INTRODUCTION
the problems of society become most visible when change occurs, and recent decades have brought immense social and economic changes
(Pampel, 2000: 52).
This can be revealed most clearly in the sociological aspects of youth crime. However, it has also been claimed that social policy should evaluate how policies impact on peoples’ lives (Blakemore, 1998: 5). Durkheim noted that society works best when it exercises control over individuals (Pampel, 2000: 72). Acceptable behaviour is enforced through law and morality which is maintained through rules and principles: the cement of society (Devlin cited in Elliott and Quinn, 1998: 449). This ‘cement’ illustrates legal moralism that has been identified as ‘socially significant‘ (Cotterrell, 1989, Page 1). Accordingly, an analysis of law’s conceptual structures (Cotterrell, 1989, Page 3) could be ascertained and the importance of shared values emphasised, ultimately influencing individuals’ behaviour (Pampel, 2000, Page 57).
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This has been reflected in a decline of organic solidarity, differentiating society’s collective conscience, and thereby creating an environment for an increase in crime. This philosophy of inter-related support has been recognised as structural functionalism which, taken to extremes, acknowledges that poverty and crime are normal and natural functions within any healthy society (Pampel, 2000, Page 75). The rule of law should represent the ideal of a universal goodness exhibiting no negative impact on any given society, and no negative characteristics that could apply to its nature according to Thompson (Thompson, 1975, Page 266). Unfortunately, it appears to be this concept that has swung too far in the favour of society’s miscreants, to the detriment of their victims, the communities in which these offenders live, and the weaker members of society, prompting the current debate on victims’ rights and David Blunkett’s intentions to re-address the balance to deliver real justice to victims and the wider community (Blunkett, 2002b).
This essay evaluates the wider issues surrounding the criminal justice system, social policy and how feminism and the study of gender impacts on these sectors. Classicism and positivism are particularly relevant to any study of criminology and lead to an introduction of criminological theories which attempt to put feminism into the context of social policy within the criminal justice sector. Crimes amongst the youth might also be considered to be a reflection of the current social trends and this facet has briefly been evaluated in terms of social environment. The conclusion summarises many details introduced in this essay.
2. DISCUSSION
2.1 Definitions of crime
The Royal Commission on Criminal Justice was set up to:
examine the effectiveness of the criminal justice system in England and Wales in securing the conviction of those guilty of criminal offences and the acquittal of those who are innocent (Zander, in Martin, 1998).
The Runciman Commission made 352 recommendations in 1993, from police investigations to disclosure of evidence (Field and Thomas, 1994 cited in James and Raine, 1998: 40). All aspects of the criminal justice system came under scrutiny, with 600 organisations contributing to its evidence (Martin, 1998: 115). During this period, the Criminal Justice and Public Order Act 1994, the Criminal Appeal Act 1995 and the Criminal Procedure and Investigation Act 1996 were all implemented, with varying interpretations and capricious emphases which altered according to Management changes.
Pampel observes, however, that:
the problems of society become most visible when change occurs, and recent decades have brought immense social and economic changes
(Pampel, 2000: 52).
Durkheim, meanwhile, noted that society works best when it exercises control over individuals (Pampel, 2000: 72) with Weber maintaining that:
societies work more smoothly when the use of power has legitimacy in the eyes of both the rulers and the ruled (Pampel, 2000: 113).
Deterrence, retribution, rehabilitation and incapacitation constitute the four major theories of punishment. Deterrence aims to reduce crime through threat of punishment, or through its example. The concept is that the experience of punishment would create an impact unpleasant enough to prevent any further offence. Penalties are established to prevent crime being contemplated, with the idea that the example of unpleasant consequences would make potential criminals reconsider any future offence. Retribution requires an offender to contribute community-based endeavours through proportionality related to the crimes committed. The concept involves cleaning the slate through enforced labour to account to society for any misdemeanour.
With the intention of better justice through more consistent sentencing, the White Paper preceding the Criminal Justice Act 1991 suggested that convicted criminals get their just deserts (HMSO, 1990a). This concept does actually limit the State’s power through limiting exemplary sentences, achieving parity when two offenders receive similar punishments for similar crimes. The National Victim Support Programme was considered a way forward with respect to society’s acceptance of restorative justice but both of the major political parties have pursued half formed and in many ways half hearted policies in relation to victims of crime. There is little indication of change in this area (Newburn and Crawford, 2002: 117).
Conformity through inner positive motivation exemplifies the theory of rehabilitation, although it has been criticised for disparity in proportionality. The concept is not based on the degree of offence committed or focused on the criminal’s past, but on future rehabilitation to preclude re-offending through changes of circumstances. Conversely, incapacitation recognises that some offenders fail to respond to deterrence or rehabilitation and continue to commit crimes as and when an opportunity to do so presents itself. For criminals with this mindset the only option is protective sentencing to prevent further crimes being committed, thereby punishing the offender for crimes committed with a further implication of punishment for future crimes that could be envisaged if released.
An equally important part of restorative justice must be in measures to prevent crimes being committed. Funding of 6 million has been invested in a Government programme to reduce crime. Some of these measures include restorative justice, enforcement of financial penalties, CCTV initiatives, treatment of offenders, youth inclusion initiatives, targeting policies and intervention work in schools To be effective in developing suitable policies the criminal justice system need to approach the problem from different angles simultaneously, and adopt a policy of co-operation and co-ordination across all involved parties. Since the inception of the Regional Crime Squads (South cited in Maquire, 1994, 423), co-operation has existed across autonomous police forces, and surveillance & intelligence squads can acquire information which, along with co-operation from the other agencies which make up the criminal justice system, can be collated and used to prevent some of the worst excesses of violence and crime erupting.
Novick argues that the basis of the State is ‘a need for a single and efficient protective association in a territory‘ (McCoubrey & White, 307) with Jacques considering that ‘economic efficiency needs to be assessed in respect of its impact on human feelings, on community and on social relationships and the quality of life in society‘ (Jacques, 1976, 15). Adjudication provides a formal mechanism for resolving disputes, with rules of change available to deal with new problems requiring further elucidation and rules of recognition involving prerogative powers and the sovereignty of Parliament. These rules do not account for those natural rules which acknowledge those inherent fundamental human rights. According to Finnis (2002), each individual is aware that deviation from society’s code of behaviour would result in sanctions being applied to avoid injustice. The ethos Finnis applies to his explanation of retribution is considered to rectify the distribution of advantages and disadvantages by depriving the convicted criminal of his freedom of choice in proportion to his unlawful act.
Regardless of theories, an escalating scale of crimes continue to be committed, with 5.2 million offences recorded in England and Wales during 2000 (Recorded Crime, HMSO Press Release, 19/01/01) which, when compared to 3.87 million in 1989 and 479,40,018 in 1950, has an effect on long term projections in the prison population to 2008 (British Crime Survey 2001 – 2002). Evidence of this was exhibited when the disturbances in Strangeways prison took place in 1990, prompting the Woolf Report (Custody, Care and Justice, HMSO, 1991). It was published as a White Paper in 1991 and highlighted the relationship between overcrowding in prisons and the maintenance of control, promoting ongoing discussions about the aims of imprisonment.
Meanwhile, the crime response and solving rate has fallen from 45% to 29% despite the number of police officers having increased from 63,100 to 126,500 (British Crime Survey 2001 – 2002). Maguire suggests that:
increasing numbers of police officers, an increase in telephones making reporting easier, increasing use of insurance, and reduced levels of public tolerance to violence have all contributed (Maguire, cited in Croall, 1997).
Stern recognises the system often precludes dedicated people from a more effective route of exacting retribution (Stern, 1989: 247). The diversity of ideas and practices associated with the restorative justice movement exemplify the difficulties associated with the concept. Johnstone (2003) highlights the paradigm of justice associated with practical experimentation that underlies the values and ideas which involve a number of models of theoretical law covering criminal and civil law together with restorative justice. The relevance of this earlier part of the essay reflects the ethos of restorative justice: this is not a new concept, nor can it be viewed in isolation.
2.2 Classicism, Positivism and Realism
The divergence of positivism from its precursor, classicism, was described by Austin as ‘a rule laid down for the guidance of an intelligent being by an intelligent being having power over him’. (Austin, 1995: 9). Parallels with this concept can be illustrated within the feminist model whereby women were classed as irrational beings and of secondary importance to men. It has been acknowledged that criminological theories have been developed by men for men and attempts to categorise women offenders in accordance with these precepts fails to be applicable (Gelsthorpe and Morris, 1990: xii-8). In other words, men have acquired a dominant position in society. Left realism reflects this dominance. The ethos of left realism illustrates that certain types of behaviour that is more prevalent amongst the less powerful would be classed as criminal. Criminal laws were then introduced to reflect this concept. Rather than the criminal being regarded as an acquiescent offender, left realism would have them portrayed as a victim of society.
Furthermore, it is from the concept of left realism that the notion of a number of ‘actors’, involving the offender, the police, the victim and the criminal justice system has developed. Left realism distinguishes between a macro level of crime theory and a micro level, the former involving the sociological aspects and the latter a more micro level involving an individual and personal viewpoint of crime (Lilly, Cullen & Ball, 1995) and takes into account the role of the victims of crime. Constraints on space preclude a detailed discussion on left and right realism, but an overview identifies four important factors which are regarded as being inter-related and which contribute to a holistic image of crime on both a micro level and a more integrated macro level (Young, 2002). The various theories, such as Labelling Theory, represent right realism and tend to focus on the offender and the reasons why they acted in the way they did.
The emphasis on feminism within the field of criminology evolved through the ethos of left realism, where male dominance was recognised for its fundamental contributions to traditional criminological theories. A universal assumption relates to women’s particular role within society and, accordingly, studies of women offenders are considered particularly relevant to the sociological facets such as morality and economic situations (Smart, 1976). It has been recorded that 84% of known offenders in 1984 were men, from which Heidensohn notes:
Women commit a small share of all crimestheir crimes are fewer, less serious, more rarely professional, and less likely to be repeated (Heidensohn, 2002, 491).
Furthermore, according to Barclay (1995, page 20), just 8% of women were convicted of an indictable offence from a population born in 1953 (cited in Heidensohn, 2002, 494). It must be noted that, whilst violence is most often perpetrated by men, 1 in 5 occurrences of violence against women were committed by other women (Coleman and Moynihan, 1996, page 97). According to Gelsthorpe’s model, however, any studies focusing on women’s criminality often tend to focus on their gender rather than the crime itself (1986: 138 – 149), resulting in sweeping generalisations being made and an assumption that women are ‘mad not bad‘ (Lloyd, 1995: xvii cited in KeltaWeb, 2005).
Taken further, it has been suggested that laws are constructed and enforced by men to the disadvantage of women (Burke, R, 2001). Criminology from the feminist perspective is exemplified through either liberal, radical, Marxist or socialist models, the latter also incorporating post-modernism and eco-feminism. The significance of the feminist stance within the criminal justice system relates partly to society’s perception of their biological function and lack of rationality, in accordance with Lombroso’s theories of atavism. This positive philosophy is a disparate variation from classicism, and was introduced into criminological theory by Lombroso, Ferri and Garofolo (Williams and McShane, 1991: 35) although it was noted that ‘They failed to find the numbers of ‘born female criminals’ marked by physical, atavistic traits which they anticipated’ (Heidensohn, 2002, page 492). Heidensohn notes, however, that the evidence of Lombroso and Ferrero’s work has survived whereas their equivalent research relating to men did not (Heidensohn, 2002, page 493), although other research revealed the importance of sociological and environmental factors (Heidensohn, 2002, page 493).
The distinct theories of classicism and positivism have been recognised in criminological studies as the two major hypotheses in the science of penology, conceding criminal anthropology as inherent in identifying criminals through their genetic structure, likening it to atavism (Lombroso, 1876). All people are considered equal according to classicist precepts and governments are created by those individuals to protect the people’s rights through the recognition of a social contract (McCoubrey and White, 1999: 60 – 84). Classicists aspire towards civil rights, realised through the law as a system of due process. It is this emphasis on the social contract that compounds the deviance as a moral offence against society. Punishment is proportional to the seriousness of the offence and can only be justified to preserve the social contract and deter others (Williams, 1997: 8).
The constrained concept of Classicism identifies as autonomous a person who is the result of their environment. Positivism, however, has been documented as either internal, [assuming an atavistic involvement of the psychological or biological aspect], or a sociological aspect of positivism which is outside an individual’s control (Burke, 2001: 272) and assumes a dependency in individuals. Positivists approach deviance from a scientific perspective which enables deviance to be rectified through a combination of power and knowledge. The correlation between positivism and criminological theory identified criminals through an inherent genetic structure, perceived as atavistic features edifying villainous characteristics which could be identified through isolationist principles and surveillance experiments and through case studies (Lombroso, [1876] in Williams and McShane, 1991: 35).
These sociological studies exhibited a reciprocity which was attributed to a specific social order, deviation from which society recognised as a criminal act. Positivist theory attributed this deviation to an abnormality that could be treated, with the hypothesis suggesting that criminals could be reformed. As the final result was intended to protect society from harm, punishment was sanctioned to provide treatment, not to punish, with cognitive treatments involving group therapy sessions and the use of drug therapies to achieve these objectives. Conversely, Bentham and Beccaria propounded the classical theory of fundamental rights associated with natural law. Their utilitarian principles of autonomy, liberty and rationality acknowledged deviance as a rational act against the rules of society and from which these miscreants needed to be dissuaded through the application of punishments (Burke, 2001: 270).
2.3 Criminological Theories
Hobbes’ observation of human actions being ultimately self-serving, including the concept of morality, related cognisance to a state of nature which guarantees the survival of the fittest. Classicists such as Hobbes, Bentham and Beccaria considered that deviance is an inherent characteristic in the psyche of all individuals (Gottfredson and Hirshi, 1990), displayed as an expression of human rationality towards the presence of bad laws (Beccaria, 1963). Beccaria suggested that punishments should be consistent and logical and bound within the legal system.
From the basis on non-conformity to society’s rules, deviance has been regarded as a miscreant’s response to temptation and the exercise of their power over others. Use of a structural method elucidates relationships between a hierarchy of individuals and groups which have been considered to be inherent within the structural approach to criminology and, equally important, society’s reactions to criminal behaviour. Crime tends to exhibit specific reactions against deviance, evidence of which can be seen with the Labelling Theory (Lemert, 1967) which focuses attention on the hierarchical role of crimes in society.
Control theory, meanwhile, unearths links between individuals and institutions, for example family background and upbringing and corresponding behavioural actions and reactions. Hagan relates this philosophy to what he terms the structural study of crime (Hagan, 1988: 3) and the Power-Control Theory which plays a significant role in explaining the social distribution of delinquent behaviour through the social reproduction of gender relations (Hagan, 1988: 1 – 287) and affects the social distribution of delinquency. Moreover, one important aspect of this theory is the ethics associated with crime and delinquency, for example, the effects of gender on criminality. Gottfredson and Hirschi (1990), meanwhile, suggest that classicism is revealed through the control theories which exhibit consequences painful to the individual. (Gottfredson and Hirschi 1990)
Positivism in relation to criminology depended on the scale of rationality between free will and determinism according to precepts of Cesare Lombroso whose explanations of criminal behaviour resulted in the ‘criminal born’ man or woman who exhibited physical attributes leading to their recognition as criminals, a situation not supported by Durkheim. Too many variables made Lombroso’s theory precarious but his typologies were correlated between certain offenders committing certain kinds of crime (Gottfreddson and Hirschi 1990). A number of other theories exist to explain a psychological or sociological basis to the science of criminology. Bandura and Eysenk studied observational learning, conditioning and personality traits, whilst the Strain Theory and the Anomie Theory of Merton blame environmental pressures on deviance, with the Subculture Theory attributing lack of attainment to society’s expectations to be at the heart of offending.
2.4 Sociological Aspects of Youth Crime
Whilst all people might be considered equal according to classicist precepts, with governments created by those individuals to protect the people’s rights through the recognition of a social contract (McCoubrey and White, 1999, Page 60 – 84), David Blunkett singles out a specific sector of society by suggesting that:
nearly three quarters of street crime offenders are under 17 and a hard core five per cent of juveniles are responsible for 60 per cent of offences for their age group (Blunkett, 2002c).
Clearly, despite the introduction of innumerable projects designed to re-integrate offenders back into their communities, the growth in lawless behaviour has not diminished. Many measures to restrain unacceptable behaviour are now available, amongst which are Youth Offending Teams, Final Warning Schemes, Detention and Training Orders, Acceptable Behaviour Programmes, Parenting Orders, Reparation Orders and Anti-Social Behaviour Orders (Blunkett, 2002c) although, retrospectively, little appears to have improved.
In December 2003 Lord Falconer of Thoroton emphasised that this:
crime and anti-social behaviour corrupts communities, eating away at the fabric of the way we all want to live our lives
(Lord Falconer, 2003).
An increasing lack of morality appears to be more prevalent within modern society, with Chief Superintendent of Greater Manchester Police describing these amoral youths as feral (The Times, 2005). Despite all the legislation at the disposal of the criminal justice system, however, the ‘yob culture’ appears to be endemic, with the vulnerable in society more at risk of becoming victims than ever before. The media report lurid headlines on a daily basis: Beaten to death on his doorstep (Daily Mail, 2005); Beaten up on Video Phone (Daily Mail, 2005); Hoody ban eases shoppers‘ fear (Daily Mail, 2005, page 8). The edition on May 19th 2005 reported how ‘thugs attack a funeral car‘ by launching an 8 foot length of wood through the windscreen of the car travelling immediately behind the hearse. It has been reported that some forces are not making good use of legislation and tackling the imitation firearm problem (Deputy Chief Constable, Daily Mail, 2005, Page 8) when children, some as young as 13, routinely carry replica BB guns, which can cause serious injury to targets up to 30 yards away, around the streets.
CONCLUSION
In 2002 the Home Secretary intended:
to deliver real justice to victims and the wider community and strike a fair balance between the rights of victims and the accused (Blunkett, 2002a).
The Legal Action Group suggest that victims’ and defendants’ rights are mutually incompatible (Cape, 2004, page 1) and suggest that victims rights are not being catered for; their rights are neither acknowledged nor respected. However, they also ascertain that, in making it easier to convict defendants is not in the best interests of the victims. The fragility between rights to security and freedom and the obligation to protect communities, reflects a natural result of shared morality without which rules would lack meaning (Pampel, 2000, Page 67). This factor was clearly recognised by David Blunkett who acknowledged the public felt that the system had swung too far in favour of the accused (Blunkett, 2002a). This intensely deep-rooted problem of lawlessness within communities cannot be solved by the police alone. Henham observes that this can only be achieved through:
disregard of formal legal controls which prove an obstacle to the production of a high conviction rate although he acknowledges that due process maintains an adherence to courtroom procedure and protection of the individual (Henham, 1998, Page 592).
Many organisations have highlighted the growth in recorded crime despite measures in place to punish the offender. Punishment falls into various areas from incapacitation to retribution, deterrence to rehabilitation. A large number of theories abound, all attempting to explain the reasons behind criminal actions. These theories investigate the backgrounds of criminals, their psychological and physical attributes and their positions in society together with their abilities to cope with expectations placed on them by society. As yet there has been no definitive answer and, due to so many variables, there possibly never will be. Controversially, Durkheim believed that a certain amount of crime failed to harm society and was normal and valuable in a healthy society (Cotterell, 1992: 159), with the ideas of right and wrong being reaffirmed through the existence of crime and punishment (Pampel, 2000: 59).
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This reflects a natural result of shared morality without which rules would lack meaning (Pampel, 2000: 67), promoting the concept of the durability of social life inevitably assuming a definite form. Individual and collective morality would assume that offenders should be punished to maintain the stability of the community and maintain their safety. Our collective conscience ensures that the majority accept the rule of law and accept that deviance needs to be punished. Psychologically, restorative justice is assumed to invoke aesthetic sentiment of forgiveness for miscreants and release for victims. What it fails to do is provide society with assurances that their safety and integrity will be maintained in an atmosphere where the offenders’ rights appear to be upheld in variance with those of the victim, or the fundamental rights the victim is entitled to expect.
A personal view could be recorded which considers that restorative justice exhibits illusionary tendencies to pacify the reformers at the expense of society’s status quo. Clearly, not a supporter of restorative justice this writer intuitively distorts the semantics and cognitively refers to this concept as retributive justice: more aptly named, and far more appropriate for the majority of offenders who, regardless of intervention programmes to rehabilitate them will continue to offend despite society’s best efforts.
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