Is a youth justice system that claims to be about rehabilitation but has a 70 per cent reoffending rate actually doing its job? Just for Kids Law, and many others working in the field, believe there is urgent need for a radical re-think of how we deal with children who offend. If it is to be a meaningful discussion then it must address two fundamental questions. Are children fully responsible for the consequences of their action? How much of the criminal justice system that we put them through does a child actually understand?

While even very young children may know the difference between right and wrong (my three-year-old child knew he was wrong when he bit another child), their capacity to judge consequences is limited.

We know that morality is an evolving thing and the law recognises this. For example a child of 13 can physically say ‘yes’ to having sex but he or she cannot consent legally: the law acknowledges that a child under the age of 13 might say ‘yes’ without fully understanding the consequences. But the law does not recognise the same lack of full understanding if that 13-year-old gets involved in other potentially harmful and criminal behaviour. Every child over the age of 10 is treated as being as responsible as an adult for their criminal actions.

In 2005, the United States Supreme Court abolished the death penalty for those who murdered when they were under the age of 18. Writing the 5-4 majority decision, Justice Anthony Kennedy cited a body of sociological and scientific research that found that juveniles had a lack of maturity and sense of responsibility compared to adults. He cited studies that showed that adolescents are over-represented statistically in virtually every category of reckless behavior; they are more vulnerable to negative influences and outside pressures, including peer pressure; they have less control, or experience with exercising control, over their environments. They also lack the freedom that adults have, in escaping environments that encourage criminality.

Still immature

Adolescent behaviour has a universal biological cause which scientists have only recently begun to understand. Along with everything else in the body, the brain changes significantly during adolescence. The small area of the frontal lobe located behind the forehead, the ‘prefrontal cortex’, controls the brain’s most advanced functions. It allows us to prioritise thoughts, imagine, think in the abstract, anticipate consequences, plan, and control impulses. In the past five years, scientists have discovered that in an adolescent this part of the brain is far less developed than in adults. The Los Angeles-based university UCLA brain research team, led by Elizabeth Sowell, found that this frontal lobe undergoes more change during adolescence than at any other stage of life. It is the last part of the brain to develop, which means that even as they become fully capable in other areas, adolescents cannot reason as well as adults:  Indeed, according to the research, age 21 or 22 would be closer to the ‘biological’ age of maturity.

In addition to the neurological ‘shortfall’, adolescents also undergo dramatic hormonal and emotional changes. One of the hormones which has the most dramatic effect on the body is testosterone, which is closely associated with aggression. This hormone increases tenfold in adolescent boys.

Ignoring the science

The evidence thus supports the assertion that adolescents are less morally culpable for their actions than competent adults. Yet the criminal justice system ignores the science to react to the emotionally charged demands of the media.

In a recent report about child defendants, the Royal College of Psychiatrists stated:

'It seems inexplicable that the age of criminal responsibility should be set at 10 years when the same defendant would have to wait a further 7-8 years before being deemed mature enough to enter the armed services or to vote ... [I]n relation to children who offend, it is clear that a wider discussion of normal, physical, intellectual, emotional and social development in children and adolescence is at a very early stage in the UK.’

In addition to the limitations adolescents experience in understanding the consequences of their actions, they are also expected to participate in a court system that is both complex and complicated. Since they are unable to engage meaningfully we do not find the ‘truth’ and justice is not done.

In 2004 the European Court of Human Rights reversed the conviction of an 11-year-old boy tried in Liverpool Crown Court for robbery. In its judgment the European Court stated

‘When the decision is taken to deal with a child, such as the applicant, who risks not being able to participate effectively because of his young age and limited intellectual capacity, by way of criminal proceedings rather than some other form of disposal directed primarily at determining the child’s best interests and those of the community, it is essential that he be tried in a specialist tribunal which is able to give full consideration to and make proper allowance for the handicaps under which he labours, and adapt its procedure accordingly.’

The European Court heard from the boy’s social worker, who was sitting next to him throughout, that he had been ‘totally perplexed at the formality of the Crown Court’ and that ‘he did not fully understand the situation.

‘Whilst the jury was being sworn in [the applicant] asked me who they all were. I explained in simple language a boy of 11 years should understand that they were members of the public who would have the duty of finding not guilty or guilty. He then said if they were the public why could not his mother sit there to help him. Even when the sentence was passed [the applicant] again did not understand what had been passed or where he was being placed. [The applicant] was under the impression that he would be returning to his Foster/Remand placement with his foster father, who was present at Crown Court. Despite my efforts to explain the situation to him [the applicant] did not comprehend the situation he was in. When he was taken to the holding cells awaiting escorts I took time to try again to explain the consequences of his trial and sentence but he was still confused.’

The European court made it clear then that if the UK wanted to include children in a criminal justice system those children must be able to ‘effectively participate’ in the proceedings that have consequences for a lifetime, including conducting the hearing in such a way as to reduce as far as possible his feelings of intimidation and inhibition.

Fast forward to 2010 and it seems that nothing much has changed. In May a jury at the Old Bailey, London’s Central Criminal Court for England and Wales, found itself enquiring into the exact details of what physically had occurred when three children of primary school age were playing together outside during half term. The two defendants, both boys, were aged 10 years. There was no suggestion that either of them habitually misbehaved. One had a glowing report from his school. The Court of Appeal in its judgment stated it was unable to leave the case

‘...without recording dismay that it became necessary for two 10-year-olds and an eight-year-old, all of impeccable upbringing, to be the key participants in a trial before the Crown Court. We are particularly concerned about the effect a publicly staged trial in this arena was likely to have on the ability of the little girl, whatever had happened, to move on with her life with the minimum adverse impact.’

The system is not just incomprehensible to young children. A former client of mine, who is now studying criminology at university, told me:

‘When I was taken to Court I didn’t understand anything that was going on. I was 16 at the time; I had only seen court in the media. I felt so much pressure just being there, from the judge and the prosecution, my heart was pounding, my instinct was to get up and run, I actually thought about getting up and running. I didn’t understand anything that was being said. I felt like I was on trial for murder and this was just the youth court … If I had been at court aged 10, I think I would have lost it, I would have been physically and mentally fucked up, I would have got post-traumatic stress disorder. At the age of 10 I am still going through what is right and wrong, I am still at primary school – how terrifying is that? I would have understood things much better if things had been presented in a way a kid would understand. It seemed like there were so many unnecessary people in the court, I didn’t know who they were. If you think about sitting with a head teacher and being told off you are already scared, let alone being in front of a judge!’

To call it a ‘fair trial’ when 10-year-olds are asked to out-articulate top QCs who have spent years  honing their advocacy skills, is rather like declaring a fair match between England and an under-11 football team. The role of the courts is to seek the truth. The ‘truth’, as we all know, is elusive and subject to many interpretations. But in the 21st century we surely understand that there are ways of reaching decisions or opinions without an adversarial David and Goliath battle of words. This was the purpose, for example, of the South African Truth and Reconciliation hearings. It is through listening to the views of those who speak freely ‘without intimidation and inhibition’ - to quote the European court of Human Rights - that we can best reach what we believe is the truth.

If we want to learn more about the inner thoughts and experiences of our children we need new ways of listening, not inquisitions.