Change, Evidence, Challenges: Youth Justice Developments in Scotland
Scotland has had a distinctive approach to youth justice for more than 30 years in the shape of its Children’s Hearings System, which attempts to integrate measures for protecting children and dealing with their criminal behaviour within a single system. Research evidence on youth crime highlights that many children and young people who become involved in crime are themselves victims of abuse and neglect and in need of protection. This raises serious challenges across jurisdictions about the interplay and overlapping responsibilities between systems of child welfare, protection and youth justice.
Many positives have already come from the Scottish Executive Review of Youth Crime of 2000. These include substantial investment in specialist multidisciplinary staffing and dedicated strategic resources to build the capacity for effective provision within a developing framework of national objectives and service standards. Indeed more has been done in a few years than in the previous decade (Scottish Executive 2000a, 2002b). However, with change come opportunities, risks and challenges.
Youth Justice has become highly politicised in all UK jurisdictions. After 30 years of relative stability in which a significant degree of distinctiveness in the Scottish approach was maintained, some recent proposals for change suggest signs of some convergence in youth justice policy across the UK (Bottoms and Dignan 2004).
Government commitment to reviewing Scotland’s system of Children’s Hearings in 2004, alongside ongoing changes in youth justice provision, suggests that Scotland may be at a crossroads likely to direct the shape and effectiveness of youth justice for many years to come. The Scottish reviews afford an opportunity to scrutinise rigorously the evidence, principles and values that ought to shape the direction and effectiveness of any youth justice system if the result is to be a more effective and ethical approach to dealing with children and young people who offend. It raises issues relevant to all jurisdictions in attempting to find a balance between welfare and justice for children. These issues, discussed in this chapter set an agenda for all jurisdictions committed to effectiveness in youth justice provision.
Youth justice policy in Scotland
It’s a Criminal Waste: Stop Youth Crime Now, Scotland’s youth crime review report (Scottish Executive 2000) provided a thorough re-examination of youth justice provision. It concluded that while the principles underpinning the Children’s Hearings System were fundamentally sound, practices and the resources to support them had fallen behind the times and that change was overdue. To some extent the detailed findings of Audit Scotland’s report (2002) confirmed this conclusion, highlighting inconsistencies in decision-making and resources across the country and expressing concern that two-thirds of financial resources were being used up in legal and administrative processes rather than on direct provision for young people. The Scottish Executive review makes the case that any jurisdiction seriously attempting to bring about positive change in youth crime would require a range of responses, which it categorised under the following headings.
•Prevention – to increase effective universal provision for all children and their families to reduce or compensate for conditions that expose children to harmful behaviours of all kinds; with particular attention to drugs- and alcohol-related risks for those below 16 and to school exclusion.
•Early Intervention – quick targeted assistance for individual children whose behaviour or family circumstances indicate vulnerability towards offending and other problems.
•Diversion – from formal processes (both Hearings and criminal courts) to allow immediate action to address problems and re-equip children and young people for more positive citizenship.
•Intervention – only when necessary and at the right time and right level.
•Participation – of young people and families; more joint action between voluntary and statutory agencies, communities and the commercial and business sectors to create safer communities, in which individual needs, responsibilities and rights are respected and in which restorative justice features; better information on factors that contribute to youth crime and its reduction.
Policy and practice for persistent offending by young people
The Scottish review highlighted that young people persistent in their offending were being failed by the system. Since 1991 national guidance for criminal justice social work (adult probation services) had recommended the need for special planning for 15–17-year-olds as part of integrated social work planning. The reason for this was that ‘experience has shown a tendency for offenders in this category to progress fairly rapidly to custody once they enter the criminal justice system’ (Social Work Services Group (SWSG) 1991: General Issues, para. 134).
Little progress was made in this respect throughout the decade. One small study of Social Enquiry Reports (SERs) on young people aged 16 and 17 found that summary criminal courts were seldom alerted either to criminal justice policy supporting diversion from formal prosecution, or to the special legal provision available for this age group. SERs seldom recommended the use of provisions under the legislation permitting summary courts to take the advice of a Children’s Hearing or indeed to transfer ‘risky’ young people back to the Hearings System under Section 44 of the 1995 Act (Johnstone 1995).
In a two-year follow-up study of jointly reported young people – young people reported simultaneously to the adult criminal justice system and to the Children’s Hearings System – 46 per cent of these young people had experience of custody by age 18. All had been subject to supervision in the Hearings previously and most were discharged at the recommendation of child care social workers only to reappear in criminal proceedings within a matter of months (Waterhouse et al. 2000; Whyte 2004). Hallett et al. (1998) identified a degree of ambivalence among Children’s Panel members and professionals about dealing within the Hearings System with young people who persistently offend. Young people heavily caught up in crime seemed, in effect, to be transferred out or up to the adult criminal system. Scotland is now the only UK country and one of few in western Europe where young people aged 16 and 17 are routinely dealt with in adult criminal proceedings. Changes are clearly required.
The youth crime review report (Scottish Executive 2000) acknowledged the paradox of this, given research evidence that those most likely to make the transition to the adult court under the age of 18 are also those who are most likely to:
•be immature and impulsive risk-takers
•reoffend on deferred sentence if not given support, to default on fines, to fail to keep appointments for supervised attendance orders and to breach their probation, and to find themselves in custody
•lead chaotic lives that lack constructive home supports
•be at greatest risk of substance abuse and violence
•have been victims of offences themselves
•have had limited education.
(Scottish Executive 2000, Annex C)
The Children’s Hearings System was designed specifically to deal with such young people persistent in offending. Despite this, Scotland’s First Minister expressed the view in 2003 that the system was designed in the 1970s and is unable to cope with persistent young offenders aged 15–17. Failing to deal effectively with this age group is not the same as being unable to deal with them effectively and it could be argued that practice and service failings have created a self-fulfilling situation. Given the complex difficulties of such young people there is little evidence to suggest that a criminal court, even a specialist youth court, would provide a more effective way of dealing with them without the necessary services available.
Scotland’s youth crime review demonstrated the need for change, and a central factor in this was the insufficient resources allocated to the Hearings System. Equally, however, some routine practices raised serious questions about the expertise and training of staff for maintaining and challenging young people in the community. The review also raised questions about the meaning, in practice, of the statutory duty placing responsibility on the ‘whole authority’ for children in need under the 1995 Act in respect to children and young people who offend. The role of education, housing, leisure and recreation, cultural and other community services in assisting the most difficult young people in desistance did not seem to feature strongly in the work with young people who offend. The review suggested that the ‘whole person’ approach is, however, ‘no less valid for the 16 or 17 year old offender than it is for the 15 year old’ (para. 13) and suggested that there needed to be ‘a unified approach at a practical level, combining care and protection with the public’s concerns over the need to address offending behaviour’ (para. 14).
Changes and challenges in youth justice policy in Scotland
On the basis of the review’s recommendations, an ambitious ‘Action Programme to Reduce Youth Crime’ was announced in 2002 encompassing the following wide-ranging set of aims:
•increasing public confidence in Scotland’s youth justice system
•giving victims an appropriate place in the youth justice process
•encouraging all children and young people to thrive
•easing the transition between the youth justice and adult criminal justice systems
•effective early intervention.
The Action Programme made a number of commitments, which we will now examine in fuller detail.
The first target outlined in the Action Programme was that of ‘increasing public confidence in Scotland’s youth justice system’. There were a variety of aspects to this aim, which was to be realised through:
•the development of a framework of national standards and objectives
•the development of a common information and assessment framework within better integrated children’s services
•strengthening the role and work of youth justice teams, and
•improving outcome measurements and evaluation proposals for programme accreditation.
National Standards for Youth Justice Services were introduced in 2002, setting a target of 2006 for full implementation. These stress the importance of delivering youth justice provision within the context of integrated children’s services. Each Local Authority has appointed dedicated and specialist staffing, in some case multidisciplinary, and a designated youth justice co-ordinator. Strategic planning groups are active in establishing baseline data through youth crime audits and service mapping exercises. For ‘persistence’ – five episodes of offending within a six-month period – a structured and standardised assessment (ASSET, Roberts et al. 2001; or Youth Level of Service/Case Management Inventory (YLS/CMI), Hoge and Andrews 2002) is required for all young people meeting the criterion.
Other identified priorities in the action programme included violent offenders, female offenders, drug misuse and offending, and the involvement of and support for parents and families with a view to reducing the number of placements in secure accommodation. A National Community Justice Accreditation Panel was established to promote and accredit structured programmes for adult criminal and youth justice provision. These changes, if implemented effectively, will reflect a step-change in youth practice in Scotland.
The second target outlined in the Action Programme concerned the need to ‘give victims an appropriate place in the youth justice process’. It sought to achieve this by improving information and services to victims. The 2000 Scottish Crime Survey (Scottish Executive 2000c) showed that young people who admitted to committing offences were themselves more likely to be a victim of crime (65%) than non-offenders (41%). Recent findings from the Edinburgh Study of Youth Transitions confirmed what practitioners see daily – the strong association between being the victim of crime by age 12 and later offending (Smith et al. 2001). A major challenge will be to ensure that services in this area are available to victims including young people who are both victims and offenders.
Substantial investment has been provided to support the extension of restorative justice approaches across Scotland. Restorative justice measures have captured worldwide attention but have been a major omission from Scottish practice. These involve helping children and young people to understand the consequences of their criminal behaviour, to appreciate the harm done and, where possible, to have the positive experience that can be gained from making good the wrong done. It may be thought that this is inconsistent with a welfare-based approach, but knowledge of social and moral development indicates this is in the best interests of the child who offends, as well as the victim. From April 2005, all police cautions to juveniles will take the form of a restorative police caution. This is a meeting facilitated by a trained police officer based around a structured dialogue about the offence and its implications. This change in practice assumes that restorative cautioning is likely be a more effective approach to policing than traditional cautioning, though the evidence is, as yet, inconclusive (Wilcox, Young and Hoyle 2004). Nonetheless there is promising evidence that a sensitive restorative approach can give families an opportunity to take and share responsibility with and for their young people, and to do something positive about offending. Care needs to be taken, however, to ensure that the value of restorative measures is not overstated and that they do not become an end in themselves. Any movement that captures the imagination of the political right and left in Australia, New Zealand, the USA and the UK has to be introduced with a critical mindset. It is important that restorative cautioning by police or other restorative approaches do not result in more young people being drawn unnecessarily into formal systems as a result of political pressure to be seen to be doing something early. In some jurisdictions relatively minor first offences are receiving restorative cautioning without giving families an opportunity to resolve the matter first, with assistance if necessary. This is not only poor restorative practice, it is likely to use scarce resources unnecessarily and runs the risk of net-widening intervening in the lives of young people who are unlikely to reoffend in any case.
Many of the more than 30 studies about the effects of restorative justice examined by Braithwaite (1999) showed reduced offending, and only one revealed an increase. However the evidence of reduced offending, specifically for young people, remains very modest. The Canberra Re-integrative Shaming Experiments (RISE) (Sherman et al. 2000) found no difference in offending rates compared to controls when using restorative measures specifically for juvenile property offences and offences against personal victims on the basis of one-year before/after changes. The Indianapolis Restorative Justice Conferencing Experiment (McGarrell et al. 2000) replicated a Canberra-type experiment with very minor first offenders under the age of 14. Rearrest rates at 12 months for those who had successfully completed a programme found that only 23.2 per cent had been rearrested at 12 months compared with only 29 per cent for the controls. The results were not statistically significant.
Commentators suggest that when community members are asked to help, plan and become involved in an intervention, they develop a sense of ownership (Graham 1998). Involving the community can also make it easier to obtain resources and volunteers to carry out long-term support. There is very little research on how best to assist neighbourhoods to take constructive responsibility for their difficult young people. Developments through Communities that Care in Scotland and community projects, such as Family Action in Rogerfield and Easterhouse (FARE) in Glasgow, may provide models for the future. A large investment in street wardens is under way in Scotland. In Denmark community safety programmes such as School, Social Agencies and Police (SSP) programmes provide trained street youth workers, not to move young people on, but to engage with them on the streets, to link with their families, to respond to the concerns of local residents and to report to SSP co-ordination groups to assist in the targeting of help and support.
A major challenge facing community safety initiatives in Scotland is to find effective non-criminalising mechanisms to promote neighbourhood safety.
The third target outlined in the Action Programme was concerned with ‘encouraging all children and young people to thrive’. This was to be achieved in the following ways:
•linking youth justice strategies more closely with other strategies supporting young people
•developing the role of youth work
•making stronger connections between youth justice and education
•reviewing access to mental health services, and
•enhancing the role of sport, the arts and cultural opportunities in building young people’s self-esteem.
These are ambitious and very positive objectives but significant developments in these areas have still to be delivered. It remains to be seen, for example, if the recommendation to have a designated member of school staff take daytime responsibility for the care, welfare and tracking of progress of ‘looked after’ children will apply equally to young people ‘looked after’ because of their offending in the same way as to others. Outcomes from the investment of the New Opportunities Fund Active Steps programme (£24 million) are not yet available to show if local authorities took the research findings seriously that sport and physical exercise are unlikely to have a positive impact on youth crime without associated social assistance (Coalter with Allison and Taylor 2000).
Turning now to the fourth target of the Action Programme, ‘easing the transition between the youth justice and the adult criminal justice systems’, we should note that a major commitment of the Action Programme is to create a more integrated welfare and justice system for 16 and 17 year olds. The government decided to establish a criminal youth court and to drop a previously accepted proposal for a bridging pilot to deal with more young people aged 16 and 17 in the Hearings System. This change in policy was signalled by the growth of populist punitive rhetoric demonising difficult and vulnerable young people. The same kind of political rhetoric has been associated by some commentators with a ‘new youth justice’ in England and Wales (Goldson 2000) where the commitment to be ‘tough on the causes of crime’ seems increasingly overshadowed by the imperative to be seen to be ‘tough on crime’.
As yet there are no coherent guiding principles or philosophy outlined to direct the youth court process in Scotland, as distinct from an adult court in ‘youth’s clothing’ or one that meets the terms of the Beijing rules to be ‘different from adult proceedings’ (United Nations 1985). The pilot youth court has the same range of powers of disposal as the adult sheriff summary court, including the power to refer young people to a Children’s Hearing. There are some positive modifications to the adult proceedings. These include requiring criminal prosecutors (Procurators Fiscal) to consult with the Children’s Reporter to discuss the possibility of diversion from prosecution.
Guidance stresses that no young person should be dealt with by the youth court who could otherwise be dealt with by a Children’s Hearing. Disappointingly, the fiscal has no power to refer a young person directly to a Children’s Hearing. This is a long-standing anomaly that the now abandoned bridging pilot was intended to resolve. The youth court has dedicated youth court sheriffs and provides continuity of judicial oversight in dealing with issues relating to community supervision; it is subject to regular judicial reviews and has the capacity to take into account additional outstanding charges in a single court hearing; it can also ‘fast track’ breach procedures. These are all welcome developments, as is the appointment of a youth court co-ordinator to improve multidisciplinary co-operation. In practice the success of this venture may depend on the commitment and skill of the youth court personnel. More significantly, substantial additional resources have been committed to ensure that new and extended supervisory programmes are available as a matter of routine. The main vehicle for community supervision through the youth court is a probation order, which attracts an adult criminal conviction under existing legislation. It is too early yet to comment on the impact of these developments until the evaluations of both fast-track hearings and the youth court are complete.
Scottish Executive policy developments show a determination to improve youth justice. The re-establishment of a youth court may provide a welcome complement to the existing Children’s Hearings System and may be a significant improvement on adult criminal courts. If new resources result in more young people being retained in the Hearings System until the age of 18, the role of the youth court should remain limited for this age group. It would be a much more positive step to see youth courts extended to more serious offenders appearing on indictment, and to older youth up to 21 (as in some European countries) rather than to see them extended downwards. Despite a clear policy statement that there is no intention to net-widen, a major challenge for any well-resourced youth court is to ensure it does not, unintentionally, draw young people more readily into its criminal jurisdiction rather than divert them.
Of all the proposed developments in the Action Programme, it is the fifth target, concerned with the promotion of ‘effective early intervention’, that presents the greatest opportunities, challenges and risks. It was intended from the outset of the Children’s Hearings System that entry would be premised on the possibility of early intervention. The legal test for entry is the need for ‘compulsory’ measures. It is difficult to justify the need for compulsion if no relevant provision has previously been offered or refused; or if young people have not failed to co-operate or comply; or if their situation does not present such high risk that compulsion alone can safeguard others or themselves. Anecdotal evidence suggests that few young people have, in the past, been subject to well-structured and multidisciplinary provision of any sort before being made subject to compulsory measures.
Generally speaking, the practice model on offer in Scotland for many years seems to have been one dominated by diversion without service – in effect, radical non-intervention (Schur 1973). While there continues to be a place for diverting many young people on the assumption that they will simply ‘grow out’ of crime with minimal intervention, others simply will not. Doing nothing may well be a missed opportunity to provide positive help at an early stage. This, of course, has to be weighed against the unintended consequences of early intervention.
Research on young people who offend has highlighted at least two distinctive groups, identified by Moffitt (1993) as ‘adolescent limited’ and ‘life course persistent’ offending. For some young people, personal difficulties combined with early involvement in offending may be a stepping stone on a pathway to more serious, violent and persistent offending (Loeber and Farrington 1998). Studies have suggested that the risk of becoming involved in persistent offending is two to three times higher for a child who starts offending aged under 12 than for a young person whose onset of delinquency is later (McGarrell 2001). However, because children tend not to commit particularly serious or violent offences, and because they usually have not acquired an extended pattern of criminal behaviour, they often receive limited appropriate attention for this behaviour (Snyder and Sickmund 1995). A major challenge is to provide effective, non-stigmatising and age-appropriate interventions. This presents major challenges to Reporters, who act as gatekeepers to formal systems, and to those who decide whether or not compulsion is likely to be required.
It is the arena of early intervention in particular that has highlighted tensions in current government policy. The evidence of high levels of disadvantage among young people who offend is well established. Labour-led administrations, at UK and Scottish levels, have expressed a commitment to tackling child poverty ‘within a generation’. A substantial investment has been made in child poverty measures in what essentially has to be a long-term strategy. In the shorter term, antisocial behaviour is a major concern for communities and needs to be taken seriously. However, in the context of increasingly punitive rhetoric, implementation of the Anti Social Behaviour (Scotland) Act 2004 runs the risk of creating parallel pathways for young people in trouble and of separating early prevention strategies for youth crime from strategies for better integrated social and educational provision for children and families and from any framework of children’s rights. This makes provision for antisocial behaviour orders, intensive supervision and monitoring (including electronic tagging) and community reparation orders for young people under 16 years old.
Early interventions relating to antisocial behaviour reflect, for the first time in Scotland, a shift in the political discourse away from the language of children in need and from welfare-orientated strategies towards a language of correctionalism, personal responsibility and punishment that has dominated debates in other jurisdictions. Experience in England suggests that practice responsibilities for early intervention for behavioural difficulties are increasingly being transferred to youth crime professionals outwith a child welfare and child protection framework through parallel legal provisions. To date in Scotland’s dual system, criminal pathways are seldom used for under 16s. These new early intervention measures under antisocial behaviour legislation, unless routed through the Reporter and the existing child care system, could create a new range of parallel pathways for children. The introduction of antisocial measures will test the capacity of local authorities to co-ordinate provision and operate in a multisystemic way across the ‘whole authority’ as required by child care legislation.
Greater political emphasis on the personal responsibility of children and parents has to be matched with service resources and equal leverage on service providers to guarantee the quality of assistance. Local co-ordination is required to ensure that mainstream services are directed by principles of effectiveness and subject to meaningful quality assurance measures. The establishment of strategic planning groups in each local authority and the appointment of youth justice co-ordinators in Scotland are valuable developments intended to assist in this. These issues, more than any, challenge Local Authorities to deliver well-co-ordinated provision to deal with antisocial behaviour effectively within an integrated framework for vulnerable children and families.
Learning from other jurisdictions
There is some promising evidence from England and Wales that early voluntary intervention approaches can be implemented positively. Data from the safety Partnerships in London until March 2003 had produced only 50 Anti-Social Behaviour Orders (ASBOs) and 40 per cent had been breached. However, over 700 voluntary agreements (Acceptable Behaviour Contracts – ABCs) had been put in place, with only 11 per cent broken (Home Office 2005). The facility for voluntary agreements has been available for 25 years under Scottish legislation. The challenge is to make them relevant and effective by ensuring that agreements that are binding on young people and families are equally binding on all parties, including service providers. A Failure of Justice (Nacro 2003) presents a cautionary tale from England and Wales. It reports that the custody rate for young people under 15 has risen substantially, in recent years – a 100 per cent rise overall since 1992; a 400 per cent rise for females and an 800 per cent rise for children aged 12–14 – leading to a general condemnation by the UN Committee on the Rights of the Child (Harvey 2002). Nacro makes a direct association between this increase and the punitive rhetoric dominating political discourse. It argues that ‘the apparent determination to be seen as tough on youth crime’ (p.28) has to some extent been counterproductive, with the result that ‘an increasingly punitive environment for all those who offend has been combined with a particularly reduced tolerance for children who break the law’ (p.11). The report warns that
In a period of rapid change…it is sometimes difficult to retain a clear overview…keeping abreast of new initiatives may leave little space for critical reflection…the dynamic of reform may divert attention from specific areas of concern’. (p.28)
In the Scottish context, to spend large amounts of money to see a reduction in minor offences while at the same time failing to halt the progression to custody or secure accommodation of those at risk of serious and persistent offending will, in the long run, provide communities with limited comfort, important though the reduction in minor offending may be. This is emphasised by the fact that early criminalisation and detention of young people is as good an indicator of progression of criminality and the associated harm to future victims as is available. One US review concluded that:
If there is one clear finding to be gleaned from the research on juvenile justice programming in recent decades, it is that removing youthful offenders from their homes is often not a winning strategy for reducing long-term delinquency. Most juvenile…facilities…suffer very high recidivism rates. Intensive community-based supervision programs typically produce recidivism rates as low or lower than out-of-home placement (at a fraction of the cost), while intensive family-focused or multi-dimensional intervention programs have produced the lowest recidivism rates of all. (Mendel 2000, p.16)
A fundamental challenge for Scottish policy has been refocusing on the issue of youth crime and its reduction. A major challenge for practitioners is to recognise the importance of understanding the nature of crime as a social phenomenon as well as understanding the developmental needs and social characteristics of those who commit it. To fail to address these issues with young people is to fail the young people and the community whose welfare interests in this regard should be mutually inclusive. Models of practice need to adopt an offence focus, when appropriate, without abandoning a focus on the wider and related social and welfare needs of children, young people and their families.
Issues of providing structured assistance within a framework of positive authority and control will always be a major challenge for service providers when working with troubled and troublesome young people. Responses to youth crime equally need to be set within a child protection framework, building on whatever strengths the young person has. Parents who are seen as part of the problem need also to become part of the solution, and partnership and direct work with families, rather than coercion, are likely to be crucial. The responsibility of parents, while important to stress, has to be supported and shared by state agencies.
The developments in youth justice in recent years in Scotland have been significant and have been backed by substantial resources. This kindles optimism that a quality service suited to the twenty-first century and consistent with the principles of the United Nations Convention on the Rights of the Child (CRC) (1989) can be established. They reflect the challenges faced by all jurisdictions.
The landscape is changing fast and it is too early to judge the outcomes of changes and proposed changes. More recent proposals, creating parallel legal processes, whether civil or criminal, have the capacity to increase criminalisation and undermine effectiveness unless they are part of a coherent system of youth justice and child protection. It may be important for the Scottish Parliament to look for inspiration beyond England and North America and towards northern European countries, given the original Scandinavian influence on setting up the Children’s Hearings System. In any case, while international comparisons can provide interesting data, they can equally be misleading if set outside their social and cultural context – in particular attitudes to young people, issues of community tolerance and the sense of community responsibility for young people’s welfare in general. If Scotland is to borrow ideas from other jurisdictions then it is important to examine the evidence for effectiveness critically to avoid recycling old ideas in new presentations and to avoid abandoning existing philosophies unnecessarily.
Like parents trying to work out how best to raise their children, states wrestle with the question of how best to respond to troubled and troublesome children and young people. While core features vary greatly, systems in western jurisdictions reflect a belief that children and young people should be treated differently from adult offenders and in many circumstances require protection of some sort. Many different models exist; few are completely satisfactory; compromises abound. Most are searching for new and better ways. Few are comfortable with the distinction or separation between justice and welfare, which results in variations in the balance of the shared ‘ingredients’ of prevention, early intervention, diversion, social treatments, and sanctions or punishments. The manner in which each country has responded cannot be understood in isolation from its historical development, which makes comparisons problematic.
In this regard Scottish policy-makers would do well to heed Donald Dewar’s vision for the Scottish Parliament, which was to find ‘Scottish solutions to Scottish problems’.
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