Academic journal article Australian and New Zealand Journal of Criminology

Procedural Safeguards for Young Offenders: Views of Legal Professionals and Adolescents

Academic journal article Australian and New Zealand Journal of Criminology

Procedural Safeguards for Young Offenders: Views of Legal Professionals and Adolescents

Article excerpt

We investigated the importance of procedural safeguards for young offenders, identified by adolescents and legal professionals. Comparisons were made of the ratings of 17 individual procedural safeguards related to the story of a hypothetical young person brought before the court for stealing $50. Procedural safeguards were rated by 362 students from Year 9 and 370 from Year 11 at two Catholic secondary schools, and by 881 members of the legal profession. There were differences related to professional role and stake in proceedings in the emphases of judges and magistrates compared with barristers and with solicitors, and in the emphases of all legal professionals compared with those of the students. These data on the emphases of young people on representation by lawyers and parents, having a say, and some control are pertinent as the basis for understanding and promoting the procedural rights of young people when they are being dealt with by authoritative adults.

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The need to secure procedural fairness for children has been forcibly brought to the attention of justice and welfare systems in two major reports on children's rights (Australian Government, 1995; Australian Law Reform and Human Rights Commissioners: ALRC/HRC, 1997). Each report took up directions of the UN Convention on the Rights of the Child (CROC, 1989) about the ways children should be treated by adults in a range of social institutions, and each indicated areas needing reform.

Children are not being given their full rights in the procedures that authoritative adults use to communicate with them or to communicate on their behalf. Legal representation, the rights of young offenders to "have a say" and explain what happened, and the opportunity to ask questions or to appeal--all are criteria for securing procedural fairness. Unfortunately, these criteria are not always observed in the Australian justice and welfare systems that deal with young people (e.g., ALRC/HRC, 1997; Cronin, 1997; Nicholson, 1999; Sidoti, 1998).

The problem is not peculiar to Australia. In the United States, for instance, political expediencies and lobbies for parents' rights made it particularly difficult for legislators to move towards ratifying and implementing the CROC (Levesque, 1996). The Australian implementation hold-up, in contrast, seems to be due not to ideology as much as to lack of awareness, resources and training (e.g., ALRC/HRC, 1997; Cashmore, 1997; Cronin, 1997). Cashmore (1997) identified a particular aspect of poor implementation of children's rights: the failure to recognise the abilities of young people to understand their own needs and dues and to contribute sensibly to official proceedings. Officials, she argued, should carefully consider developmental findings that adolescents and children are able to participate in proceedings and to make reasonable assessments of what constitutes their fair treatment by adults (e.g., Fry & Corfield, 1983; Cashmore & Bussey, 1994; Ruck, Abramovitch, & Keating, 1998).

Yet, despite the acknowledged importance of the procedural side of children's rights, and despite a large body of research on the significance of procedural issues for adults (for a recent review see Tyler, Boeckmann, Smith, & Huo, 1997), there has been little systematic investigation of the significance of procedural safeguards for young offenders. Particularly neglected is any matching of young people's perceptions of procedural criteria with the criteria endorsed by the adults who are likely to deal with them in social institutions.

In this article, we take up the challenge, analysing the views on procedural safeguards for young offenders expressed by the groups who constitute the key actors in any young person's court appearance. These groups were adolescents (from whose ranks young offenders are likely to come) and members of the legal profession who function in different roles in court--judges and magistrates as decision-makers in control of proceedings, and barristers and solicitors who serve the court and the offender. …

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