Tue, 26 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 second of this four part series, Nav Virk sets out the general philosophical underpinnings of the current policy approach.
The Criminal Justice and Public Order Act 1994, “introduced a Secure Training Order (STO) which enabled magistrates to lock up 12 to 14 year olds for a much wider range of offences” including criminal damage, theft and breach of an order. Furthermore, under the Criminal Court (Sentencing) Act in April 2000, STO’s were replaced by the Detention and Training Order which made it “easier for 12 to 14 year olds to be sentenced to custody.” Full discretion is given to courts with regard to determining whether a child is a persistent offender based on the young person’s pattern of behaviour.
Therefore, it is justified, when courts impose a sentence of imprisonment of a young offender with no previous records, on the grounds that they are seen as potentially “dangerous” and likely to re-offend in the near future. This approach, has led to an “increasing number of younger children, committing less serious offences” being caught up in the criminal justice system, as opposed to the proportion of juveniles who commit serious offences
The Criminal Age of Responsibility
In contrast to England and Wales, the criminal responsibility in Scandinavia is 15. Norwegians hold the view that children below the age of 15 cannot be held criminally liable for their actions, as they do not fully understand the difference between right and wrong. However this sharply contrasts with what the prosecutor in the Bulger case argued in court. The prosecutor argued that “some criminal acts are more obviously wrong, not merely to a 10 year old but to a child of perhaps half that age or even less.”
This statement means that children even half the age of the two killers in the Bulger case would have been morally culpable for what they did, because every child is aware that a certain action is wrong or right. However, Scandinavians disagree with such a statement and strongly believe that children cannot be constructed as criminally culpable, punishable or moral entities in the same way that they are in
So why then, given such endemic failings and ethical questionability, does the state and its criminal justice organs, continue to plough the coercive and incar-cerative furrow? Why, given the contemporary emphasis on “evidence-based” approaches, “what works” imperatives and ‘best-value priorities”, does state policy continue to court expensive failure? The answer lies in the historical emergence of the fermenting body of opinion that penal liberalism, has gone “too far”.
This has served, not only to politicise the whole spectrum of youth justice policy in England and Wales, but as a result has subjected it to the sensationalist glare of the media, who have energized public concern, by portraying every troublesome child as “out of control”, and “demonic”. Instigating a reoccurring state of moral panic, in which the youth of today have become affixed as society’s number one “folk-devil”.
Indeed, while it may serve some political agendas to “rouse public fears and to proffer what sound like hard hitting measures in response, the reality is that all too often these are misleading and fruitless courses of action.” It can be argued that political parties have the knack of magnifying problems, and detracting from options that offer a better prospect of constructing a system of youth justice that is both effective and humane.
It is important to note that most youth justice re-form is not simply driven by an increase in crime but it is also a reflection of the sudden and volatile shifts in political mood, in which short term political gain overrides any other concern.
The study of youth justice policy and practice, tells us more about social order and political decision making, than it does about the nature of juvenile offending and the most effective ways to respond to it.
Trial by Media
The current situation around the world sees many cases being subjected to trial by media. Crime is one of the most popular consumer products of our times. “Packaged for newspapers, TV and film drama, crime is everywhere as news item and entertainment, in spite of its often solemn wrapping it provides entertainment too.” An extremely good example of this was the Bulger case. The role of the media, no doubt “played a part in escalating public fear and changes in the political mood.” Indeed, the Bulger case was widespread and had sensational press coverage. The three consequences which can be related to the media attention given to the Bulger case, was that first, it initiated reconsideration of the social construction ten year old as “demons” rather than as ‘innocents”. Secondly, it helped to mobilize adult fear and moral panic about the moral degeneracy of youth in general. And lastly, it recast child offenders as “demons” and legitimized a series of tough law and order reforms.
Indeed it is difficult to avoid the conclusion that the policy of resorting to coercive methods is not only inhumane and expensive, but also counterproductive, for not only does it fail to treat the underlying causes of criminal behaviour, but it exasperates disillusionment and discontent. Statistical evidence states that 80 per cent of young offenders placed in custody re-offend within twelve months of their release.
Tough versus Rational?
What is apparent is that such policy does and almost certainly always will underpin youth justice policy in England and Wales, not because there is no viable alternative, for there are alternatives to coercion, such as restorative justice, welfare paternalism and participative community based interventions. But rather because coercion is derived from a political calculation, that the enduring imperative to be seen “tough” always outweighs penological rationality.
Incarceration then purely and simply represents the populist approach at a time where such politics of “institutionalized intolerance” negates the wealth of research evidence and practice experience, instead representing penological irrationality, derived from a policy of intolerance and punitiveness.
It is impossible to avoid the conclusion that behaviour which society finds problematic can only be changed by coercive methods and juveniles, who are perceived as creating difficulties for others, can only be reformed by being constrained, controlled or compelled to do so.
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.