In early September Tony Blair made a speech in which he laid down the contours of New Labour’s so called ‘respect agenda’. He emphasised familiar themes and rationales, and differentiated between what he called the ‘law-abiding majority’ and the ‘unruly minority’. In many respects Blair’s speech echoed messages that have featured in major strategic policy documents including Cutting Crime, Delivering Justice: A Strategic Plan for Criminal Justice, published in 2004, in which the government set out its plans to ‘protect the innocent’ and ‘pursue the guilty’. Moreover, the ‘agenda’ is ultimately derived from the US-influenced ‘tough on crime’ sentiment first expressed by Blair in 1993.
Indeed, it was three days after returning from a visit to the US in January 1993, as shadow home secretary, that Blair first coined what has since become a hackneyed New Labour soundbite: ‘Tough on crime, tough on the causes of crime.’ Blair had been persuaded, by what he had seen and learnt in the US, to follow the example set by Bill Clinton’s New Democratic Coalition. Clinton had apparently repoliticised crime to positive electoral effect, and Blair intended to do likewise. While still in opposition in the early to mid-1990s, therefore, senior New Labour politicians increasingly adopted punitive rhetoric and symbolism with reference to their evolving criminal justice policies. In particular, responses to young offenders and youth crime were characterised by a consolidating intolerance and this culminated, following the election of the first New Labour government in May 1997, in the publication of a major White Paper, ominously entitled No More Excuses: A New Approach to Tackling Youth Crime in England and Wales. Clinton adopted and applied the notion of ‘zero tolerance’ in the US. Blair settled for ‘no more excuses’ in Britain.
From 1997 the three successive New Labour governments have formulated the most radical overhaul of the youth justice system since the inception of the first juvenile courts in England in 1908. Even a schematic overview of key legislative developments conveys the extent, reach and depth of policy reform, together with its ‘toughness’ priorities.
The Crime and Disorder Act 1998 served to completely restructure the youth justice apparatus. It also introduced a range of new, often repressive powers and sentencing disposals. The Youth Justice and Criminal Evidence Act 1999 introduced a new interventionist sentence, the referral order, for almost all children and young people appearing in court on first conviction, effectively making it a mandatory sentence. The Criminal Justice and Court Services Act 2000 increased the courts’ powers to penalise the parents of children who do not attend school regularly. The Powers of the Criminal Courts (Sentencing) Act 2000 made provision for the electronic monitoring and surveillance of children. The Criminal Justice and Police Act 2001 extended the application of child curfew schemes, the powers of the courts to send children to prison and other locked institutions on remand, and it further applied the electronic surveillance of young people. The Police Reform Act 2002 introduced interim Anti-Social Behaviour Orders that can be imposed prior to a full court hearing. The Anti-Social Behaviour Act 2003 was implemented following the publication of a White Paper entitled Respect and Responsibility: Taking a Stand Against Anti-Social Behaviour.
The White Paper set out a starkly authoritarian vision of a ‘something for something society’ where rights are reserved for the ‘responsible… decent law-abiding majority’, while the so called ‘out of control minority’ face a raft of new punishments and sanctions. Children are especially targeted by the provisions of the act. Furthermore, the Anti-Social Behaviour Act also made the parents of children regarded as being ‘disorderly’, ‘anti-social’ or ‘criminally inclined’ eligible targets for formal statutory orders. The Criminal Justice Act 2003 introduced powers to drug test children under the age of 16 and further extended powers to impose parenting orders. The Cleaner Neighbourhood and Environment Act 2005 covers a wide range of ‘nuisance behaviours’ and ‘incivilities’, together with ‘environmental offences’. With specific regard to children and young people, provisions in relation to ‘littering’, ‘graffiti’ and ‘other defacement’ are the most likely to be invoked. The Serious Organised Crime and Police Act 2005 contains a number of provisions that might well be applied to children, young people and/or parents in neither ‘serious’ nor ‘organised’ circumstances. Of particular note are extended stop and search powers, various provisions in respect of anti-social behaviour, and the imposition of parental compensation orders whereby parents can be made liable for the payment of compensation imposed in relation to the behaviour of children under the age of ten.
New Labour’s expanded youth justice apparatus targets and embraces a widening population of children. Underpinned by constructions of ‘risk’, and tilted towards ‘anti-social’ and/or ‘disorderly’ children in addition to child ‘offenders’, interventions are more broadly applied, and net-widening processes are evident. Children (and in some cases their parents too) who are deemed to have ‘failed’ or be ‘failing’, to be ‘posing risk’ and/or to be ‘threatening’ (either actually or potentially) are increasingly drawn into the formal youth justice/youth offending nexus. In this way, the age of criminal responsibility becomes more fluid, as interventions are targeted not only at the ‘criminal’ but also at the ‘near criminal’, the ‘possibly criminal’, the ‘sub-criminal’, the ‘anti-social’, the ‘disorderly’ or the ‘potentially problematic’ in some way or another.
The logic of pre-emptive initiatives means that guilt is no longer the only founding principle of state intervention in England and Wales. Instead this can be triggered without an ‘offence’ being committed, premised instead upon a ‘condition’, a ‘character’ or a ‘mode of life’ that is adjudged to be ‘failing’ or posing ‘risk’. It follows that the new modes of risk classification and pre-emptive intervention are unencumbered by such legal principles as ‘the burden of proof’, ‘beyond reasonable doubt’ and ‘due legal process’. Instead intervention is triggered by assessment, discretion and the spurious logic of prediction and probability. It is inevitable that such processes are mediated through the structural arrangements of class and ‘race’. Thus working class children, and children from black and minority ethnic communities, increasingly face judgement, and are exposed to criminalising modes of state intervention – not only on the basis of what they have done, but what they might do, who they are or who they are thought to be.
From clampdown to lockdown
An increasing reliance on penal detention is the most conspicuous element of New Labour’s ‘toughness’ agenda. The cumulative effect of developments in youth justice law and policy in England and Wales since 1997 has been to substantially expand and diversify custody. While it is true to say that such trends were initiated prior to the election of the first New Labour administration, they have simply consolidated since that time. The total number of custodial sentences imposed upon children rose from approximately 4,000 per annum in 1992 to 7,600 in 2001, a 90 percent increase. During the same period the child remand population grew by 142 percent. In March 2004 alone there were 3,251 children (10 to 17 years) in penal custody in England and Wales. Greater use of penal custody for children is made in England and Wales than in most other industrialised democratic countries in the world.
Within the general trend of custodial expansion and diversification (where the private sector plays an increasingly significant provider role), a range of further problematic penal processes are being ground out. First, in addition to substantial increases in the numbers of children sent to custody, sentences have also increased in length, and proportionately more children are sentenced to long-term detention. Second, New Labour law and policy have provided for the detention of younger children and, as a result, the detention of children under the age of 15 years has become routine. Third, the expansionist drift has been disproportionately applied in terms of gender, and the rate of growth is higher for girls than boys. Furthermore, girls are regularly detained alongside adult prisoners, a practice that has been seriously questioned by penal reform organisations and the chief inspector of prisons alike. Fourth, racism continues to pervade sentencing processes and custodial regimes. For example, black boys are 6.7 times more likely than their white counterparts to have custodial sentences in excess of 12 months imposed upon them in the crown court, and black child prisoners are more likely than white detainees to encounter additional adversity within custodial institutions owing to racist practices. Fifth, for all child prisoners the jail house, however it is configured, remains a dangerous place. The emotional and psychological wellbeing of child prisoners is routinely damaged, literally thousands are physically harmed and, at the extremes, child deaths in penal custody continue to occur with distressing regularity. Sixth, the failings of penal custody to prevent children from re-offending are well established. In October 2004, for example, a parliamentary select committee reported that reconviction rates stand at 80 percent with regard to released child prisoners and, despite substantial investment of public money in new sentences, regimes and custodial institutions in England and Wales, such failure continues to apply.
Injustice and the violation of human rights
In October 2002 the United Nations Committee on the Rights of the Child formally reported its ‘deep concern’ at ‘the high increasing numbers of children in custody’ in England and Wales, and its ‘extreme concern’ regarding ‘the conditions that children experience in detention’, including the ‘high levels of violence, bullying, self-harm and suicide’ among child prisoners. Similar concerns have also been expressed by a wide range of penal reform organisations and children’s human rights agencies, together with the most senior personnel from eight major statutory inspectorates who concluded, in 2002, that child prisoners ‘face the gravest risks to their welfare’. Furthermore, earlier this year the Council of Europe’s commissioner for human rights noted that ‘one can only conclude that the prison service is failing in its duty of care towards juvenile inmates’.
It is difficult to find the ‘justice’ in New Labour youth justice policy. Moreover, it defies criminological rationality when measured in terms of providing crime prevention and community safety, and it systematically violates the human rights of the children and young people caught up in its wake. Rather such responses are mired in a US-inspired politics of ‘toughness’ that is morally bankrupt and utterly disingenuous.
In the Care of the State? Child Deaths in Penal Custody in England and Wales by Barry Goldson and Deborah Coles was published by Inquest in 2005.
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