Summary Justice and the Criminalisation of Children

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Summary Justice and the Criminalisation of Children

Homeless Crisis

Rod Morgan, Professor of Criminal Justice at the University of Bristol, has released a report, Summary justice: Fast – but Fair? for the Centre for Crime and Justice Studies.

Quoting former Prime Minister Tony Blair from a speech to launch of a "Respect and Parenting Order Task Force", in September 2005, he says in the introduction:

"The criminal justice measures taken in which the government took pride ‘have one thing in common: they bypass the traditional way the criminal justice system used to work ... the rules of the game have changed’ (Blair, 2005). The bypass involved greater use of summary justice."

This declaration, that "the rules of the game have changed", was made at almost exactly the same time in the wake of 7/7 as a pretext for a new assault on basic democratic rights. By using this phrase here, Blair was consciously connecting "youth crime" with "terrorism" and "extremism", bringing it into the sphere of the "war on terror".

Describing summary justice, Morgan says that, firstly: "It has always meant proceedings in a court of law carried out rapidly by the omission of certain formalities as required by the common law. In the eighteenth century it meant ‘performed or effected by a short method, done without delay’ (Oxford English Dictionary)".

Secondly, "summary justice can also mean vigilante justice", while thirdly, "in recent times, there has emerged a third form of summary justice, that involving recourse to the law, but not the courts – what we may term pre-court summary justice. Decision-making here rests with the police and the Crown Prosecution Service (CPS)." In his review, Morgan is wholly concerned with "the developing arena of pre-court summary justice".

The first chapter of the report is entitled "New Labour and summary justice". As Morgan tells us:

"The fullest statement of the government’s case for and philosophy regarding the expansion of summary justice was provided in the 2006 position paper, Doing Law Differently, by the then Lord Chancellor, Lord Falconer. His argument was as follows.

"Public confidence in the criminal justice system is critical to its effective working … He asserted that public confidence in the system had fallen [the evidence for which is equivocal according to Morgan; it depends on what questions are asked, for example] …

"The solution, he contended, was to ‘connect the instance of crime much more quickly and directly with the consequences of crime’, a process:

"‘… in which summary justice plays a much greater part … Some anti-social behaviour and other less serious crimes, such as certain cases of criminal damage, theft or public order offences, do not need to come to court if the defendant admits guilt and is willing to make reparation to the victim, accept a fine, pay compensation, go for drug treatment or carry out unpaid work. Many cases can be diverted out of court and dealt with by the use of fixed-penalty notices or conditional cautioning pilots.’"

In the next chapter, Morgan explains the government’s case for extending pre-court summary justice. Essentially:

"The courts will not be cluttered with relatively minor offenders and offences that can more effectively, speedily and proportionately be dealt with by police, prosecutorial or other authority figures … ‘the visible punishment ... sends a signal to the wider community that the behaviour is being tackled and not tolerated’ [quoting a Home Office paper] thereby increasing public confidence in the criminal justice system generally."

The government’s whole thesis is that there is a balance to be struck between the rights of the accused (before guilt is proven) and security or "confidence in the system", as well as for speed and "efficiency". In line with this, "safeguards" are supposed to be in place. Lord Falconer is again quoted:

"The defendant needs proper protection against injustice within the system, but our aim should be a system that will allow the court to know what happened and a process that will be driven by the substantive merits of the case, not the exploitation of safeguards. If the case is to proceed to trial, courts have a proactive role to ensure the prosecution and defence have the case ready in a timely fashion. The defendant should not have pressure put on them but, where the weight of evidence is against him or her, they should be given every opportunity to admit their guilt and allow the matter to be resolved quickly." [Our emphasis]

The argument is one of "on the one hand there is the need for protection, but this can’t be exploited; the matter needs to be resolved quickly; etc."

The argument is then followed with straightforward arbitrariness: "Some anti-social behaviour and other less serious crimes … do not need to come to court". Falconer’s claims do not need to be justified other than by proceeding them with the above theory of balance.

Detailing some of the objections that have been raised from within the establishment, Morgan quotes Lord Justice Leveson who raises the issue of accountability. Up to the present date, the conditions attached to a conditional caution have been entirely rehabilitative and restorative. But the legislation now goes further. The Police and Justice Act 2006, s.17, provides for conditions, not yet in force, to punish or penalise the offender. Speaking about what a young person might accept rather than risk going to court, Leveson asked, "Where is the mechanism for accountability for these important decisions, taken behind closed doors?" Further: "It goes back to the origins of our system of summary justice, carried out in public by members of the public, appointed as magistrates, whose decisions can be scrutinised by the public, can be the subject of public debate and, if appropriate, appeal to the court in public."

Morgan summarises such concerns as follows:

"They relate to the gradual abrogation of the role of the summary courts to decide the appropriate punishment of criminal cases, which, though not of the most serious kind, may nonetheless be relatively serious and have serious consequences. Further, this abrogation in favour of the police, prosecutors or other authority figures appears to be undertaken in a relatively unaccountable manner and in circumstances where defendants may feel under pressure to admit matters that they possibly should not admit."

Morgan closes the second chapter speaking about increased criminalisation:

"… it has been argued by some commentators that these summary powers are less displacing the role of the courts and more dragging into the criminal justice system offenders and offending behaviour that would not previously have been criminalised. This, it is argued, is particularly the case with regard to children and young people, whose offences are typically minor in nature and are committed in groups in public places, thus being supremely easy for the police to process if they decide to do so … here it is suggested that reprimands, final warnings or PNDs [Penalty Notices for Disorder] are being used in circumstances where informal warnings or controls were formerly applied."

This suggests that "net-widening" is occurring, "in the sense that more offenders and behaviours are being criminalised than was formerly the case". Morgan presents an analysis of data in the following chapter implying that this is indeed the case.

Morgan argues that "there is a need for a thoroughgoing review" and draws the following conclusions:

"First, it is clear from the published statistics that the expansion of pre-court summary justice has, as the government intended, displaced some court business and that most of the cases displaced have been at the minor end of the seriousness spectrum. But has that invariably been the case? Are relatively serious cases, which arguably merit the attention of the courts, being dealt with pre-court? …

"Second, it is clear from the published evidence that extensive net-widening has occurred over the past five or six years in the sense that many more children, young people and adults have been drawn into the criminal justice system, mostly through the use of precourt sanctions. …

"This leads, third, to various questions relating to the principles of proportionality of imposition and procedural justice which the widening scope of summary justice raises. … The decisions are made in police, prosecutorial and other offices rather than open court and … There is an accountability deficit here which requires remedy.

"The proliferation of pre-court summary justice options also raises the question as to whether persons incurring such penalties either do or should incur cumulative punitive consequences. It is, for example, arguably perverse that children and young persons, for whom cautions were originally introduced to divert them from court proceedings, must be brought before the court, no matter how minor their subsequent offence, if they have received a final warning … whereas an adult is technically capable of receiving repeat cautions as well as being subject to the other pre-court options now available. What is the logical basis for that distinction …? Or, to take another angle, should not a distinction be made in this regard between children, for whom criminalisation should, according to our international treaty obligations, be ‘a last resort’ (UN Convention on the Right of the Child 1989, Article 37b), and adults."

An indication of the extent of criminalisation of children has been exposed in figures recently reported in The Independent showing that more than 1000 young people have been jailed for an average of 6 months each for breaching anti-social behaviour orders (ASBOs). 986 children aged 10 to 17 were jailed between 2000, when the orders were introduced and the end of 2006. Another 300 to 400 are thought to be added to that total in over the following two years up to the present. Almost half of those locked up for breaching their ASBOs have been jailed for four months. The average sentence was 6.4 months, compared with the 4.9 months handed to adults. It is also reported that 30% of children given ASBOs have been diagnosed with mental health problems or learning difficulties.

Meanwhile, an article in The Guardian demonstrates the direction in which summary justice is moving. Amnesty International is reported as voicing concern as the use of Taser guns grows. The weapon has been used on nearly 2,700 occasions since they were first introduced in England and Wales in 2004, according to Home Office figures.

The figures show that those incidents included 834 occasions in which the guns were "discharged", which involves delivering a disabling shock by firing two electric barbs up to 35ft (10.5 metres). On a further 115 occasions police officers used the Taser for a "drive stun", when the gun is pressed against the person and fired like a cattle prod, it is reported.

Though called a "less-lethal" weapon, the Taser delivers a 50,000-volt electric shock into a person’s body. Amnesty International called for them to be banned in Canada last November after four people died from the weapon.

Again the theory of balance is raised. The Home Office minister, Tony McNulty, defended their use: "Tasers have contributed to resolving incidents without injury where otherwise there would have been a real possibility of someone being seriously injured or killed."

Amnesty’s arms programme director, Oliver Sprague, countered: "Of course the police have a duty to protect themselves and the community from violent situations, but arming more officers with dangerous weapons without the rigorous training and necessary safeguards could well be a recipe for disaster."

The criminalisation of children must be opposed. The dangerous extensions of summary justice whereby the police are being promoted to the level of judge, jury and even executioner must be reversed. Children must not be fast-tracked to criminalisation and subject to pressure; they have a right to due process, a process that must be fully accountable. The "rules of the game" have not changed!

It is the outlook of balance between the rights of individuals and collectives and "security" that prevails throughout the establishment, which is being used and pushed further by the government, leading to these crimes against the youth. We can settle scores with this outlook and provide solutions by upholding the principle that our security lies in our fight for the rights of all. The rights of the youth not to be criminalised, injured and killed; their rights to culture, education, health and to fully participate in society need to be guaranteed and provided with the necessary investment for their realisation. Only on this basis can the consequences of social decay be eliminated and the security of all be found.

Letter to the Editor:

Dear Comrades

Just a few lines telling of the threat of closure of homeless charities, which will be a setback for the homeless.

As Gerry Warren reports in the Kentish Gazette of September 11:

‘A financial crisis is theatening the Scrine Foundation charity for the homeless in Canterbury. More than 100 people living in properties managed by the charity could be forced back onto the streets and nearly 70 full and part-time staff could lose their jobs. It follows a decision by the city council’s housing benefits office to drastically cut payments to the charity’s clients. The money is a vital income stream for Scrine, which rents 23 properties from commercial landlords around the city and owns a 20-bed shelter at Palmer House in Station Road East. But the level of rent charged by the charity – up to £310 a week – has been investigated by the city council’s housing benefit office, which says it is excessive. It now intends to impose the flat rate of housing allowance for a single person of £65.77 a week from next week.

‘James Walker, chairman of the trustees for the Scrine Foundation, described the charity’s situation as "catastrophic" and warned it could close its doors within a week. He said: "The revenue from our clients’ housing benefit is our main income stream. We don’t have any other liquid assets. We are taking legal advice to see if we can extend the deadline because we were given just 14 days’ notice of this decision."

‘The investigation into housing benefits claimed by clients of the Scrine Foundation was launched by the city council’s benefits office two years ago, after the charity significantly increased the rents it charged to people living in its managed properties. In some cases they rose by nearly 90 per cent – for example at Palmer House where the cost of a bed went up from £152 to £287 a week.

‘Head of revenues and benefits at the city council, Andrew Stevens, said: "We have a legal duty to ensure that housing benefit is being paid correctly based on the circumstances of each case. The very substantial rise in the rents charged, along with relevant and emerging case law similar to the Scrine properties meant we had to carefully consider the circumstances of housing benefit claims at these properties."

‘It has resulted in the benefit for all clients being recalculated to £65.77 which is the standard local housing allowance for a single person.’

This is what the news report had to say. We feel that to take rent from the homeless is itself unjust. The charity is giving help the best way it can. But now even the workers at the charity are having to lose their jobs.

In a just society, a government would take responsibility for meeting the right of the homeless to accommodation. The workers themselves would hold the answer. This threat to close the charity represents just another cutback by the government, at national and local levels, which have no desire to see a way of overcoming the plight of the homeless. Once again, we would like to emphasise that the answer is with the workers taking control of the situation.

Yours fraternally, readers in Canterbury