendation Rec(2003)20 proposes a series of new responses.

1. Expanding the range of suitable alternatives to formal prosecution should continue to be developed. They must adhere to the principle of proportionality, reflect the best interests of the juvenile and apply only in cases where responsibility is freely accepted.

2. To address serious, violent and persistent juvenile offending, member states should develop a broader spectrum of new, more effective (but still proportional) community sanctions and measures. They should directly address offending behaviour as well as the needs of the offender. They should also involve the offender’s parents or other legal guardian (unless this is considered counter-productive) and, where possible and appropriate, deliver mediation, restoration and reparation to the victim.

3. Culpability should reflect better the age and maturity of the offender, be more in step with the offender’s stage of development, with criminal measures being progressively applied as individual responsibility increases.

4. Parents (or legal guardians) should be encouraged to take greater responsibility for the offending behaviour of younger children. They should attend court proceedings (unless this is considered counter-productive) and, where possible, they should be offered help, support and guidance. They should be required, where appropriate, to attend counselling or parent training courses, ensure their child attends school and assist official agencies in carrying out community sanctions and measures.

5. Reflecting the extended transition to adulthood, young adults under the age of 21 should be adjudicated and sentenced as juveniles and be subject to the same interventions, unless deemed by the court to be as mature and responsible for their actions as a full adult.

6. To facilitate their entry into the labour market, young adult offenders under the age of 21 should not be required to disclose their criminal record to prospective employers, other than in exceptional circumstances.

7. Instruments for assessing the risk of future re-offending should be developed in order that the nature, intensity and duration of interventions can be closely matched to the risk of re-offending, as well as the needs of the offender, always bearing in mind the principle of proportionality. Where appropriate, relevant agencies should be encouraged to share information, but always in accordance with the requirements of data protection legislation.

8. Time limits for each stage of criminal proceedings should be set to reduce delays and ensure the swiftest possible response to juvenile offending. In all cases, measures to speed up justice and improve effectiveness should be balanced with the requirements of due process.

9. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed in a manner that ensures their full understanding of their rights and safeguards. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian. They should also have the right to access a medical doctor. They should not be detained in police custody for longer than 48 hours in total and for younger offenders every effort should be made to reduce this time further.

10. When, as a last resort, juvenile suspects are remanded in custody, this should not be for longer than six months up to trial commencement. This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in proceedings are fully justified by exceptional circumstances.

11. Where possible, alternatives to remand in custody for juvenile suspects should be used, such as placements with relatives, foster families or other forms of supported accommodation. Custodial remands should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures.

12. In considering whether to prevent further offending by remanding a juvenile suspect in custody, courts should undertake a full risk assessment based on comprehensive and reliable information on the young person’s personal and social circumstances.

13. Preparation for the release of juveniles deprived of their liberty should begin on the first day of their sentence. A full needs and risk assessment should inform a reintegration plan, which fully prepares offenders for release by addressing in a co-ordinated manner their education, employment, income, health, housing, supervision and family and community-related needs.

14. A phased approach to reintegration should be adopted, using periods of leave, open institutions, early release on licence and resettlement units. Resources should be invested in the provision of reintegration post-release that, in all cases, should be planned and carried out with the close co-operation of outside agencies.

European Rules for Minors

It is important to note that Recommendation Rec(2003)20 presents a set of standards for policies, legislation and practices in the field of juvenile justice, but does not contain any provisions on the treatment of juveniles in prison or subject to community sanctions and measures. Therefore, the Recommendation Rec(2003)20 highlights the need to develop separate and distinctive European Rules for juveniles deprived of their liberty or subject to community sanctions and measures.

Implementation, Rights and Safeguards, Monitoring, Evaluations and Information Dissemination

Recommendation Rec(2003)20 finishes with a number of paragraphs on implementation, rights and safeguards, and monitoring, evaluation and dissemination.

^{^[1]} The 1908 Act was prior to partition and extended to GB and the island of Ireland.

^{^[2]} In 1285, during King Edward the First's reign, the Statute of Winchester, probably the earliest piece of road legislation, ordered ...that highways leading from one market town to another shall be enlarged where as bushes, woods, or dykes be, so that there be neither dyke nor bush whereby a man may lurk to do hurt within two hundred feet of the one side and two hundred feet of the other side of the way. It is not at all clear who was responsible for the maintenance of this clearance. However, the Statute of Winchester was not just about roads but a wide-ranging act dealing with local policing. The Statute regularized custom and practice from Saxon times concerning night watchmen and the responsibility of tythings, or groups of about ten households, and hundreds, the groups of ten tythings, for maintaining law and order.

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Editorial: The Right To Education: A Fundamental Human Right	2

New Initiatives In Youth Justice Janet Leckey	8

The Voice Of The Child In Domestic Violence Cases Eleanor ONeill	16

The Evolution of the Lay Magistracy in Northern Ireland Willie McCarney, Hugh Ritchie, Frank Edgar and Marguerite Faulkner	19

International Developments in Youth Justice Willie McCarney	31

THE VOICE OF THE CHILD IN DOMESTIC VIOLENCE CASES