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CRIMINAL AND JUVENILE JUSTICE IN ENGLAND & WALES: GROWING OLD WITHOUT GROWING UP?

A Dissertation submitted in fulfilment of the course requirements for the degree of Master in Laws - Family Justice Studies at the University of East Anglia By SAJEEVA SAMARANAYAKE (2002)

SUPERVISOR: DR CAROLINE BALL WORD LIMIT:

This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with the author and that no quotation from the dissertation, nor any information derived therefrom, may be published without the authors prior written consent

TABLE OF CONTENTS
Introduction Part I Punishment Delinquency, crime and the punitive response Historical evolution: regression from reparation to retribution The process in practice: institutionalised discrimination Part II Rehabilitation the connecting bridge Part III Reintegration the coming of age International law Victims Restorative Justice Conclusion

SUMMARY
This dissertation examines the fundamental principles which underlie the development of criminal and juvenile justice in England and Wales using a multi-disciplinary approach. However both the reasoning and conclusions have a direct application to Sri Lanka which has inherited the common law system of criminal justice and is yet without an effective system of juvenile justice. It exposes the irrelevance of and the harm caused by traditional punishment oriented criminal justice systems and their covert political function in serving the interests of the dominant and powerful classes in society. It traces the evolution of juvenile justice policy from retribution to rehabilitation and finally to the object of reintegration advanced by the CRC. Within this framework the needs of victims as well as the psychosocial needs of offenders find a positive meeting ground within the ancient process of restorative justice that is now being revived in many progressive countries around the world. We end with a meaning of justice that is in keeping with the basic humanitarian principle in the Universal Declaration of Human Rights that affirms the dignity and worth of every human being.

INTRODUCTION This dissertation will examine the fundamental principles which guide the societal response to delinquency in the United Kingdom in order to demonstrate first of all, the irrelevance of the traditional approach - justice through punishment1 and the social alienation and harm it perpetuates; and secondly to assess the relevance and utility of what may be termed the humane approach - justice through welfare, in mapping the future direction of juvenile justice. We will focus on the jurisdiction of England & Wales which persists to date with a combination of both approaches. (Scotland on the other hand replaced its juvenile court with lay panels - childrens hearings - and embarked on a predominantly welfare approach from 1971. The Scottish Model has looked remarkably stable during its three decades of operation and remains subscribed to a philosophy which treats deprived and delinquent children alike as children with needs.2) From an evolutionary and humanitarian perspective the developments in the jurisdiction under review can be graded into three conceptual (rather than chronological) stages, the punishment phase, the rehabilitation phase and the reintegration phase. In examining the punishment phase we seek a clear understanding of the true nature and function of the criminal justice process as a whole, ignoring the usual bifurcation between adult and juvenile systems which now regards them as separate entities. Once it is concluded that what is bad for the child is bad for adults and for society as a whole, we shall seek inspiration from emergent international law, developed in relation to children, and the movement in restorative justice, to derive a relevant, pro-active and humane basis for approaching the issue of crime in general. One central theme of our approach is the obvious need for a holistic approach. In the words of Lord Radcliffe,
You will not mistake my meaning or suppose that I deprecate one of the great humane studies when I say that we cannot learn law by learning law. If it is to be any thing more than just a technique it is to be so much more than itself, a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.3

Punishment, for the purposes of this dissertation will mean that mechanical state response which inflicts pain in order to avenge wrongdoing and is also intended to deter both the offender and likeminded others from the commission of similar acts. It is a response which gives no consideration to the impact of punishment on the psycho-social development of the offender. The sentencing process may take into account individual circumstances but the claim to leniency must compete with the public interest in securing a deterrent sentence; more so, where the crime is considered serious. A fundamental feature of the criminal justice process we are about to review is the wedge placed between the offender and the rest of society and the perception that they represent competing interests which therefore need to be balanced. 2 Stone, Fred H. (1995) The Kilbrandon Report HMSO. 3 Radcliffe, Lord (1961) The Law and its Compass 92-93.

PART I
PUNISHMENT DELINQUENCY, CRIME, AND THE PUNITIVE RESPONSE A system of juvenile justice encompasses both delinquency (the transgression of criminal law by children) and the complete range of societal responses thereto. Neither phenomenon is independent. They both interact and condition one another within a wider political and socio-economic setting. We adopt without much ado the universal principle of inter-dependence and a view of human society as an organic whole which cannot be separated from its malfunctioning parts without embarking on a process of self-deception. Diverse forms of institutionalised conflict in society are simply political phenomena enacted upon platforms of self-deception, spurred by ignorant power play. The enabling mechanisms which fuel these conflicts are labels or concepts indiscriminately attached to groups of people which deny their essential humanity. These labels may be based on ethnicity or religion, a perceived threat such as terrorism or crime or a perceived deviance such as homosexuality. What is challenged here is not the existence of a norm and deviance there-from but the amplification of that deviance and the imposition of a judgement thereon. From this holistic perspective the central issue whether delinquency is to be understood as a wrong against society or whether it is explicable in a less threatening and more illuminating way, is capable of easy resolution. The net effect of criminological research in the past century has been to move away from criminality as the organising conceptual principle for understanding youthful misconduct to reveal a broad range of psycho-social issues facing children who grow up in less than ideal conditions.4 Thus a delinquent act may carry a deeper message about the state of society.5 It may also be an intensely personal one. Erikson suggests that anti-social behaviour may at times be no more than an S.O.S. for control by strong, loving, confident people and that it is an indication of hope remaining.6 He refers to the need of every child for a holding framework generally provided by the family or immediate community within which the child can freely act out and eventually learn to control internally, the destructive aspects of his behaviour. The anti-social child is one whose basic framework has broken down and ventures further afield looking to society to provide the security and stability his family and school environment could not provide. 7 The holding framework is comparable to the secure base concept developed by modern attachment theorists who postulate that social learning and competence of the growing child bears a direct relation to the quality of parent-child interaction.8 Based on the caregiving pattern experienced by the child his or her development could either be balanced
4

Pearson, Geoffrey (1994) Youth Crime and Society. In M. Maguire, R. Morgan and R. Reiner (Eds.) The Oxford Handbook of Criminology Oxford University Press: 1161-1206. 5 Clarke, J (1975), The Three Rs Repression, Rescue and Rehabilitation: Ideologies of Control for Working Class Youth. Birmingham University Centre for Contemporary Cultural Studies. Truanting for example has been interpreted as a form of inarticulate resistance to compulsory schooling. Cf. Corrigan, Paul (1979), Schooling the Smash Street Kids. London: Macmillan. 6 Erikson, Erik (1963) Childhood and Society, New York, W.W. Norton. 7 Id.

and secure, with cognition and emotion supporting each other; or it could be unbalanced and insecure with either cognition or emotion dominating inter-personal relations whilst remaining socially functional. Or else inter-personal relations may be dysfunctional with neither cognition nor emotion being developed, leading to a negative view of self and a complete lack of trust in others and human relationships. Howe et al cite a series of research studies which confirm a major inability shown by many extremely anti-social and criminal adults to resolve the powerfully negative feelings associated with childhood experiences of trauma and abuse.9 Unable to forge close relationships they carry a lone burden of suffering. Human beings need to connect with others. Anti-social adults have not learned to connect positively so they connect negatively and inflict suffering on others. Paradoxically they need the most human warmth but are the least equipped to win it. This vicious cycle can only be broken with patient commitment within a close relationship that restores their self esteem and trust in others. Until such positive intervention takes place the negative trend continues.10 This is why Farrington11 observes that anti-social adults tend to produce anti-social children and that both delinquent and criminal acts are part of a larger syndrome of anti-social behaviour that arises in childhood and tends to persist into adulthood. 12 He identifies high impulsivity, low intelligence, family influences such as poor child rearing and anti-social parents, socio-economic deprivation, peer and school influences, community characteristics like social disorganisation and situational factors like opportunities for crime, as major risk indicators that pre-dispose to offending and antisocial behaviour. They often have addictive, interactive or sequential effects.13 In another study14 he found an increase in offending frequency after first convictions, suggesting that diversion from the criminal process may have been more effective. As Longford explained these factors do not forcibly compel a criminal to commit a crime but make it more or less likely that he will do so.15 Santrocks observation that Each of us develops in certain ways like all other individuals, like some other individuals and like no other individuals16 sums up the shared and unique developmental pathways human beings tread. Chronological age therefore is an insufficient indicator of cognitive and socio-emotional development. Again, childhood is undoubtedly a unique period of growth. But so is every other period of human development right up to death. Although childhood and adulthood are conceptually separated phases of development there is also a crucial period of transition. In short whether the offender is below or above eighteen years the act must be seen as a consequence of his/her psycho-social environment from the time of birth and examine the degree to which this may have impaired autonomy. Autonomy therefore is a question of fact irrespective of whether the offence is a reaction to
8

Howe, David., Brandon, Marion., Hinings, Diana., Schofield, Gillian., (1999) Attachment Theory, Child Maltreatment and Family Support: A Practice and Assessment Model, Houndmills: Palgrave. 9 Id p 159. 10 Op cit supra n 8 p 41. 11 Farrington, David P (1994) Human Development and Criminal Careers. In M. Maguire, R. Morgan and R. Reiner (Eds.) The Oxford Handbook of Criminology Oxford University Press: 511-584. 12 Id. 13 Id. 14 Farrington, David P (1977) The effects of Public Labelling. In British Journal of Criminology, 17: 112-25. 15 Longford, Lord (1961) The Idea of Punishment London: Geoffrey Chapman p 67/8. 16 Santrock, John (1997) Children Mcgraw-Hill, p 15.

difficult circumstances or a pre-meditated act of exploitation or abuse of power. As Chambliss noted with regard to organised crime,
One of the reasons we fail to understand crime is because we put crime into a category that is separate from normal business. Much crime does not fit into a separate category. It is primarily a business activity.17

What then are the relevant issues presented by a delinquent act or crime? First is the developmental issue which has led to impaired social functioning of a member of society. Secondly there is the harm to the victim, his/her dependents and the issue of their future protection and well-being. These are not separate issues as a crime is essentially an aggravated violation of human relations. Thirdly, what are the responsibilities of an organised society in responding to these issues and in taking any further action needed to safeguard its integrity, especially where there is a likelihood of re-offending? This likelihood would remain a question of fact and it may be remote in certain cases. It may be enhanced where the act is part of an organised pattern of crime irrespective of whether this is taking place in the traditionally private sphere as in a home or a public sphere such as a street. The rational acknowledgement of these issues must necessarily form the basis of an effective response to delinquency or crime. Demonising the delinquent or criminal and treating society as an abstraction requiring protection (which is the essence of the punishment model) is in fact a maladaptive coping strategy that relies on distorting the picture in order to relate to it; a form of frightened ignorance that confuses need with wrong and responds with another wrong. Bearing these considerations in mind we look at the basic institutional response to juvenile offenders18 which endures to this day in England & Wales. Harris and Webb describe the juvenile court, 19 established in 1908 to discharge the functions of a child care and a criminal justice system side by side as a meeting place of two otherwise separate worlds.20
Then as now there was some faith in the idea of reformation by kindness, offering trusting relationships, even love; but such an approach has always sat uneasily with the punishment which one wished simultaneously to mete out.21

The desire to punish is the hall mark of the criminal justice system which is quite explicit about this fundamental objective as the ultimate instrument for maintaining discipline and order in society. Consequently the juvenile court (with its arbitrary entry
17 18

Chambliss, W.J. (1978) On the Take, Bloomington: Indiana University Press. At English common law a 7 year old child was criminally responsible. Those between 7 and 14 were presumed incapable of crime, a presumption that had to be rebutted by the prosecution. Those between the ages 14-16 were termed young persons who together with younger children came under the common denomination of juveniles. The age of criminal responsibility was raised to 8 by the Children and Young Persons Act of 1933 and subsequently to 10 by an amendment in 1963. The presumption that shielded children between 10 and 14 doli incapax was removed by the Crime and Disorder Act 1998 in England & Wales. [Gelsthorpe, Loraine and Morris, Allison (1994) Juvenile Justice 1945-1992. In M. Maguire, R. Morgan and R. Reiner (Eds.) The Oxford Handbook of Criminology Oxford University Press: 949-993.] 19 Id p 950. Initially a special sitting of the Magistrates Court from which the public were excluded. 20 Harris, Robert and Webb, David (1987) Welfare, Power and Juvenile Justice: the Social Control of Delinquent Youth London: Tavistock p 8. 21 Id p 12.Cf. p 41 for a cultural explanation of this mixture of retribution and sympathy.

and exit points marked by chronological age limits) became a natural extension of the adult criminal justice system. Juvenile delinquents were conceptually separated from other children treated as being in need of care and protection22 Delinquency and punishment thus acquired a permanent connection. The strength and resilience of the punishment model (which remains entrenched within England & Wales respecting juveniles and indeed in many countries respecting adults) is a direct consequence of the mystification of crime and the psychological dichotomy which has solidified between ordinary and criminal human behaviour, reinforced by a narrow judgemental morality.23 The criminal law is concrete (or black and white) thinking par excellence. All human behaviour, whether good or bad, is conditioned. Both types of behaviour are effects or consequences bearing a direct co-relation to a personal developmental process which has fostered either positive or negative perceptions about self and others.24 When both good and bad actions are viewed as rooted in positive or negative causes and conditions it becomes easy to recognise their intrinsic nature as effects and their causal dependence on other factors. In this way it becomes easy to recognise that the effects may well have been different if the causes were different and that persons other than the offender or even society itself may be collectively responsible in respect of those causes. Hudson refers to street crimes as the last link in a chain of crimes, including crimes of neglect and crimes of exploitation.25 This broadens the focus and nudges us away from judgement and condemnation to a mature and realistic understanding. Moral choice does exist but its exercise may be constrained, sometimes powerfully, by a combination of causal factors. We are, after all, dealing with human beings. In his defence of humanity Kant resisted the idea that the way we treat others should depend upon our judgements of their moral worth.26 He also maintained with confidence that the spark of human goodness and also rationality was inextinguishable in every human being.27 Human beings may relate to one another, but judging is a different matter. It involves the arrogation of the right to judge with the attendant invocation of justice objectivity and fairness and the application of the fiction of equal autonomy to the subject being judged, both assumptions being arbitrary in a fundamental sense. The response of Jesus Christ to the Pharisees that he who has committed no sin should throw the first stone at a woman accused of adultery (John 8:12) is directly in point. In Buddhist philosophy the universe (of which humans are an integral part) functions of itself based on a complex operation of the principle of cause and effect or karma (which takes the form of tendencies and not absolute rules) and the offender cannot escape the negative consequences which arise in consequence of the act itself. Human intervention to secure punishment is in this view tantamount to the infliction of additional suffering upon the offender.28 These views are united that moral
22

Gelsthorpe and Morris (op cit supra n 15) refer to their present treatment under different legislationchildren in need under the Children Act 1989 and delinquent children under the Crimes and Disorder Act 1998. This has reversed twentieth century trends which sought to erode this distinction. 23 Cf. Op cit supra n 4. 24 Op cit supra n 7. 25 Hudson, Barbara (1987) Justice through Punishment: A Critique of the Justice Model of Corrections, Houndmills: Macmillan Education p 113. 26 Hill, Thomas E. Jr. (1992) Dignity and Practical Reason in Kants Moral Theory, Ithaca Cornell University Press p 176. 27 Id. 28 Rahula, Walpola What the Buddha Taught URL: http://www.geocities.com/caligirl_333/karma.html

judgement (however dressed up) is a flawed basis for the treatment of our fellow human beings. The dynamic approach to life posits a vision of morality as a life-long pursuit rather than the success or failure in negotiating one incident within it. From this broad environmental perspective of life a crime is something that fits within an overall pattern of human relations. If not, how could it happen?29 Constructing a public denial that the crime had any place in civilised society and stamping societal disapproval of the act by a deterrent sentence cannot controvert the breach. The moral consensus of civilised society depends on much more than mere compliance with a code of minimum morality. Its strength bears a direct connection to the degree of social inclusion and cohesion in society. Ultimately the question is one of societal health, both spiritual and material. Individual crimes are natural manifestations of this state of health. They must indeed be viewed seriously, but not at a superficial level by isolating the symptoms. This however is what the criminal law does. Its arbitrariness is compounded by retributive punishment or just deserts. Such punishment is claimed as just because it is proportionate to the crime committed and because it is said to deter both the offender and others from committing similar offences, what Foucault described as the creation of a sombre moral fable.30 It would not have been possible for society to treat offenders in this way if the true nature of crime and their humanity was fully acknowledged. Punishment is itself a crime, sanitized and projected as justice by the illegitimate marriage between coercion and prejudice. The equation of justice with punishment that befits the criminal act regardless of its social causes is based upon the elevation of crime to a pedestal above human beings. Downes and Morgan, referring to the British political consensus on crime up to the mid 1960s state,
That law and order were relatively insulated from the realm of party politics for so long testifies perhaps to the strength of belief that crime, like the weather, is beyond political influence; and that the operation of the law and criminal justice should be above it.31

This mystification goes hand in hand with a unique process of alienation and dehumanisation unparalleled in human conduct except in times of war. Not only is the offender alienated from society but both offender and victim are marginalized from a mystic process intended to bring the former to justice. The adversarial nature of the contest alienates the offender from the victim. Finally the offender is alienated from the offence which is reified as the sole and exclusive focus of attention. Criminal law with its categorisation of offences and pre-determined sentences does not guarantee equality of treatment to offenders but to offences. Ascertaining the truth is a costly and
Viewed: 2/9/2002 29 Cf. Becker, Howard (1963) Outsiders, New York, Free Press: 8-9. As Pearson (op cit supra n 4 p 1187) points out the labelling tradition emphasizes the ways in which crime and more generally deviance are social constructions. 30 Hallsworth, Simon (2002) Punitive Passions, Civilisation and Punishment. URL: http://www.psep.pl/a-eg/04shkara.html Viewed: 2/09/2002, citing Foucault, M. (1977) Discipline and Punish,(trans. A. Sheridan,) Peregrine Books, London p 60. 31 Downes, Paul and Morgan, Rod (1994) Hostages to Fortune? The Politics of Law and Order. In M. Maguire, R. Morgan and R. Reiner (Eds.) The Oxford Handbook of Criminology Oxford University Press: 183-232.

complex forensic affair (at investigation and trial stages) which eats up resources better spent on the present needs of the victim, offender and wider society. This therefore is an irrelevant and harmful and therefore wasteful and unsatisfactory method of dealing with a serious human problem in society. The analysis above rejects the whole machinery of coercive criminal justice including the substantive and procedural laws (in so far as they engineer the end of retributive punishment) and indicates that there is a simpler, relevant and humane response to the general issue of criminal behaviour that does not need to be markedly different in its application to adults and children. Whilst the vulnerability and special developmental status of children would be acknowledged within such a process, this would merely be an aspect of the general focus on the individual concerned as a dynamic psycho-social being. The creation of a separate juvenile court in 1908 was a practical measure to safeguard child offenders against exposure to an inhumane adult system. It did not create a principle, because in truth neither adults nor children deserve to be exposed to such a system. Conversely the humanitarian principles of rehabilitation and reintegration (to be elaborated in due course) would also be generally applicable to both adults and children. Does punishment work? Punishment does not work and it is both an inefficient as well as short-sighted and negative approach to troubled human behaviour. It is inefficient because it relies totally on the application and fear of external force based on constant policing. Its failure justifies the invocation of even more stringent measures of control leading to an overall loss of freedom.32 Taking the guise of a solution, reactive measures become part of the problem rather than offering a genuine remedy. They are based on a view of human beings as fixed and not dynamic entities. Farrington suggests that offending is the end result of a gradual four stage process of conditioning.33 Developmental theory34 indicates that the reverse process of de-conditioning must be equally gradual and address the key psycho-social issues of self-esteem and trust in others through close, personal relationships. The punishment approach denies and defeats the dynamic psycho-social potential inherent in both offender and society. There is no room for forgiveness, reconciliation and moving on. This is the potential that is trapped within prison walls, offence and counter-offence getting locked within a wheel of suffering. As Leach put it, there is an element of power play, even revenge in the concept of punishment. We not only want children to do as they should, we want them to think we can force them to do so. We do not simply want the naughty child to stop behaving; we want her to pay for our inconvenience 35 In this climate the use of force and aggression is justified if it sub serves the greater good in utilitarian language. This is a dangerous lesson to teach children, especially those who have already experienced psycho-social adversity. It is useful to remember that re-offending is not an independent phenomenon but a response in part to the positive or negative message conveyed by official processing.36 As Harris and Webb note with reference to schoolboy attitudes to
32 33

Op cit supra n 20 p 65. Outlined by him as energizing, directing, inhibiting and decision-making. Op cit supra n 11 p 557. 34 Op cit supra n 8. 35 Albeit in the context of parents using corporal punishment on their children, which it is argued is logically applicable in this context as well. Leach, Penelope (1994). Children First, London: Penguin p 129. Cf. op cit supra n 20 p 61. 36 Op cit supra n 10.

caning, in a curious sense to be caned was a relief: one had experienced, survived, and so, oddly, triumphed over the worst that could be done to one, and certainly no second caning would be so fearsome.37 The generalised dogma attached to individual deterrence must therefore be rejected. Any deterrence actually achieved in individual cases is hardly worth the tremendous price paid for it. This turns the utilitarian argument on its head. What about general deterrence, that abstract, diffuse idea that those inclined to commit murder, rape, rob, steal and cheat would rationally calculate the benefit, against the cost to them and their families (if detected) before committing the crime?38 Once again the same reasoning about inefficiency, short-sightedness and negativity are applicable here. This idea also runs counter to the general proposition that the fundamental basis of civilised society is not negative but positive self-discipline and voluntary compliance.39 The criminal law however and its projection of the offender as a different human species would have us believe that this is a proposition confined to the law-abiding majority. But when it becomes apparent that a majority within the criminal minority are also responsive to positive measures that enhance (rather than undermine) selfesteem this deceptive foundation needs further conceptual devices to retain its credibility. This is provided by the bifurcation of offenders into corrigible and incorrigible categories.40 Whilst the Longford Report correctly identified serious delinquency as an indication of greater need on the part of the offender the punishment approach views it as an indication of a greater need to protect society from the offender. Effective prevention of re-offending is a shared concern of both approaches and enough has been said to show why punishment is ineffective. It is also an approach which reserves the highest penalty to those offenders whose autonomy is most compromised. Therefore the most relevant approach is bound to be that which is aligned closest to the psycho-social developmental process of the offender. Society has a clear interest in the long term well being of the offender although in the short term some holding may be required to avert re-offending, once again in the interests of both parties. The scope for cruelty is greater when the societal interest is divorced from that of the offender reinforcing the polarisation that led to offending in the first place. The distinction as always is between positive and negative discipline. It needs to be accepted that lengthy incarceration of offenders perceived as dangerous to society is not a solution but an acknowledgement of the exclusionary nature of a society that preaches morality without practising it and devotes resources to the punishment of crime rather than the alleviation of needs that led to the commission of those crimes. Mechanical incapacitation is both

37 38

Op cit supra n 20 p 112. Ashworth, Andrew (1994) Sentencing. In M. Maguire, R. Morgan and R. Reiner (Eds.) The Oxford Handbook of Criminology Oxford University Press: 819-860, notes that satisfactory empirical evidence of the effect of deterrent sentencing on individual behaviour is difficult to obtain and that the few findings which support it do not favour a general theory of deterrence; p 821. 39 Taylor, General Telford (1986) In proceedings, Eightieth Annual Meeting, The American Society for International Law, 9-12, April 1986, Panel on Forty Years after the Nuremberg and Tokyo Tribunals: The impact of the War Crimes Tribunals: The Impact of the War Crimes Trials on International and National Law 70. Taylor was a chief war crimes prosecutor at Nuremberg, hence there cannot be a better authority for this proposition. 40 Op cit supra n 25 p 8.

cruel and stupid in principle as well as practice. As Hinton41 said protecting the public from one dangerous crime involves the incarceration of about hundred false positives. The rhetoric of crime and punishment and the legitimacy of criminal justice masquerade as truisms the world over today. The values of marginalisation, moral judgementalism, coercion, punishment and deprivation of liberty which they promote stand in direct opposition to present day imperatives of social inclusion and social justice. These very different approaches are derived from two value systems designated respectively as the ethic of justice and the ethic of care.42 Banks notes that Kantian and utilitarian moralities are based on a system of individual rights and duties, emphasising abstract moral principles, impartiality and rationality.43 They reinforce the separation of individuals, hierarchy, social contracts and individual freedom. The ethic of care stresses caring as the core value based on human inter-dependence and gives greater premium to responsibilities, relationships, co-operation and communication. The ethic of justice which is sometimes referred to as a male-oriented system of morality44 is the dominant mode of thinking not only in the UK but in the Common Law world generally. But its limitations in addressing social issues and the effectiveness of the ethic of care have been recognised, more specifically in the incorporation of restorative justice models into the juvenile court process.45 In order to gain a broader understanding of the criminal justice process in England and the way it influences the administration of juvenile justice we now turn to its historical origins and evolution and its enduring association with effective executive power.

HISTORICAL EVOLUTION: REGRESSION FROM REPARATION TO RETRIBUTION In medieval Anglo-Saxon England in the ninth and tenth centuries wrongs were wrongs and there was little distinction between the modern categories of crime and tort. All wrongs were basically private matters between the individuals or families involved and could always be paid for in livestock, armour, money or, if necessary, in blood through the feud.46 The legal framework for maiming or homicide was how much? and detailed tariffs were laid down for particular wrongs to be paid to victim, next of kin, lord and king. The king had a minimal role and was not involved with routine disciplining of the population. He only intervened if his interest, (which usually meant his purse or authority) was threatened. Social structure at this time was based on kinship group and land ties. The group assumed collective responsibility for the wrongs of its members and had the ability to provide collective resources for compensation.47
41

Hinton, J (1983) (ed.) Dangerousness: Problems of Assessment and Prediction London: Allen & Unwin. 42 Banks, Sarah (1995) Ethics and Values in Social Work, British Association of Social Workers, Houndmills: Macmillan, p 34. 43 Id. 44 Id. 45 A striking example of the fusion of both systems is the CRC which employs a rights discourse in setting out a holistic and care based agenda for action. 46 Uglow, Steve (1995) Criminal Justice, London: Sweet & Maxwell p 9-15, citing Goebel, J (1976) Felony and Misdemeanour, pp 15-16. Whilst legal sanctions could be savage and brutal the state itself had little part in it. 47 Id .

In the eleventh and twelfth centuries however the balance of power began its shift to the centre and the monarchy was strengthened through the imposition of feudal land tenure. Significantly there was an increasing sense of the kings divinity and the coronation ceremony (emerging in the ninth century) as casting Gods protection upon the anointed.48 Consequently justice became an important symbolic representation of the kings power and authority.49 The emergence of a criminal justice system (with its itinerant royal justices who travelled the realm and called upon local juries to present information on royal interests, including any felonies committed) is traced to the reign of Henry II (1154-1189).50 The king had a pecuniary interest in the conviction of felons as their property was forfeit to the crown.51 The first legal text book appeared written by Glanvil which replaced the language of restitution and adopted the term felony. Previously a felony had been a personal matter involving the breach of the homage vow between lord and man which was the core of the feudal relationship. What mattered was the breach of loyalty rather than the substance of the act. However the pleadings of the twelfth and thirteenth centuries converted this to an issue between the king and subject and the focus shifted from relationship to act, from personal wrong to impersonal crime. These developments were neither a response to a crime problem nor a move to protect the rights of victims but part of the growing expansion of centralised power structures founded by Henry II in order to govern an empire that stretched from Scotland to the Pyrenees. He had no real interest in the peasantry but was keen about legitimate techniques for controlling the aristocracy. The right to inflict punishment came to be monopolised by the crown and the curtain gradually came down on the old compensatory system.52 However it was the Tudors, in particular Henry VII and Henry VIII, who achieved the absolutist feudal state by the sixteenth century. Criminal justice mechanisms developed alongside, first against the nobility and then against the new poor forced off their lands by economic policies like the enclosure movement and the dissolution of the monasteries. As Uglow observes the poor were no longer tied to particular localities and with the increasing size of the towns armies of unemployed began to pose a public order problem. Specific approaches were formed against them with repressive punishments, more powers to justices of the peace and the consolidation of the Poor Law in 1597 with additional provisions to deal with the able bodied poor.53 The criminal law thus took on
a modern tinge as the mechanism for class domination of a social and economic underclass.54

48 49

Barlow, F (1983) The Holy Crown. In Barlow, F (ed.) The Norman Conquest and Beyond p 3. Sutherland, D. W. (1963) Quo Warranto Proceedings. 50 Jeffrey, C.R. (1957) Crime in Early English Society. In Journal of Criminology, Criminal Law and Police Science 47: 647. 51 Op cit supra n 46. 52 Id. 53 Id p 13. 54 Id.

The disappearance of common rights over property55 and the emergence of private property brought about a permanent transformation of social relations. Thus at the end of the seventeenth century Locke defined the chief ends of government as the preservation of civil peace and the security of person and property. Thompson wrote that Such a theory, diluted by self-interest and prejudice, might provide propertied classes with a sanction for the most bloody code penalising offenders against property 56 Spurred by the industrial revolution the balance of power was now shifting decisively in favour of these propertied classes. In the eighteenth century criminal law was no longer directly representative of the authority of the monarch but of the interests of the dominant capitalist classes.57 Hay looks at the apparent paradox that this century witnessedboth an enormous expansion in the number of capital offences, but at the same time a weak and declining enforcement of the law with frequent acquittals of defendants on technical grounds as well as frequent pardons or commutations of the death sentence. The law was important as gross coercion. But it was equally important, he argued, as ideology. Its majesty, justice and mercy helped to create the spirit of consent and submission, the mindforged manacles which Blake saw binding the English poor.58 In the nineteenth century subjective and discretionary justice gave way to a projection of the law as an impartial arbiter between capital and labour, with the articulation of the values of rule of law, neutrality, equality and universality. Its most visible sign was the Metropolitan Police force established in 1829. Theoretically therefore the law protected everyone, property owners and the dispossessed alike.59 It must be noted however that certain substantive rights were addressed by progressive Victorian social policies relating to education and welfare. Criminal justice was also rationalised by the repeal of many old capital statutes and punishment brought into conformity with the utilitarian principle of proportionality.60 The new penitentiaries of the 1840s were designed for reforming the offender through work, the bible and solitary confinement in individual cells.61 This bureaucratisation and refinement with attendant conceptual paraphernalia in the criminal and procedural laws was effective in ritualising and mystifying the process. In effect the palpable injustice and power imbalance in ranging the machinery of the state against a single individual was addressed by the notion of due process to ensure that he would not be killed or put away without a fair trial at which the charge was proved beyond reasonable doubt. It is this sophisticated nature of the whole operation that enables the smooth functioning of social control regardless of the near complete irrelevance of the process to the future well-being of both accused and victim62 and therefore to social harmony. Not surprisingly it is the marginalized who form the overwhelming majority of both perpetrators and victims of both serious and petty crimes prosecuted before criminal courts.63 The issue of social integrity was narrowly
55 56

Thompson, E.P. (1975) Whigs and Hunters. Thompson, E.P. (1968) The Making of the English Working Class p 87. 57 Op cit supra n 46. 58 Hay, Douglas (1975) Property, Authority and the Criminal Law. In Douglas Hay (ed) Albions Fatal Tree. 59 Op cit supra n 46 p 14. 60 Id. 61 Ignatieff, M (1978) A Just Measure of Pain. 62 Other than the satisfaction of seeing the accused punished, if found guilty. 63 Lea, J and Young, J (1984) What is to be Done about Law and Order? Harmondsworth: Penguin.

depicted as a wrong against society at the expense of the issues concerning the offender and victim and converted to a basic truth underlying the criminal law. Finally we see an over-reliance on both policing and the presumed fear of punishment as methods of social control. Failure to achieve these objects is used to justify the use of more power.64 As Foucault said power spreads, ironically through its own failure.65 The criminal justice process thus developed as a political mechanism for the maintenance of the prevailing socio-economic order in the guise of maintaining law and order, serving in turn the needs of the monarch and the dominant classes in society. Put another way it was never designed as a straightforward response to the problems of criminals or victims of crime.66 State monopolisation of punishment merely changed the outward forms but not its substance which remained essentially coercive and retributive.67 A principal feature of the criminal justice process in the twentieth century is its professionalism.68 The police, defence and prosecuting counsel and judge, probation officers, social workers and prison officers all have institutionalised perceptions of their roles within the process, some of which openly conflict. Different ministers of the crown are responsible for different parts of the system.69 These factors taken together with the inherent duplicity of the process makes for profound ambivalence in the absence of any unifying principles or policy objectives. The adversarial nature of the process provides further scope for conflict and polarisation. We now consider how the criminal justice process works in practice.

THE PROCESS IN PRACTICE: INSTITUTIONALISED DISCRIMINATION


By and large, the criminal law is imposed by whites on blacks; by the advantaged classes on the disadvantaged; by the elderly on the young, and by men on women. 70

That irreducible baggage of human subjectivity is in full force here. The empirical findings on prison populations reveal the natural consequences of systems of justice which assume the power to judge and punish. Both in the UK and also the United States the unemployed, the blacks and other ethnic minorities are found in disproportionately high numbers in prisons.71 Discrimination has been found in regard to all three categories. For example unemployed who were more numerous in the utilitarian categories like property offences and drug trafficking (which did not involve

64 65

Op cit supra n 20 p 64. Foucault, M (1967) Madness and Civilisation, London Tavistock. 66 Op cit supra n 46. 67 Op cit supra n 30. 68 Harris and Webb refer to a vast army of professionals, politicians civil servants law officers, academics, judges barristers and social workers whose identity depend on their being experts in a subject in which they are persistently unable to make advances and engaged in an activity which only makes sense from the point of view of upholding the edifice of the criminal law. Op cit supra n 19 p 66. 69 The Lord Chancellor for the magistracy; the Home Secretary for the police, the prisons and the probation service and the Attorney General for the Crown Prosecution Service. 70 Op cit supra n 25 p 95. 71 Id.

force) were nevertheless given custodial terms whereas loss of career was recognised as a mitigating factor for the employed.72 However anti-social and criminal activity is not the exclusive preserve of the disadvantaged. White collar crimes like over-claiming, embezzlement, tax evasion, securities violations and also ignoring industrial and other safety regulations that may lead to great losses in terms of environmental degradation and human lives (like the Zeebrugge ferry disaster) are somehow not seen as a threat to society and investigated and prosecuted as vigorously as activities that are characteristic of the marginalized. 73 Most significant among these are street crimes. Hudson points out that
It is neither harmfulness nor frequency of behaviour which provokes vigorous responses by the state; it is the degree of potential threat to the social order the perpetrating groups are perceived to pose.74

She cites this as the reason crimes characteristic of the young unemployed, workers faced with unemployment, political dissenters, women (and men) who do not occupy traditional gender roles or obey conventional social mores are taken seriously.75 These groups find that whatever action they take to improve their social or material position through anti-social acts like burglary or pro-social action like union activism or political protest is liable to be criminalized and repressively policed.76 Police therefore are increasingly viewed as the agents of the prosperous classes to repress the discontents of those who have fallen on hard and harder times. 77 Unable to get public co-operation in decaying urban areas for objective policing through informants, witnesses and evidence gathering they resort to coercive measures like targeted raids and general searches.78 Targeting takes place where the presumption of innocence is turned on its head and the suspect leads to the evidence of crime rather than the evidence to the suspect.79 With this type of policing, myths and stereotypes come alive as victims of hunches of pressurized policemen. Thus young blacks out on the street are bound to be muggers, burglars or dope dealers and women in certain quarters wearing high heels and short skirts must be prostitutes. 80 Police encounters with juveniles may also be influenced by a deviant hairstyle, wearing a leather jacket or walking with an overconfident strut.81 Werthman and Piliavin82 point out that discretion in police work can err both ways depending on the presentation of the juvenile concerned. Thus,
72 73

Op cit supra n 25 p 93-129. Box, S (1983) Power, Crime and Mystification, London Tavistock; Nagel, I.H. and Hagen, J.L. (1982) The Sentencing of White Collar Criminals in Federal Courts: A Socio-Legal Exploration of Disparity. In Michigan Law Review, 80: p 1427. 74 Op cit supra n 25 p 126/7. Cf. the chapter entitled The Crime of Poverty by Holman, Bob (1995) In Children & Crime Oxford: Lion. 75 Id p 127. Words in italics are mine. 76 Id. 77 Id p 103. 78 Id p 103/4. 79 Cf. Mansfield QC, Michael and Wardle, Tony (1993) Presumed Guilty: The British Legal System Exposed, Mandarin. 80 Op cit supra n 25 p 127. 81 Piliavin, I and Briar, S (1964) Police Encounters with Juveniles. In American Journal of Sociology, 70: 2. 82 Werthman, C and Piliavin, I (1981). The Police perspective on Delinquency. In E. Rubington and M.S. Weinberg (eds.) Deviance, the Inter-actionist Perspective, 4th Edition, New York Macmillan.

a delinquent is not a juvenile who happens to have committed an illegal act. He is a young person whose moral character has been negatively assessed. 83

Criminal justice is a process which commences with the decision to arrest and is thereafter largely pre-determined as to sentence by selection of charge/s by the prosecutor. Both stages provide ample scope for executive decision making that can be heavily over-laden with subjective perceptions of morality. Discrimination which has occurred at these stages gets frozen by trial stage which the judge becomes powerless to remedy.84 Hudson suggests that the possibility of discrimination should be acknowledged and measures taken to counter-act this at every step of the process.85 However no legal technique can rectify the uncomfortable fact that the policeman who targets the young black or punk on the street is merely replicating the ordinary processes of societal prejudice. As Hudson herself points out it is the same people most discriminated against in the labour market, the housing market and other social spheres who are discriminated against in judicial processes.86 This should come as no surprise since deviance amplification discrimination and intolerance are negative values built in to the criminal justice process. Such an inherently flawed process can never be sound in practice. The connection between the socio-economic order and the criminal justice process ought to be carefully noted here. Within an exclusionary society the latter is the natural ally of the former and an unwitting guardian of the status quo. We now examine the impact of emergent welfarism in the form of rehabilitation theory, its relationship to punishment and its role as the precursor of reintegration, the final phase in juvenile justice policy.

PART II
REHABILITATION THE CONNECTING BRIDGE Retribution, deterrence and rehabilitation are the three commonly ascribed goals of punishment but as Hudson87 points out the first two are an integral part of punishment whereas the third is not. Rehabilitation envisages a separate but parallel process intended to operate alongside punishment. The idea that criminals are sick souls in search of treatment rather than wicked souls in need of punishment is ancient88 but it was not until the turn of the 20th century that rehabilitation became the dominant penal ideology. It succeeded reformist ideology which had come into fore in the eighteenth century as death, transportation and torture were abandoned in favour of more constructive methods of incarceration which emphasised the learning of skills and work discipline to accord with the labour requirements of the industrial revolution.89 Reforming the
83 84

Id p 162. Op cit supra n 25. 85 Id p 128/129. 86 Id p 96/7. 87 Op cit supra n 25 p 1-36. 88 This view was articulated by Plato but he came into conflict with the more pragmatic retributive views of Aristotle. Id. 89 Id. Today we are over-supplied with labour and Hudson observes (at p 5) that we are seeing the emergence of the destructive prison today and a need to justify the permanent exclusion of vast

offender was therefore a process effected through punishment (as opposed to rehabilitation which was to accompany it).90 It was based on a belief in unfettered autonomy; that the offender could repent, expiate the sin and become a good citizen if only he would. Penal policy thus moved from the application of incapacitating sanctions against the body to a system of reformist sanctions against the mind and soul.91 Both reform and rehabilitation share a pre-occupation with the individual but the latter emphasised determinism. Thus the role of the state was not merely to provide the space and opportunity for self-reform but to intervene positively with rehabilitative programmes in order to transform the individual. However by the 1890s reformism was found increasingly wanting in reducing crime and the very existence of the prison was being called into question.92 The development of rehabilitation during the period 1885-1914 referred to as the progressive era in England was marked by an influential alliance between the state and the emerging sciences of psychiatry, physiology and sociology. But unlike reformism, rehabilitation merely penetrated the penal system. An accommodation was reached whereby the experts social workers, psychiatrists and probation officers were granted a limited role within existing institutions to diagnose, make recommendations and treat certain offenders and proclaim others to be beyond help.93 Biological and other narrow explanations of criminality gave way in time to multi-causal models, most notably that of Enrico Ferri in 191794 which placed responsibility on a combination of psychological and social factors. However official recognition of this fact has taken much longer and as Hudson points out, the great triumph of rehabilitationism was to make the control of deviants a substitute for any far-reaching social reform.95 It was during the progressive era (mentioned above) that a separate jurisdiction for juveniles was established with the Children Act 1908. Earlier, children between 7 and 14 years could, subject to the rebuttal of a presumption of incapacity be dealt with as adults by criminal courts. Execution was rare but whipping, transportation and imprisonment was common.96 The new Act was based on three principles that marked the beginnings of a welfare perspective: juvenile offenders should be separated from adult criminals and receive treatment differentiated to suit their special needs; parents should be made more responsible for the wrongdoing of children; and imprisonment of juveniles should be abolished.97 But as Gelsthorpe and Morris show this was not a wholehearted commitment to humanitarian ideals. The Bill was promoted in more pragmatic terms. It was argued that courts should be agencies for the rescue as well as the punishment of juveniles; parental responsibility was encouraged because parents should not be allowed to neglect their offspring and foist them on society. The abolition of imprisonment was favoured because it would destroy the deterrent value if used too soon.98

numbers of people from the labour force. 90 Bean, P (1976) Rehabilitation and Deviance, London: Routledge and Kegan Paul. 91 Op cit supra n 25 p 5. 92 Garland, D (1985) Punishment and Welfare, Aldershot: Gower. 93 Op cit supra n 25 p 10. 94 Ferri, E (1917) Criminal Sociology, Boston: Little Brown. 95 Op cit supra n 25 p 8. 96 Op cit supra n 20 p 10. 97 Op cit supra n 18 p 950/1. 98 Id.

As illustrated by this statement the bifurcation of offenders into corrigible and incorrigible categories by the criminal justice process conceals the manner in which the menace of punishment is suspended above the excepted category to be activated when this is perceived to be necessary in the name of justice or deterrence. The principle of separation as applied to juveniles in the UK since 1908 is a similar bifurcating device. Furthermore it is not a genuine exception but an explicit compromise between punishment and welfare. One year before, the Probation of Offenders Act of 1907 confirmed a practice which had developed informally, that of supervising juvenile offenders within the community.99 This new function of care and control authorized by the probation order became the province of the expert the probation officer, who knew the juvenile and visited his home, met the parents, talked to the friends and formed their impressions of the juveniles character and responsibility. In the words of the Act their job was not only to advice but also to assist and befriend.100 This was and still remains an ideal form of non-custodial and rehabilitative disposition.101 But while imprisonment ended for juveniles less than 14 years of age the Crime Prevention Act of 1908 established special institutions in which rigid discipline and training in work were to be provided in a secure environment, the first of these being set up at Borstal in Kent. Hudson102 observes that institutionalisation was a process which began in the reformist era. Initially the basic classification of age and sex led to the separation of different kinds of inmates within the prison and then to the development of separate institutions. The reform and industrial schools and corrective institutions of the nineteenth century marked a new era in facilities that catered exclusively for the young with names that suggested education rather than punishment. This duplicity continued well into the twentieth century and it was only with the attacks on rehabilitative ideology in the 70s and 80s that the incarcerative nature of juvenile institutions was recognised.103 The Second World War unified British society and gave birth to the welfare state, a sea change that ensured the survival of rehabilitative ideology for another quarter of a century. The Children Act 1948 made a decisive break from Poor Law approaches and established the first professional social work service for children separated from their parents. The new Childrens Departments provided a professional residential care and placement service for foster care and adoption. Prevention of the admission of children into public care by providing counselling and practical help for families was a logical extension of this new mandate. In the meantime the crime rate rose throughout the 1950s and 60s despite this being a period of heavy state spending on social and environmental facilities104 and empirical studies stressed that even amongst the poor, non-delinquents had distinctly more satisfactory human relationships than the delinquents.105 The CYPA of 1963 confirmed this connection between neglect and delinquency and provided Childrens Departments with a clear statutory basis to forestall delinquency by the provision of relevant and timely support for families in
99

Op cit supra n 18 p 950/1. Op cit supra n 20 101 Op cit supra n 25 102 Op cit supra n 25 p 132-6. 103 Id. 104 Op cit supra n 25 p 15. 105 Healy, W. and Bronner A.F. (1936) New Light on Delinquency and its Treatment. New Haven, Conn: Yale University Press.
100

need.106 These developments contributed to a gradual merger, in social policy and action, of both the deprived and delinquent child into one category children in need of care.107 Meanwhile the juvenile court itself pressed on with strategies that emphasised punishment.108 The 1960s witnessed the rupture of the British political consensus on crime and a great debate between the proponents of welfare and punishment models. Arguments in favour of the welfare model were predicated on several assumptions and these are outlined by Harris and Webb.109 First, the promise of a classless state forecast in the 1950s had not materialized. There continued to exist widespread disparity of wealth and income, and urban poverty. Secondly, courts and other institutions were inappropriate for dealing with problems of juvenile delinquency both originating and soluble within the community. Thirdly the court was not in a position to determine the appropriate prison sentence as this depended on the individuals progress towards his cure of deviant tendencies and it was the penal administrators who were in day to day contact with the inmate who were in a position to judge when the optimum moment of rehabilitation had come. Once this was reached the prisoner had to be released as further time in prison would lead to institutionalisation. In the UK until 1967 only the life sentence and the Borstal training sentence were indeterminate in this way. Fourthly, the basic tool of the experts, the relationship, was seen as a form of intervention inevitably constrained by the environment and personality of the offender. The social worker was best able to make a good relationship with those who appear to need least help.110 These issues were considered by the Longford Committee111 which reported to the Labour Party in 1964 with recommendations for a wholly new form of proceedings, an emphasis on the need to keep as many children out of court as possible and the importance of the family as the focus of preventive intervention. Their proposal of an integrated family service and non-legal family councils geared to achieving agreement with offenders and their families as to what should be done in particular cases represented, together with its Scottish counterpart the Kilbrandon Report112 (based on the same philosophical framework) of the same year, the first considered but straightforward response to juvenile delinquency shorn of unnecessary legal trappings, in the United Kingdom. That the juvenile court was abolished in Scotland but not in England & Wales in consequence is attributed principally to the respective strength of the legal cultures in these two jurisdictions.113 The rival report of the Conservative Party Crime in the Sixties114 emphasised autonomy and viewed the law breaker as choosing to commit offences, and doing so out of personal iniquity promoted by demands or desires exacerbated by the welfare state.
106 107

Op cit supra n 20 p 19-21. Op cit supra n 17 p 954/5. 108 Id. 109 Op cit supra n 20 p 22. 110 Davies, Martin (1969) Probationers in their Social Environment. Home Office Research Study No.2, London: HMSO. 111 Longford Report Crime A Challenge to Us All, Labour Party 1964 112 Kilbrandon Report (1964) Report on Children and Young Persons, Scotland. Cmnd 2306, London: HMSO. 113 Asquith, Stewart (1999) Juvenile Justice in England & Wales and in Scotland after the Children Act 1948. In Olive Stevenson (ed) Child Welfare in the UK, Oxford: Blackwell Science 190-206. 114 Cooper, B. and Nicholas, G. (1963) Crime in the Sixties London: Conservative Political Centre.

Neither psychological nor social conditions were relevant to understanding criminal behaviour. It also focused on parental failure to discipline the young and inculcate in them basic values. Deficiencies in the family were to be remedied through discipline and external controls, not through support and services.115 Hudson points out that the state itself must honour its obligations to individuals in return for their compliance with the law. If rewards are unevenly distributed, then obligations are also unevenly due Legal justice must be predicated on social justice. By setting aside the issue of social justice conservatives are undermining the whole logic of their advocacy of deserts as the basis of punishment. 116 But the clash of ideologies in England & Wales produced the inevitable compromise that characterised the juvenile court at its very inception in 1908. As Gelsthorpe and Morris observe The CYPA of 1969 perpetuated competing conceptions of delinquency and the responses they required. The court process was retained for those who saw the juvenile offender as responsible and believed in the symbolic and deterrent value of the court appearance. At the same time the welfare approach was retained with an enhanced role for social workers in implementing certain dispositions for those who saw delinquency as the product of social circumstances. The spheres of influence of these two conceptions were not mutually exclusive; nor were the people charged with implementing the Act, social workers, magistrates and the police placed in separate spheres. As a result they clashed at key points, prosecution, adjudication, disposition and implementation of the disposition.117 The welfare approach and more specifically rehabilitation reached its zenith as well as the beginning of the end with these developments. By the late 1960s and early 1970s the state came to be regarded less as the benevolent provider of means to eradicate deprivation than as an impersonal, overweaning apparatus intervening too much in the lives of citizens whom it too readily categorised as deviant.118 Hudson119 evaluates the merits of the damaging criticism levelled against rehabilitative treatment in the 1970s which saw England & Wales return to a punishment model of juvenile justice in the 1980s. The left civil liberties critique challenged the humanitarian character of rehabilitation on two grounds the first being indeterminate prison sentences for adults.120 We consider this in view of our rejection of a strict principle of separation between the adult and juvenile criminal justice systems and in view of its general importance. As noted above the indeterminate sentence shifted the discretion from the judge to the parole official looking at the effectiveness of treatment and the latter was not bound to give reasons for the grant or refusal of parole. Hence the parole became an instrument of power and control which transformed the prison into a totalitarian institution. Within this environment, rehabilitative treatment took its place as an additional element of the control apparatus a method for inducing timid conformity rather than for encouraging autonomy and self development.121 Rubin122 has argued however that
115 116

Op cit supra n 18 p 963/4. Op cit supra n 25 p 169. 117 Op cit supra n 18 p 965/66. 118 Op cit supra n 25 p 20. 119 Op cit supra n 25 p 20-36, 130-161. 120 Op cit supra n 25 p 22/23. 121 Op cit supra n 25 p 24. 122 Rubin, S (1979) New Sentencing Proposals and Laws in the 1970s. In Federal Probation, 43(2): 3-8.

indeterminate sentences are not an essential feature of rehabilitation and that it can in fact be accommodated within fixed term sentences with remissions for progress. But Hudson goes further to demonstrate that the prison is incompatible with the rehabilitative approach.123 Prisons like schools are pedagogic institutions that stress common characteristics like sex and age in order to cope with people in large numbers. The subjects must attain the required standard through willing and conscious participation. Excessive individuality is not tolerated. Treatment (in its psychoanalytic/medical mode) on the other hand accepts individuality and works with it. Ideally it should be prescribed for the individual and administered individually. This cannot be achieved in a large scale institution.124 Consequently the blame for the destructive and coercive form that rehabilitation took within the twentieth century penal system lies squarely with the prison. But the 1970s debate followed the reasoning that as long as sentences were determinate and were called punishment rather than welfare, sanctions would be acceptable.125 The second ground of objection concerned the net-widening effect of preventive and light-end community correction dispositions and the increased incarceration of juveniles. Despite policies and schemes intended to keep children out of institutions and in their communities, borstal receptions in the UK doubled from 2000 to 4000 between 1952 and 1965.126 Hudson explains that this was because welfare dispositions were tacked on to the punitive infrastructure rather than replacing it. The latter claimed the serious delinquents, and the welfare professionals had to create a soft end clientele for themselves; children, with delinquent elder brothers, living in high risk neighbourhoods, truanting from school or beginning to associate with known delinquents. Additionally some first or trivial offenders were also ceded to them by the system.127 This rendered a category of children who had not committed any misdemeanours vulnerable to various forms of official surveillance and interference. Additionally it led to secondary deviance which arose from involvement with social control processes which converted the casual, one-off delinquent into a persistent offender.128 Thus when decarceration was sought to be achieved by leaving the custodial sector intact and developing the non-custodial sector, system expansion and consequent netwidening was inevitable.129 As Rothman put it, when treatment and coercion met, coercion won.130 The correct way to proceed as shown by an effective experiment in Massachusetts is to close down the custodial sector first and make the serious delinquents the right client group available for community corrections.131 The right wing critique challenged rehabilitation as ineffective and soft on crime. The first point to be made in response is that rehabilitation left most of the offending population untouched because only a small proportion of convicts were selected for
123 124

Op cit supra n 25 p 34/5. Id. 125 Id. 126 Millham, S. et al (1978) Locking up Children, London: Saxon House. 127 Op cit supra n 25 p 149/50. 128 Op cit supra n 25 p 135. Cf. Thorpe, D., Green, C. and Smith, D. (1979) Punishment and Welfare, Lancaster University; Cawson, P (1981) Young Offenders in Care, London: DHSS. 129 Op cit supra n 25 p 150. 130 Rothman, D.J. (1980) Conscience and Convenience: The Asylum and its Alternatives in Progressive America, Boston: Little Brown. 131 Op cit supra n 25 p 155/56.

rehabilitative and non-custodial penalties. The rest were consigned to institutions that were at best reform schools and at worst warehouses.132 As Cullen and Gilbert contend whatever was achieved in the direction of a more humane response to offending in the twentieth century corresponds to the degree to which rehabilitation was allowed to enter the penal system. The most humane prisons were also the most successful in reclaiming dangerous prisoners (exemplified by the cases of Jimmy Boyle and John McVicar) for whom inacapacitation is now the convenient answer.133 It is obviously unrealistic to expect any one type of treatment to work with all offenders but there is evidence that some kinds of treatment work well with some kinds of offenders.134 Psychiatry and psychology may work with offenders who need treatment for their medical or psycho-social problems. But for offenders who are not so affected and whose problems are more practical, treatment is no more effective than fines or even custody.135 A societal response that leaves problems such as housing, finances, jobs or illness un-addressed is unlikely to have any impact on future criminal behaviour.136 Therefore the first task for a sentencer, or a probation officer in a system that is rehabilitative and not repressive is to assess whether the individual needs treatment, counselling or practical help137 or indeed a combination thereof. That it was welfare rather than punishment which was shown the door at the end of the 1970s debate on penal policy138 in England & Wales (with the replacement of the CYPA of 1969 by a punishment oriented Criminal Justice Act - CJA of 1982) rested on a compartmentalised attack on rehabilitation that took place in the shadow of the prison, the inevitability of which was assumed without question. However the most remarkable feature of the 80s decade was the continuous decrease of custodial measures for the known juvenile offender population (both cautioned and found guilty) from 8% in 1981 to 1% in 1990.139 According to Gelsthorpe and Morris this was the outcome of the widespread use by police of the diversionary practice of cautioning. This practice was repeatedly affirmed in Home Office circulars which indicated in the strongest terms that the entry of a young person to the criminal justice system should be delayed for as long as possible and that a prosecution must be the last resort, a step not to be taken unless it was absolutely necessary.140 There is another perspective to this apparent success. The focus and thrust of all progressive but bifurcatory approaches to juvenile justice, including separation from adults, diversion, decriminalisation by raising the age of responsibility and decarceration is to keep at bay a cold impersonal and harmful criminal process that is widely accepted as a necessary evil. Ultimately however these are defensive measures which indirectly prop up and validate the criminal process and reduce statistics without addressing the real issues that concern the children involved. Insecure government in the 1990s has produced a new political consensus based on adherence to opportunism in the form of a reactive punitiveness and continuing
132 133

Op cit supra n 25 p 35. Cullen F. and Gilbert, K. (1982) Reaffirming Rehabilitation, Cincinatti: Anderson. 134 Palmer, T. (1975) Martinson Revisited. In Journal of Research in Crime and Delinquency, 12: p 133. 135 Op cit supra n 25 p 172/3. 136 Lipton, D. et al (1975) The Effectiveness of Correctional Treatment, New York: Preager. 137 Op cit supra n 25 p 173. 138 Home Office (1980) Young Offenders Cmnd 8045, London: HMSO. 139 Op cit supra n 18 p 976/7. 140 Home Office Circular 14/1985.

confusion in the form of a contradictory commitment to both punishment and welfare.141 The foundation for these developments was laid by the symbolic separation of the deprived from delinquent children by a transfer of the civil jurisdiction of the juvenile court to a new family proceedings court142; and the inclusion of 17 year olds within the jurisdiction of a new, entirely criminal youth court which succeeded the old juvenile court.143 The dangers of mixing coercion and welfare (noted above) would therefore retain a continuing relevance in this context.144 Whilst England & Wales regressed into a punitive mode the international community embarked on a silent revolution145 in the 1980s and codified minimum standards for the administration of juvenile justice systems through the Beijing Rules of 1985146 and crystallised some of its fundamental principles in the CRC of 1989 which received near universal ratification. The Beijing Rules are non-binding guidelines and soft law but the CRC is binding at international law. Together they provide an internationally accepted framework of human rights standards against which the domestic systems under review can be measured. Most importantly Article 40.1 of the CRC by adopting the principle of reintegration has not only captured the essence of the ethic of care (which we set out as the sane alternative to the ethic of justice) but resolved conclusively that the legitimate object of juvenile justice is welfare, period.

PART III
REINTEGRATION THE COMING OF AGE

INTERNATIONAL LAW Several features of rehabilitation as practiced by states in the twentieth century made it an undesirable concept to be retained by the CRC. The abuses perpetrated in the name of the assumed right of the state to rehabilitate offenders were well established. Rehabilitation also carried the implication that responsibility rested solely with the individual who could be removed from society for treatment and once restored, released. Reintegration on the other hand rejects the assumption that the causes of delinquency are necessarily individual and views them as the product of a negative process of interaction between the individual and his environment. Basing itself on empirical research (outlined here in Part I) the CRC rejects the punishment approach to assert that delinquency is attributable to social alienation rather than personal iniquity.
141

Ball, Caroline., McCormac, Kevin and Stone, Nigel (2001) Young Offenders: Law, Policy and Practice, (2nd Ed) London: Sweet & Maxwell p 16/17. 142 Children Act 1989. 143 Criminal Justice Act 1991. 144 Cf. Fionda, Julia. New Labour, Old Hat: Youth Justice and the Crime and Disorder Act 1998. In [1999] Crim. L.R. 36; Wonnacott, Camilla. The counterfeit contract reform, pretence and muddled principles in the new referral order. In (1999) C.F.L.Q. 11(3) 271-287; Ball, Caroline. The Youth Justice and Criminal Evidence Act 1999 Part I: a significant move towards restorative justice or a recipe for unintended consequences? [2000] Crim. L.R. 211. 145 Van Bueren, Geraldine (1995) The International Law on the Rights of the Child, Dordrecht: Martinus Nijhoff, p 169. 146 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, UN Doc A/RES/40/33.

The proper societal response is therefore prescribed as the promotion of social reintegration, a view that accords due respect to the child as a dynamic psycho-social entity whose rightful place is within society.147 The process of social inclusion is both the means and the end. The essence of rehabilitation is subsumed within this broad goal minus its coercive and custodial aspects. The continuing relevance of rehabilitation is underscored by the fact that the individual remains a dynamic element even in the absence of desired social change.148 Bringing offenders back to the physical and moral community assumes the existence of a consensus moral community prepared to take them back and popular support for reintegrative policies as opposed to exclusionary penalties.149 Hudson points to the gradual disappearance of the post war welfare consensus in UK due to political and socio-economic forces that gathered momentum in the 1970s. Social divisions, prejudice, mistrust, insecurity and fear have become the norm leading to a demand for ever more exclusionary penalties and more effective methods of control such as curfews, electronic tagging etc. This brings into focus the wider picture and the broad nature of the challenge that must be undertaken in response to delinquency, whether the issue arises in the form of prevention, response to delinquency or rehabilitative after-care. The relevance of social justice as a pre-condition to legal justice is underpinned by the holistic approach of the CRC which unified all the human rights of children and established a holistic and nondiscriminatory framework for their development.150 Gelsthorpe and Morris note that in the UK,
the formal arrangements for youth justice are increasingly becoming linked with other social institutions and processes (schools, the family, neighbourhood, work) and there is ostensible concern to make strong connections with these processes where preventative and healing resources are perceived ultimately to reside.151

This open approach is also the antidote to a series of bifurcating devices, principle of separation, twin tracking with punishment and welfare, minor and serious delinquents which have all been put to good effect to compartmentalise issues and persist with coercion. It champions the human being against being subordinated to abstractions.152 Another clear policy implication is non-differentiation of children in their entitlement to rights guaranteed by the CRC. Child care research and practice since the 1950s has consistently shown that both deprived and delinquent children came from very similar backgrounds but were treated differently by the mere accident of which law delivered them for public action.153 Article 2.1 of the CRC which sets out a principle of interpretation for the whole convention154 prohibits discrimination on the basis of any status, which would necessarily include the status of being a criminal suspect or accused. Such status has no relevance to the independent right of the child to
147 148

Op cit supra n 145 p 172/3. Op cit supra n 25 p 174; Cf. Article 40.4 of the CRC mentions probation as an alternative to institutional care. 149 Op cit supra n 25 p 16. 150 Cf. Article 5 of the Vienna Declaration and Programme of Action which states that All human rights are universal, indivisible and interdependent and interrelated. 151 Op cit supra n 18 p 984. 152 Op cit supra n 25 p 166/7. 153 Murphy, J (1992) British Social Services: The Scottish Dimension, Scottish Academic Press: Edinburgh. 154 Op cit supra n 145 p 38.

protective measures against abuse, neglect or exploitation (Art. 19) and measures that promote his physical and psychological recovery and social reintegration (Art. 39). The failure to recognise delinquents as simply another category of children in need of special measures of care under the Children Act 1989 may thus lead in individual cases to a failure to realise the fundamental object of reintegration in youth justice. Rule 17.1 of the Beijing Rules in setting out the guiding principles for dispositions recognised the conflict between just deserts and rehabilitation and counter-posed the needs of the juvenile with the needs of society. The inclusive approach of the CRC however left no room for an abstract societal interest. According to Article 40.1 the delinquent is to be treated in a manner consistent with his dignity and worth, which reinforces respect for others and takes into account the need to promote the childs reintegration and assuming a constructive role in society. As Van Bueren points out societys needs are viewed as satisfied if the child is supported to reintegrate and assume a constructive role in society.155 The terms of Article 40.1 are closely aligned to the psycho-social well-being of the child (as noted above) with its reference to selfrespect and respect for others. Impersonal, coercive and exclusionary dispositions which denigrate and alienate the delinquent are positively harmful and incompatible with psycho-social recovery. Reintegration pre-supposes the provision of space and opportunity for social interaction and individual growth, which is why Nellis proposed anti-custodialism as the 1st probation value for the 1990s.156 Reintegration is a non-technical concept grounded in social reality. The control theory,157 for example, draws attention to non-legal factors which influence conformity through incentives and disincentives. Seminal human needs such as affection status, stimulation, autonomy, security, money and belief offer sources of control that can drive us towards conformity and divert us from criminality.158 It is folk wisdom that people give up crime when they acquire bonds to the social order.159
A wife or steady girl friend, a job and somewhere to live are far more potent than any form of treatment or punishment yet devised, and the logic of community corrections projects for youthful and young adult offenders is to maintain them in the community until they mature out of crime and delinquency.160

In addressing the issue of personal responsibility John Braithwaites work on reintegrative shaming seeks to break down the techniques of denial and justification within a respectful on-going relationship by using the sort of shaming that is practiced by the good parent, who makes the child well aware of the wrongness of his actions but does not therefore diminish in any way the care she has for him as a person.161 This is a process that entails a heightened sense of empathy for victims. In some cases the victim can be brought directly into the process of exploration and reintegration.162 We shall
155 156

Op cit supra n 145 p 183. Nellis, M (1995) Probation values for the 1990s. In Howard Journal of Criminal Science, 34: 19-44. 157 developed within psychological criminology 158 Roshier, B.(1989) Controlling Crime, Milton Keynes: Open University Press. 159 Op cit supra n 25 p 100. 160 Rutherford, A. (1986) Growing of Crime, Harmondsworth: Penguin. 161 Op cit infra n 171 p 619; Braithwaite, J (1993) Shame and modernity. In British Journal of Criminology, 33: 1-18. 162 Stone, Nigel (1997) Offending. In Martin Davies (ed.) Blackwell Companion to Social Work, Oxford: Blackwell.

now consider the state of empirical knowledge about victims and its relevance to an ethic of care as opposed to an ethic of justice.

VICTIMS WHO CARES? Von Hentigs seminal work in 1948163 challenged the conception of the victim as passive actor by adopting an inter-actionist perspective. He focused simultaneously on the precipitating characteristics of victims and their relationships with offenders. In this way he constructed a range from the completely innocent to the most guilty victim. His purpose was to provide a basis for preventive programmes to reduce the severity and extent of victimisation. Crimes can also impact differentially based on the isolation, resources, vulnerability and previous experience of the victim.164 These human relational issues are all irrelevant in terms of the criminal justice process. In particular, a process which is mainly geared to respond only after a crime is committed can provide little comfort to victims. In Part I we observed how what was originally a dispute between individuals was redesignated as a contest between the crown and the subject and how reparation was replaced by retribution with the state acquiring monopoly over the process as well as the outcome. The victim was reduced in status and deprived of redress which had to be sought elsewhere in a civil proceeding. Yet he/she was also the principal witness whose co-operation the state had an interest in securing. The victims right to compensation has developed gradually. Since 1964 the Criminal Injuries Compensation Scheme made discretionary payments to victims of unlawful violence and the CJA of 1982 made it possible to order compensation by the offender as the sole penalty. Whilst the need to respond to the harm suffered by the victim has become firmly established in judicial practice there has been a failure to address the wider issue of the relationship between retribution and reparation by legislation. The needs of victims have thus been only partially taken on board by the criminal justice process and not as an unqualified commitment to address their full range of physical emotional and material needs. 165 These needs are answered in the UK, not by the criminal justice system but by NGOs like Victim Support who act on the basis that crime victims are likely to be traumatized by their experience and that support from friends, family or neighbours may be insufficient or simply unavailable.166 Ashworth points out that the question of reparation can cause difficulty where there is a divergence between what the offender intended (mens rea) and the actual harm and that this focus undermines the relationship between moral wrong and penal sanction.167 These are issues created and magnified by the rigidity of criminal law and the adversarial spirit of the criminal justice process rather than issues of intrinsic significance when viewed on their own. As noted in Part I, a rational response to crime shorn of its moral and penal elements replaces legal relevance with human relevance providing a breadth of perspective and human goodwill that responds to
163 164

Von Hentig, H (1948) The Criminal and his Victim, New York. Skogan, W.G. (1986) The Impact of Victimisation on Fear. In Crime and Delinquency, 33: 135-54. 165 Zedner, Lucia (1994) Victims. In M. Maguire, R. Morgan and R. Reiner (Eds.) The Oxford Handbook of Criminology Oxford University Press: 1207-1240, p 1237- 40. 166 Id. 167 Ashworth, Andrew (1986) Punishment and Compensation: Victims, Offenders and the State. In Oxford Journal of Legal Studies, 6: 86-122.

every case in the manner perceived to be required guided by general principles 168 alone. Finally an anticipated but significant finding of mass victimisation surveys is that reported crime represents only a fraction of those which take place.169 Moreover the common assumption that real crime occurs only between strangers inhibits both recognition and revelation of physical and sexual violence committed (mainly) against women and children in the private sphere. The closer one looks at these human issues presented by a crime the more damning the evidence is against the individual rights approach of the ethic of justice. There is a strong case for re-framing crimes in terms of a human relational perspective, (perhaps in the manner of a civil cause of action with all relevant issues being arranged thereunder.) Even in the absence of a pre-existing relationship the crime creates one which has consequences for both parties. The consequences for the victim in particular may require an immediate response that cannot await processes of conflict resolution. State responsibility therefor is now established in the case of children.170 A relevant process should use and enable preventative potential within the community.171 It should also not stigmatise and amplify, features which effectively keep domestic crime away from the formal criminal process. We now turn to an ancient method of conflict resolution which promises to remedy these defects and is being increasingly resorted to by several common law jurisdictions.172 RESTORATIVE JUSTICE This has been described as,
a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.173

In principle every person with a stake in the outcome is helped to attend and given a meaningful opportunity to speak and be heard.174 The parties include the victim/s directly or indirectly affected, the latter including family members and members of the community and the offender. They seek, generally with the help of an impartial third party facilitator to achieve a restorative outcome. This may include reparation to the victim and community and reintegration of the offender and victim.175 Participation is based on agreement as to the facts. It must also be based on informed consent at all stages of the process. The outcome is also based on agreement and should contain only reasonable and proportionate measures. Parties are entitled to legal advice before and
168 169

in the form of human rights standards Op cit supra n 166 p 1210-1214. 170 Articles 19 and 39 CRC. 171 Hudson, Barbara (2002) Restorative Justice and Gendered Violence. In British Journal of Criminology, 42: 616-34 p 627. 172 New Zealand, South Australia, South Africa, Northern Ireland. Cf. Law Commission of Canada (2002) From Restorative Justice to Transformative Justice Discussion Paper, (updated 2002-6-25)
URL: http://www.lcc.gc.ca/en/themes/sr/rj/2000/paper.asp#nom8 Viewed: 13 August 2002.
173 174

Op cit supra n 171 p 616. Attributed to Tony Marshall. Braithwaite J. (2002) Setting Standards for Restorative Justice. In British Journal of Criminology, 42: 563-77 p 565. 175 Preliminary draft elements of a declaration of basic principles on the use of restorative justice programmes in criminal matters (2000) ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35.

after the process and minors to parental assistance during the process. The proceedings are confidential.176 Discharges based on agreements are to have the same status as a final judgement or order of a court. The case is to be reverted to the criminal justice system on failure to reach agreement but without prejudice to the offender on sentencing. The UN Declaration also envisages a legal framework with guidelines and provisions governing, conditions for referral, post-process measures, training of facilitators, administration of programmes, standards of competence and ethical rules.177 Flexibility and adaptability is a core strength and there are diverse models of programmes to be found in this present emergent phase for restorative justice, from the South African Truth and Reconciliation Commission to the Youth Justice System in New Zealand. It is a less tidy system, but tidiness seems decisively not a good candidate for a justice standards framework.178 But three common elements are discernible.

Crime is a violation of a relationship among victims, offenders and the community. Responses to crime should encourage the active involvement of victim, offender and community. A consensus approach to justice is the most effective response to crime.179

There is recognition of the centrality of psychological consequences of crime for victims and offenders and its impact on their functioning, recovery and enjoyment of life. The deadly simple empowering feature here is that it involves listening to the stories of victims and offenders, both groups which the criminological literature shows to be disproportionately poor, powerless and young.180 This is also an essential step in holding the offender truly accountable for without understanding the effects of their behaviour it is unlikely that he could genuinely take responsibility for the offence and its consequences. Participants are urged to listen respectfully but victims are not urged to forgive as this must be a genuine movement of the heart. The causes of crime may be weighted more with an individual characteristic or a community factor like gang association. Reparative and reintegrative measures can be tailored to address these specific concerns. Both autonomy and community can be improved. Restorative justice is thus based squarely on the value system that characterises the ethic of care. Braithwaite181 advocates it as an instrument for realising the human rights of people and their republican freedom by maximising co-operation and limiting the exercise of power in the context of conflict resolution. (This is a return to the people of a measure of control over their own lives taken away by Henry II in the twelfth century.) But he also warns that state sanctioned human rights are vital for regulating the possible tyrannies of informal justice.182 Accordingly, the principle of nondomination posits an equal concern with each stakeholder, and the need for careful
176 177

Id. Id. 178 Op cit supra n 174 p 576. 179 Law Commission of Canada - Op cit supra n 174. 180 Op cit supra n 174 p 564. 181 Op cit supra n 174. 182 Id.

preparation to minimize power imbalance both backstage and front stage.183 Advocacy groups have an important role in supporting disadvantaged persons. Moreover no infallibility is claimed, but a promise to learn from mistakes.184 Restorative justice therefore is a victory for substance over form and a clear shift from a reactive to a pro-active response to crime. It ought to replace the punitive, court based adjudicatory and punishment model which could however remain relevant as a factfinding mechanism. State sanctioned criminal conduct and human rights violations (otherwise called punishment) in response to delinquency and criminality must be seen for what it is. This 1000 year old criminal career has generated immense suffering for offenders, victims and their loved ones. It reflects no credit on those who perpetuate it and must be dismantled. The real issue is how the transition is to be achieved. We must readily acknowledge however that this task in England & Wales appears monumental. The following concluding observations are therefore made in the hope of further illuminating the choice to be made.

CONCLUSION It is envisaged that many useful legal concepts from the criminal and civil laws will enrich and contribute towards the attainment of restorative justice. For example the principle of proportionality would guide reparative measures against offenders. This however does not mean that restorative justice by coming to replace the old system would also share any of the fundamental objects or purposes of that system or that it should adopt a retributive mantle in the name of effectiveness.185 Restorative justice as a manifestation of the ethic of care speaks a completely different language in which retribution does not figure, nor symbolism. This requires some clarification of that most loosely used word in an otherwise hair-splitting legal profession justice.
The term 'justice' is ambiguous and dangerous, and in its name more harm than good is done to humanity.186

Harm is attributed to intolerance.187 Tolerance should therefore lead to justice, but what does it mean? Tolerance is based on proper understanding and it leads not to inaction but to positive action. Proper understanding is a genuine acknowledgement of the inherent dignity and worth of every human being as well as their differences. Absence of prejudice leads to an objective appreciation of the positive and negative aspects of
183 184

Id p 566. Id. 185 Op cit supra n 171 p 628. 186 Op cit supra n 28.

187

Cf. The five point Declaration of Principles on Tolerance proclaimed and signed by the Member States of UNESCO on 16 November 1995. URL http://www.sdnbd.org/sdi/international_day/tolerance/principles.htm Viewed: 17 Sep. 02

human personality. Judging is present but it sub-serves the purpose of deciding the most suitable course of positive action. It does not diminish tolerance. Law enforcement for example, is not pretty; force may be used, but never aggression, appreciating however, that a thin line separates the two. Intolerance, or bifurcated tolerance which tolerates only those we like or who adhere to certain standards, is based on ignorance, the dualism of right and wrong and leads to negative action. Each person is judged in this way to be given his due. Tolerance is conditional on conformity. Conformists are in and the rest out. This is the ethic of justice which affirms good and denounces evil ignoring the impermanence of human nature. Justice here is inseparably caught up with the egoistic concept of winning and losing and since law takes the side of power it becomes an instrument of domination. The same logic that sustains imperialism (the supposed God given right to rule) epoch after epoch in the global sphere, sustains criminal law in the local sphere. Justice is a result; symbolism, or pretence is a perceived necessity in this climate of delusion to mask or dress up reality. This ethic of justice is not justice at all but ignorant expediency. The ethic of care is justice in action. Symbolism is superfluous. Right and wrong is acknowledged but placed in perspective. Crime is not invested with finality and hopelessness. Life goes on. It is an opportunity to start afresh and channel energies in a positive direction. No one is left out. Humanity is affirmed. We end with a simple analogy. Fires are put out by water. If a fire is great and requires more water, do we ration the water? Or worse still, do we fight fire with fire? Judging must serve caring there is no other way.

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