The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Children in conflict with the law . . .
Asking the Hard Questions
International Association of Youth and Family Judges and Magistrates
XVII World Congress
Belfast, Northern Ireland, 31 August 2006
Judge Andrew Becroft
Principal Youth Court Judge
Te Kaiwhakawa Matua o Te Kooti Taiohi
Secondary school student physics exam
question:
Discover the height of this building using a small barometer?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Eight key questions to consider when
children come into conflict with the law
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
But first some “non-questions”...
“Givens” or “assumptions”
• Specialist legislation for child offenders
• A separate criminal Children’s/Youth Court
(or a Criminal Division of a multi-jurisdictional Children’s Court)
• Specialist “protections” for children/young people
eg: restrictions on police arrest, name suppression etc
• Specialists should deal with children in conflict with the law at
every stage of the process, eg specialist police, social workers,
child advocates/lawyers
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
1. At what age should children be held
criminally liable for their actions ?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
2. To what extent should child offending be
considered as raising care and protection
issues?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
3. Do all children who break the law need to
be charged and brought to Court?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
4. Should the state’s power to resolve child
offending be (partially) transferred to
families, victims & communities?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
5. Should children actively participate in
formal criminal processes?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
6. Should a child ever be transferred to the
adult criminal court for trial/sentence?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
7. Are our responses to young offenders
“evidence based” and consistent with best
international practice?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
8. What use should be made of prison and
detention centres for young offenders?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Outline
• Starting point: the need for a principled approach
• Eight issues
• Conclusion
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Who Am I?
I speak to you this morning in four capacities :-
• A former young person (like most of you!)
• A former lawyer
• A Judge
• A father
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
…as a father
Dear Dad
Whenever I have a problem I always follow your
advice…..
And ask Mum
Happy Father’s Day
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
1. A principled approach to child justice
• How children who break the law are dealt with is a test of a
nation’s maturity
• Children/young people are not “junior” adults;
they are adolescents & developmentally different in all respects
• Part of teenage years to test boundaries, take risks and challenge
authority
• Beware of a so-called “golden age” of the past (illusory), when
teenagers were not a challenge
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
1. A principled approach to child justice (cont)
• “There are a number of children running about the streets
of Dunedin … without the control of parents. If the
Government does not take them in hand … they will
become … members of a criminal class.”
• “There is a definite relationship between the increase in the
number of children on the streets and the increase in
juvenile crime.”
Headlines from The Otago Daily Times 1884 and 1886
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(from Dr Gabrielle Maxwell)
The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
A principled approach to child/youth
justice
• Child/youth justice is often a political football
• Subject to pendulum swings and populist pressures
• In western countries Youth Justice increasingly perceived
as “soft” and “ineffective”; not sufficiently “punitive
• There must be a principled approach
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
A Principled approach to Youth
Justice
• UNCROC is the most universally accepted human rights
document in history
• Provides fundamental guiding principles as to “trial”/
“treatment” “deeds”/“needs” of young offenders: Article
40 (clauses 3 & 4) is crucial
• Any discussion of child & youth justice must start here
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
2. Eight key questions to consider when
children come into conflict with the law
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
1. At what age should children be held
criminally liable for their actions ?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
1. At what age should children be held
criminally liable for their actions ?
• Wide disparity between various countries as to the age of
criminal responsibility
• Eg…Portugal = 16; England = 10
• UNCROC does not prescribe a specific minimum age
• UN Committee on Rights of the Child has criticised
jurisdictions in which the minimum age is 12 years or below
• Complex questions of maturation and development; cultural
norms may be involved
• A legitimate area of public debate
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
1. At what age should children be held
criminally liable for their actions ?
• “Doli incapax”, a rebuttable presumption that children are
criminally incapable, is a useful protection
• In New Zealand, the age of criminal liability is 10
• However, the only criminal offences for which a child
aged between 10 and 13 can be charged with are
murder and manslaughter
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
2. To what extent should young offending
be considered as raising care and
protection issues?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
2. To what extent should youth offending
be considered as raising care and
protection issues?
Perhaps the great issue of child/youth
criminal law??
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
2. To what extent should youth offending be considered as raising
care and protection issues? (cont)
Two conflicting issues arise
1. When, and on what basis, is offending by
children/young people to be viewed primarily as a
care and protection issue, and when is it to be
considered a criminal issue?
In other words, how do we avoid “criminalising”
behaviour that has at its centre, welfare/child
protection issues?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Associated Issues:
• How are care/ protection issues to be identified and
assessed?
• How is it established these issues are causative of
offending?
• This bears on the issue of the age of criminal
responsibility
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
2. Where young offenders are dealt with in the criminal
court, how should their care and protection needs be
dealt with?
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–
“Welfarising” the response?
–
Risk of prolonging proceedings?
–
Proportionality of response comprised?
The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
In New Zealand...
If at any stage in the proceedings, it appears to the
Youth Court that a young person may be in need of
“care and protection”……
the Youth Court may refer matters to a Care and
Protection Co-ordinator, adjourn proceedings, and
eventually discharge them absolutely.
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
3. Do all children who break the law need to
be charged and brought to Court?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
3. Do all young people who break the law
need to be charged and brought to Court?
• No
• Up to 80% of child offenders will offend only as
teenagers and will age out of offending with prompt,
firm, community-based intervention
• Laying charges, for that group, is counter-productive
• Diversion/ “alternative action” rates should be at least
80%?!
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Section 208(a): “Unless the public interest requires
otherwise, criminal proceedings should not be
instituted against a child or young person if there is
an alternative means of dealing with the matter”
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
• In New Zealand 76% - 84% of youth
offending dealt with by police supervised
“diversion”:– Formal warning & discussion with young
offenders and their families
– “alternative action”: prompt, firm, community
based accountability
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
0
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JULY 00JUNE 01
JULY 99JUNE 00
JULY 98JUNE 99
JULY 97JUNE 98
JULY 96JUNE 97
JULY 95JUNE 96
JULY 94JUNE 95
JULY 93JUNE 94
JULY 92JUNE 93
JULY 91JUNE 92
JULY 90JUNE 91
JULY 89JUNE 90
JULY 88JUNE 89
JULY 87JUNE 88
Rate
Figure 1: Diversion Rates per 10,000
distinct cases in Youth Court aged 10–16
years; 1987 to 2001
Cases
700
600
500
400
300
200
100
Cases
The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
4. Should the state’s power to deal with
offending be (partially) transferred to
families, victims and the community?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
4. Should the state’s power to resolve child
offending be (partially) transferred to
families, victims & communities?
• Family Group Conferences are used for all cases in the Youth Court
which are “not denied” or proved
• FGC’s attended by offender and his/her family; victim and supporters,
community supporters and “professionals”
• A plan is developed for approval and monitoring (for months or longer)
by the Youth Court. If completed usually there will be an absolute
discharge
• If no agreement, or agreement that formal Youth Court Orders are
required, Youth Court will make formal orders
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
4. Should the state’s power to resolve child offending
be (partially) transferred to families, victims &
communities?
Three key elements of the FGC process are:
1.
The partial transfer of power from the State, principally the
Courts’ power, to the community.
2.
The Family Group Conference as a mechanism for producing
a negotiated, community response.
3. The involvement of victims as key participants, making
possible a healing process for both offender and victim.
Judge Fred McElrea (NZ)
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
5. Should children actively participate in
formal criminal processes?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
6. Should a child ever be transferred to the
adult criminal court for trial/sentence?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
7. Are our responses to young offenders
“evidence based” and consistent with best
international practice?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
7. Are our responses to young offenders
“evidence based” and consistent with best
international practice?
We have never known more about what works
with young offenders and what doesn’t…….
For instance there seems to be two types of
young offenders….
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
“A substantial body of longitudinal research
consistently points to a very small group of
males who display high rates of antisocial
behaviour across time and in diverse
situations. The professional nomenclature
may change, but the faces remain the same
as they drift through successive systems
aimed at curbing their deviance: schools,
juvenile-justice programs, psychiatrictreatment centres, and prisons” (Moffit: 1996)
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
8. What use should be made of prison and
detention centres for young offenders?
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Does prison work…?
(From Lipsey,1992)
Intervention Type
Change in expected re-offending
rate
Prepared for employment
35% decrease
Behaviour contract
25% decrease
Institutional training
15% decrease
Court/Probation
10% decrease
Offender Counselling
8% decrease
Family Counselling
No change
Deterrent Sentencing
25% increase
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
2001
2000
1999
1998
1997
1996
1995
1994
1993
1992
1991
1990
1989
1988
350
300
250
200
150
100
50
0
1987
Number of cases
Figure 2: De-carceration: number of cases
receiving custodial sentences: 1987-2001
Year
Total custody
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Conclusion
In New Zealand…...
The Children, Young Persons & Their Families
Act, 1989…..introduced a revolution.
3 things in particular changed:
1. The number of young offenders charged in the
Youth Court was significantly reduced. Firm,
prompt, community-based responses are used
for at least 80% of youth offending.
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Conclusion
2. With the introduction of the Family Group
Conference (FGC), a restorative justice approach
was developed, representing a partial transfer of
sentencing power to the community and families,
but with the victim centrally involved
3. There was a profound reduction in rates of
imprisonment
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Conclusion
Despite
• less use of Court processes and charging
• use of a Family Group Conference system
involving victims
• less use of imprisonment,
youth offending has remained relatively stable over the
last 5-8 years
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Hemi’s song
I’m sorry for all the pain that I caused
Putting your family through something I could never have stopped
And now I’m staring at the stars thinking of what i have done
Something stupid of course what was I thinking of
Looking for my mentality but that was lost
Back in the days BC id be pinned to a cross
But instead I’m writing this rhyme because you gave me a chance
So in the words that I write
You should know that they came from my heart
You opened my eyes despising what I had done
Look above and find the strength to carry on….
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa
Hemi’s song verse 2
The stupid things I’ve done in my life
Creating enemies that want to bring a lot of strife
We’d fight
On the streets
Is probably where you would see me
Drugged out struggling to breath
But now im down on my knees
With a million apologies
Please time freeze wish I could turn back the time
Rewind but its all over and done
A new era begun
The sun has risen
And its shining through
This song I compose is dedicated to you.
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The Youth Court of New Zealand
Te Kooti Taiohi o Aotearoa