It has been three years since the UK was admonished for failing to comply with its obligations under the United Nations Convention on the Rights of the Child. The UN Committee responsible for the convention recommended that the UK government take ‘urgent measures’ to address a ‘general climate of intolerance and negative public attitudes towards children, especially adolescents’. Yet it is fair to say that, since then, since then, the UK has failed to act on the Committee’s concerns.
In fact, we have seen an escalation in negative public attitudes towards children and adolescents. There are four areas within the criminal justice system alone where the UK, in my opinion, is clearly in breach of the Convention. These relate to the age of criminal responsibility, the failure to protect anonymity, having children tried in adult courts and resorting to custody other than as a last resort.
The August riots provided a recent example of persisting negative attitudes to children. We know now that only one-fifth of those charged with rioting and looting were under the age of 18 yet press reports at the time carried headlines such as this one from the Daily Mail, ‘Years of liberal dogma have spawned a generation of amoral, uneducated, welfare dependent, brutalised youngsters’. Such coverage only ostracises the generation that needs to be engaged.
Britain’s breaches of its responsibilities to act in the best interest of the child as required by the UN Convention go further than a negative public attitude. We lock up more young people than any other European country; four times more under-18s than France, ten times more than Spain and a hundred times more than Finland, according to NACRO, the crime reduction charity.
An overriding principle of the UNCRC is that, in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the primary consideration must be the best interests of the child. Below are four ways in which the UK’s youth justice system may breach the UNCRC.
Age of Criminal Responsibility
The UNCRC calls for nations to establish a minimum age ‘below which children shall be presumed not to have the capacity to infringe the penal law’. In 2008, the Committee expressed its concern at the young age of criminal responsibility in the UK. At the time it was aged eight in Scotland and ten in England, Wales and Northern Ireland – and recommended that the UK should raise it. The age of criminal responsibility varies around the world. In Japan for example, offenders below age 20 are tried in a family court, rather than in the criminal court system. In all Scandinavian countries, the age of criminal responsibility is 15, as it is in the State of New York. The age of criminal responsibility in Romania, Bulgaria and China is 14.
Perhaps in response to the Committee’s observations Scotland raised the age of criminal responsibility to 12. For Northern Ireland a recently published government “Review of the Youth Justice System” suggests the age of criminal responsibility there should be raised to 12, in line with Scotland and the Republic of Ireland, and with consideration given after a period of time to raising it further to 14.
But England and Wales stubbornly holds on to the age of criminal responsibility remaining at 10 years old for every child. In a statement in 2010 the Ministry of Justice said: ‘We do not intend to raise the age of criminal responsibility. It is not in the interests of justice, of victims or the young people themselves to prevent serious offending being challenged.’
It was the Labour government in 1998 which abolished doli incapax, a legal protection which ensured that children between the ages of 10-14 accused of a criminal offence were assessed on their individual level of capacity and understanding before facing trial. In civil courts in England and Wales there remains a requirement that each child be assessed for capacity in this way, but in criminal courts a 10 year old is now considered as responsible as an adult for their behaviour.
Loss of anonymity
In August 2011, Theresa May, the British Home Secretary, called for the anonymity of juveniles found guilty to be lifted, in direct contravention of the UNCRC. Her statement said: ‘What I’ve asked is that CPS (Crown Prosecution Service) guidance should go to prosecutors to say that where possible, they should be asking for the anonymity of juveniles who are found guilty of criminal activity to be lifted.”
Yet the Convention is clear that every child accused of breaking the penal law shall have his or her privacy fully respected at all stages of the proceedings. The phrase ‘all stages of the proceedings’ includes the initial contact with law enforcement (for example, a request for information and identification) up until the final decision by a competent authority, or release from supervision, custody or deprivation of liberty. The Convention is clear that the protection is there ‘to avoid harm caused by undue publicity or by the process of labelling’ and that no information should be published that could lead to the identification of a child offender and possibly stigmatise the child and have an adverse impact on his or her safety or access to education, work or housing.
The damage caused by the Home Secretary’s recommendation was highlighted in the case of a 16-year-old boy, who during the unrest in the UK, posted a message on a Facebook page which said: ‘Letz go riot’. The boy, who did not leave his house, nor manage to engage anyone in any disturbances, was given a community penalty for his crime. Even though this was considered a relatively minor offence, his identity was revealed and the press subsequently pursued him to the extent that he had to hide indoors his home with the curtains drawn.
This appears to be a breach by the UK of its duties under the UNCRC.
Children tried in adult courts
The Committee’s 2008 report also expressed concern that the UK continued to try children in adult courts. The issue came into the spotlight again last year with the trial of two ten-year-old boys for the alleged rape of an eight-year-old girl. The trial took place at England’s most famous criminal court, the Old Bailey, where notorious criminals such as Ian Huntley, Levi Bellfield and the July 7th bombers have been tried.
The European Court of Human Rights had already warned the UK in 2004 against the practice of trying children in adult crown courts when it overturned the conviction of an 11-year old who had been tried in the Crown Court. In its judgment, the European Court stated that if the UK chose to try children as criminals, rather than set up proceedings directed primarily at determining the best interests of the child and of the community, it was essential that it was done in a specialist tribunal able to give full consideration to and make proper allowance for the child’s particular difficulties.
However, despite criticisms from both the trial judge in the 2010 Old Bailey case and the Judges in the Court of Appeal, children continue to be tried in adult courts, an experience for children where it is known they can suffer post-traumatic stress.
The convention specifies that custody should be used only as a last resort, yet the incarceration figures for the UK are appalling. In Scandinavia, for example, there are just 15 children in custody; in England and Wales there are thousands of children in prisons. Custody is both expensive and ineffective, particularly for children. It costs up to £250,000 a year and there is a high, nearly 72 per cent, rate of reoffending. In fact, the evidence suggests that incarceration increases the risk of recidivism. Other measures, such as restorative justice where properly implemented, are cheaper, reduce recidivism and are felt by the victims to be more satisfactory.
It is also far too common in England and Wales for children to be kept locked up before trial or sentence. In 2009, more than 40 per cent of those children remanded in custody were subsequently acquitted or given non-custodial sentences. England and Wales regularly breaches the Convention by keeping children in custody overnight in police stations. Yet the law is clear. If bail is not appropriate, children should be moved as soon as possible to local authority accommodation. A survey by the Howard League of more than half of all UK police stations, undertaken in 2008-9, showed that more than 53,000 children under the age of 17 were held in police cells overnight. This included 13,000 children between the ages of 9-13, some of whom some were below the age of criminal responsibility.
Is the UK acting in the best interests of its children, as it has a duty to do? The evidence suggests not. It remains too reactive to the media with the result that negative perceptions of children are given too much prominence. And yet, as James Baldwin warned: ‘These are all our children and we will either profit or pay for whatever they become.’
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