Wed, 20 Aug 2014
In this series written for Criminal Law and Justice Weekly, Navpreet Virk and No5 member Richard Gibbs present the opposing arguments surrounding the manner in which the youth courts treat juveniles convicted of criminal offences and examine the countervailing arguments and policies. In the first of this four part series, Nav Virk sets out the general philosophical underpinnings of the current policy approach.
Trepidation’, ‘hysteria’ and ‘nostalgia’ are all powerful cultural forces and nowhere are they more evident than in the public denunciation of the behaviour of young people today. Whether it be the consequences of ‘permissiveness’, the influence of sensationalist media, a perceived insolence towards authority, or a result of the apparent crisis of ‘childhood’, children and adolescents are said to pose more of a threat to the social order than at any time in the past, occupying the ‘dubiously privileged position’, as society’s number one ‘folk devil’.
It comes as no great surprise then that the thirst for ‘harsher’ punishment to deal with this ‘new’ malaise appears to be intensifying. For the general premise is, that behaviour which society finds problematic can only be changed by coercive methods, and that those who are perceived as creating difficulties for others, will only change if they are constrained, controlled or compelled to do so.
Indeed the British Crime Survey reveals that ‘three out of four respondents [think] that the police and courts are too lenient in their treatment of juvenile offenders’, and that ‘40 per cent think that they are ‘much too lenient’.
A Deeper Motive?
At present, the Youth Justice System necessitates that when sentencing a juvenile offender, the Court must pay regard to two factors. The first is the principle aim of the youth justice system which is to prevent juveniles offending, by ‘identifying and seeking to address any factors that make offending more likely.' The second factor is the welfare of the offender. However, for all such progressive intent of welfare, there is contrary evidence to suggest that there is and always has been, embedded a ‘deeper punitive and authoritarian motive. So much so, that annual surveys of penal statistics repeatedly show that the number of juveniles being ‘imprisoned in England and Wales is the third highest in Europe, behind only the Russian Federation and Ukraine.’ Despite the evidence suggesting that the total number of juveniles in custody has decreased, it is evident that that the rate of incarceration in England and Wales is four times that in France, 12 times that in the Netherlands and ‘160 times that in Scandinavia.
England and Wales are almost alone among westernsocieties who indulge in routinely incarcerating a large number of juveniles aged between 10 to 14 for committing less serious crimes. Recent Home Office research found that only “four per cent of the 10 to 15 year olds are seen to be frequent or serious offenders,” a statistic which has not changed in the last five years. However, despite this a continued low level of violent crimes, the number of juveniles facing imprisonment has increased by ‘550 per cent in the last decade alone.’ Moreover, statistical evidence shows that the nature of offending by juveniles in England and Wales has not changed significantly, however despite this, changes in the legislation, and in particular the introduction of the ‘Detention and Training Order in 2000 has made it much easier for courts to sentence 10 to 14 year olds in custody.’ This has contributed to more than a ‘fivefold increase in the number of juveniles’ being locked up. What’s more is that most of the children in custody for committing serious offences are those who have been failed by State agencies from an early age.
The realization that those who are subject to such coercive penology, are ‘not randomly’ drawn from society, but rather are drawn from some of the most structurally disadvantaged and impoverished families, neighbourhoods and communities, most of whom are suffering from a range of problems, from low educational attainment, disrupted family backgrounds, behavioural and mental-health problems, to problems of alcohol and drug misuse. Indeed, statistical evidence shows that over half of the juveniles in custody have been in care or involved with social services at some point in their lives. Growing up, these children have been heavily influenced by the behaviour of family, friends and their communities. Furthermore, most juveniles who belonged to financially deprived backgrounds were the ones who were involved in robbery and burglaries because they ‘needed the money’. Currently, ‘3.9 million people are living in poverty’ in England and Wales, which is almost one third of all children. Indeed, poverty is known to have a negative impact on factors such as parenting and educational achievement which in most cases, contributes to the risk of youth offending. Bereavement is another known factor closely linked to juvenile offending. The death of a parent resulted in many juveniles, feeling general disaffection. Furthermore, there is an absence of consistent support at these early stages of their lives.
Education is crucial for a child. However, when children start getting into trouble, too often the reaction from schools and other agencies is to ‘suspend’ them. One month after release from a DTO, 58% of young offenders are not in education or training. For them, custody often marks just ‘one further stage in exclusion,’ having already experienced almost every other form of social exclusion on offer.
It is unsurprising, that custody, being at the height of coercive policy fails to prevent re-offending. 80% of juveniles placed in custody reoffend within 12 months of release. Where such policy succeeds in punishing the individual, it fails in providing the services to treat the cause of the criminal behaviour. Instead it exacerbates broken links with family, friends, education, work and leisure, perpetuating disillusionment and emotional and psychological defects. Juveniles are leaving custody stigmatised, damaged, and educationally malnourished, with little future prospects. Returning often to the lower echelons of the social system, they are faced with the endless enticements of consumerism and cultures of acquisitiveness, in which crime offers them their only real vehicle to participation.
International evidence has shown that punitive policies yield little of their much sought after effect in reducing recidivism. For example the ‘three strikes’ policy adopted in California has proven to be ineffective in reducing offending rates. Evidence shows that countries which adopted this policy, suffered higher rates of serious crimes compared to the countries which did not.
It is arguable that incarcerating juveniles only provides the public with immediate protection from the offender. Placing juveniles in custody makes no ‘restitution or reparation to the victim’ or the community, instead it diverts resources from community measures which are more successful at preventing re-offending’. Indeed, many juveniles sentenced to custody pose no serious risk to society as they have only committed non-violent offences, however placing them in custody means they will become a greater danger once released back into society. Furthermore, the continued use of custody for juvenile punishment means secure units are struggling to deal with increasing numbers. This pressure on resources restricts their ability to do effective rehabilitative work with the small number who really need to be detained. It is unsurprising that re-offending rates are high, research shows that ‘92% of older boys who have been detained more than twice, go on to re-offend.’ Various studies show that the younger the child is when they receive their first custodial sentence, the more likely the child is to re-offend and remain in the criminal justice system for longer.
A third more problematic defect, is the regularity with which coercive policy is used, due in part to the low age of criminal responsibility in this country.
The age of criminalization differs even more markedly across Europe where children aged up to 16 and 18 are deemed to lack full criminal responsibility and as a result, tend to be dealt with in civil tribunals. However, until 1998, the law in England and Wales also shared the view that children under the age of 14 to be doli incapax. Doli incapax means that a child of below the age of 14 does not know the difference between right and wrong and therefore is incapable of committing a crime. However, during the mid-1990s doli incapax came under attack, due to the public outcry about criminal responsibility in response to the James Bulger case. The ‘doctrine was placed under review following a High Court ruling which stated that doli incapax was ‘unreal, contrary to common sense and a serious disservice to the law.’ Moreover, in 1995, the House of Lords ruled in the case of C v. DPP  2 WLR 383, that the ‘doctrine continues to be a part of English law, but at the same time the House of Lords recommended that Parliament should review this presumption,’ which had been inconsistently applied and was capable of producing inconsistent results. The argument put forward for reform was based on three contentions: that it is ‘archaic, illogical and unfair in practice.’ The Government agreed that a child should not be treated the same as an adult, but that it believed the presumption of ‘doli incapax is wrong in principle and practice.’ According to government, justice is best served by allowing courts to take into account the age and maturity of the child at the point of sentence, and not by binding the Courts to presume that normal children are incapable of the most basic moral judgements. As a result, in 1998 the Home Secretary announced the abolishment of doli incapax under the Crime and Disorder Act 1998. The decision to abolish doli incapax was justified on the grounds that it will ‘help convict young offender who ruin the lives of many communities, on the basis that children aged between 10 and 13 were plainly capable of differentiating between right and wrong.’ However, this was seen to be in direct contradiction to UN recommendations, as they recommended that the ‘UK should give serious consideration to raising the age of criminal responsibility, in order to bring UK in line with much of Europe.’ But the Crime and Disorder Act 1998 evidently moved in the ‘opposite direction,’ as it gave no direction to courts or youth offending institutions that child welfare should be of primary consideration. Instead it represented this retreat from child protection and erosion of children rights as common sense and as enabling a new opportunity and even more paradoxically as a measure of welfare protection.
Navpreet Virk is a trainee solicitor practicing in family law with a specialist interest in juvenile justice. Richard Gibbs, a criminal barrister and author, is a member of No5 Chambers.