Kilbrandon: Punitive approach to justice in Scotland.

This essay will critically evaluate the Kilbrandon ethos and will examine the proposed integrative, welfare-orientated approach in the decision making concerning children and their welfare. It will also take into account the recent moves towards a more punitive approach and the response concerning this modification. The Kilbrandon Report was established in 1964 by Lord Kilbrandon. Kilbrandon reviewed the existing juvenile justice system and felt the need to implement a new innovative radical approach to help deal with the existing juvenile delinquency and school truanting in Scotland. By analysing the courts records of child offenders the aforementioned highlighted that the majority of those individuals came from unfortunate backgrounds and may possibly have experienced various situations within their young lives. (Lockyer, A. & Stone, F.H. 1998)

It is necessary to look at where the child centred approach arose from and what this meant for the criminal justice system as a whole. The 1908 Children’s Act (UK) was known as the first Children’s Charter in Scotland due to the impact it had and the concern it showed for children’s individual rights. As a result of this act the death sentence was abolished for children and imprisonment for children dealt with in a more acceptable manner. The separation of juvenile and adults courts was looked upon as the way forward by means of looking at children’s needs in a more specific manner, thus forming the basis of child protection. The idea behind child protection was to protect them from harm, neglect or cruelty however; this sometimes meant having to remove the child from the family home. Over the next few years there were various areas of progress which led to the evolvement of the Children and Young Persons (S) Act 1937. This act defined a child as being under the age of 14 and the criminal responsibility age rose from seven years to eight years of age. The criminal age in Scotland has risen to 12 years of age 10 for the rest of the UK. A child aged between 14 and 17 was then known as a ‘young person’. The 1937 act saw the separation of children and young people and implemented different ways in dealing with various behaviours or offending. (Hothersall, S. 2005)

The post war years saw a number of issues surface and prompted the government to take action in regards to their stance on dealing with the welfare of children and young people within society.

In 1961 Lord Kilbrandon proposed to implement a new welfare based system which was produced in 1964 and which was included into legislation by 1968, this approach would take a holistic approach to those matters which caused the greatest concern of that of children and young people within society. The primary aim was to focus on children who were in need of help or care, persistent truants or beyond the control of their parents. His approach would examine how offending issues and how the lack of social education had played a vital role in juvenile offending and deviant behaviour. As a result of this the recommendation by the committee it was put forward which would form the basis of the Social Work Act 1968. Their main aim was to recognise and take responsibility for community welfare; in conjunction with this the children’s hearing system would take society’s failures into consideration. (Action for children 2009)

Kilbrandon based his approach upon ‘needs not deeds’ and believed that those children who were brought before the justice system or who were in need of care warranted intervention and the prevention of criminalisation to avoid stigmatisation. His beliefs and principles were child centred and seen to be in the child’s best interest. (Mcara, L. 2005)

The main principle on which the ethos structure was based upon was by taking into regards any decision made in respects to the children’s welfare as it should be primarily based upon the best interests of the child and their overall needs. The system should not take into account what the child has done, past or present. The change to the system helped to define who was in need of compulsory measures of care regardless of whether they had been abused or had committed offences. (Muncie, J. & Goldson, B. 2006)

The welfare approach has the option to modify the approach in cases of serious offences. Each remedy is not always going to be the same as it is not possible due to the similar influences and demises in a child’s life. The Kilbrandon philosophy unfortunately attracts high expectations and sometimes these expectations can be thwarted.

Kilbrandons ethos is based on taking the child’s needs into consideration and trying to work with families and agencies to give the child the care and support they need and to try and keep families together as much as possible, sometimes this option is not possible. By using the forward thinking approach in regards to preventative measures it allows the child’s needs to be examined. So would introducing a more punitive system be the answer? Do children have to separate from their families to be rehabilitated and cared for? Helping with educational and behavioural problems would certainly be a challenge but would definitely help to build confidences and aid the principle of rehabilitation. Early intervention strategies could certainly prove useful in the prevention of further offending. (As cited in Croall, H. et al 2010)

By introducing the new innovative system Scotland was fast becoming a country with a unique children’s hearing system in place. The children’s hearing system was put together from three carefully selected volunteer lay members and trained volunteers from all walks of life and with varying life experiences from the local community. (SCRA)

The system furthermore involved the guidance of a trained individual, the Reporter who was required to give advice on procedures and legal issues concerning the hearing and oversee the overall hearing process. An important aspect when considering what decision has to be made comes from the understanding and the investigation of contributing factors leading to the child’s or families problems. The panel has to consider each aspect just as important as the next and by listening to the viewpoints of others involved can help make the decision process marginally easier. As the members of the lay party are from the local community it allows their input on the decision to be taken into consideration in conjunction with the involvement of detached professionals, the child’s family and the child’s own rights. (SCRA)

Although, Scotland has long been admired for its approach towards youth offending by working in conjunction with multi-agencies on a child centred approach its unique child welfare approach has at no time had its system reviewed. (Action for children, 2004). Times have changed and so has the challenges that children and young people face within society. Society has also seen a change in family circumstances which include divorce, single parent families, and alcohol and drug abuse problems. There are also the underlying factors to consider which may include child abuse, neglect, delinquency, truancy and poverty. As a consequence of this questions are arising as to whether the system Scotland has in place to deal with young offenders is still viable. In 2002 NCH Scotland carried out its own inquiry into Scotland’s hearing system and the results were made available in 2004 for evaluation. The inquiry did however highlight the fact that the system itself was solid nevertheless; there were a number of recommendations put forward to help with certain weaknesses within the system. (Action for children, 2004).

According to SACRO the children’s hearing system is not failing but they suggest however, due to the lack of resources available this is having an adverse effect on the effectiveness of the overall system. SACRO also believe that there should be a single system in place to take on a holistic overview of the issues involved instead on focusing primarily on a welfarist approach. By introducing a more effective element of restorative justice this may well assist in allowing the youth justice system to achieve this aspect of concern. (SACRO )

The perceived strengths of the Kilbrandon report includes various aspects which most individuals today would consider as expected however, there are those who may feel that the system is ‘too soft’ and could be more punitive. The strengths of the report include: needs and deeds, a holistic approach, child centred and welfare focused, an informal hearing system, protection of children and young people, multi-agency working including the family where possible and dealing with care and protection issues of the children and young people. (Phillips, S. 2008)

However, the report does highlight various weaknesses which include: the lack of resources available, the families’ lack of knowledge in relation to the system and the lack of the panels understanding of the families. Poorly trained panel members, some families not being included in the decision making, lack of social workers and also the formality of the system can be intimidating for the children and young people involved. One major concern is the fact that the system does not work successfully when it is dealing with school related issues including truanting and school refusal.

An important issue that has an impact on the justice system is the financial backing as this has been said to have an adverse effect on the youth justice system. (Muncie, J. 2004)

So what exactly is Justice? Justice is regarded as what has the best consequences. Created by the public and authorities it is enforceable rules and legislations, it is there to protect society by showing what is fair and what is wrong and the latter resulting in punishment. Justice itself is there to be enforced upon when groups or individuals need it to be. However, Justice for children can be looked upon as providing the opportunity of equality to help the child or young person improve their prospects in prospective safe and caring surroundings. (Goldson, B. 2008)

An important issue that has become apparent over the years is the large increase of referrals in relation to care and protection cases compared to that of offending within the children’s hearing system. The NCH enquiry 2002 highlighted the need for the mainstream and preventative services to improve efficiencies and address the number of cases being sent to the children’s hearing system. (Action for children, 2004)

When examining the alternative systems of dealing with young offenders in Scotland the NCH 2002 enquiry compared Scotland’s system to that of England and Wales. Both of these countries are seen to have a more punitive approach when dealing with youth justice.

The results indicated a higher number of young offenders detained within prison establishments, and a higher number of deterrents and confinement orders in place in relation to working towards rehabilitation in comparison with Scotland. The figures gathered indicated an overall increase of 800% of twelve to fourteen years over a ten year period due to the increase of sentences and imposition prison placed on these young people in England and Wales. However, the adverse effect of these figures is the fact that many of these young people may find themselves segregated from others, bullied or may be more likely to self-harm. The NCH looked at these figures not as a success towards offending behaviour as the recidivism rate in England and Wales was between 72/90%, but alternatively as unsuitable and an ineffective form of punitive punishment for children and young people.

They believe that the more a child is punished by the justice system the more likely the chance of the child becoming further involved within the justice system itself and only adding to the likely hood of reoffending in the future. (Action for children, 2004)

Implementing a more punitive approach within Scotland’s youth justice system would also prove to be costly as the figures indicated that in 2002 England and Wales spent in the region of £207 million on custodial sentences compared to that of their community based community rehabilitation programmes which cost £76 million. The cost itself made the copying of their punitive approach an undesirable option for Scotland. (Action for children, 2004)

The NCHs report in 2002 recommended that the Children’s hearing system continue to reach its full potential and by continuing to use its holistic and understanding approach when dealing with children and young people it would no doubt be more effective than introducing a more punitive approach. (Action for children, 2004)

What has become clearer over the years is the matter of dealing with young people aged between 16 and 17 years of age. In 2004 Scotland introduced two pilot youth courts one in Hamilton and one in Airdrie. Their main aim was to tackle youth crime in a more effective and severe manner.

The objectives included social inclusion, reduction of the offending frequency of 16 and 17 year olds and the seriousness of their crimes. A fast track procedure was put in place for those individuals appearing before the youth court. By testing the existing legislation the courts would be able to demonstrate their effectiveness and whether deemed appropriate when dealing with young offenders. Overall the prospect of youth courts looked at enhancing safety within the community and dealing with those involved in persistent offending within high crime areas. (The Scottish Government, 2006)

An evaluation between June 2003 and December 2004 of Hamilton youth court recorded a total of 611 cases 402 of those cases involved young people. Airdrie youth court was evaluated between June 2004 and December 2005 and a total of 543 cases were recorded of which 341 involved young people. Those involved were aged between 16 and 17 years of age and were primarily male who were prosecuted on single occasions. (The Scottish Government, 2006)

Most of those who appeared before the youth courts had low attainment levels and many admitted to drink or drug misuse. Cases brought before the youth courts included assault, possession of drugs, carrying of offensive weapons or most commonly breach of the peace. Most of the young people who appeared before the youth court were granted bail or ordained to appear before the court. Sentencing of young people included the use of electronic monitoring (tagging) as a condition of their bail release or they may have incurred a police monitored curfew. (The Scottish Government, 2006)

The overall analysis of the youth court pilot scheme in Airdrie indicated that the use of community based social work disposals dropped and the execution of prison sentences rose. However, in Hamilton there was not a noticeable difference in the use of disposals highlighting the fact that community service and detention issues were better served within the youth court rather than the Sherriff court. Through the introduction of these youth courts they have proved a success when dealing with young people and they are receiving a wider range of resources and services. Nevertheless, the report has suggested that there is a need for further clarity to determine who exactly the youth courts are for. (The Scottish Government, 2006)

According to Barnett 1977 ‘the main objective in dealing with offenders should not be to punish, not even to re-educate but to repair or to compensate for the harm caused by the offence’ (as cited in Lockyer, A & Stone, F.H 1998, p248)

Believers in restorative justice consider this type of scheme useful when dealing with young offenders. By focusing on the damage the crime has caused an individual or a community it could work towards resolving and restoring the damage caused. The main aim of restorative justice is to primarily concentrate on the victim and not the offender although measures will be incorporated to aid the integration the offender back into the community. However, merging the Kilbrandon philosophy and restorative justice measures for some may raise concerns. (Lockyer, A & Stone, F.H 1998)

The Kilbrandon Ethos is humane and provides a caring and understanding system for those children and young people involved in it. The fact that the system helps to support the child and rehabilitate when necessary enforces the child centred approach and by comparing the system to that of the one in England and Wales can only highlight the differences in relation to recidivism. The system needs to have the funding in place to help improve the service it offers at present. By providing the family with a proper understanding of the hearing system would allow the involvement with decision making. Overall the Kilbrandon approach deems to be more effective than imposing punitive measures. By further educating and improving communication within the various agencies would help improve the decisions made and the number of cases put before the system. What also has to be addressed is the vulnerable age group of those aged 16 and 17 years. They are not seen as children or adults and so the system needs to take into consideration the needs of this age group and deal with the young people in an effective and efficient manner.