Tue, 02 Sep 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 third of this four–part series, Richard Gibbs writes that the criminal justice system is predicated on finding the fairest way of dealing with juveniles.
There can be little doubt that, for whatever reason, society tends to view different types of offender in different ways; there can be little doubt that - rightly or wrongly - men are viewed in a different light to women, the young in a different light to the adult. Certain crimes are often associated with certain types of people; again, sometimes rightly but on other occasions, wrongly. However the fundamental question raised by Nav Virk's first article is as to the effectiveness of the current juvenile justice system; her analysis focuses heavily on a critique of the incarceration of juveniles and the impact which this has upon them.
As a criminal practitioner, I have defended and prosecuted youths in a range of criminal courts and from the outset, let me say that I agree with much of the theoretical underpinning of what Nav Virk has persuasively argued in the first two parts to this series. There can be little doubt that any decent judicial process must bear heavily in mind the unique needs of juveniles appearing before the courts and that must be in terms both of the process and the outcome. That contention appears to be justifiably uncontentious and she and I are in full agreement on it.
However, as is often the case, the focus on the needs of the individual before the courts and then in the criminal justice system can sometimes be to the perceived or actual exclusion of other considerations. The fundamental contention of the last two articles in this series is that first, the analysis advanced in the first half of the series presupposes that the outcome of offences committed by juveniles is somehow less than that committed by adults. Anyone who has read the victim personal statements of the victims of such crimes will know that this is not the case as will those who have seen the uniquely framed way in which certain juvenile crimes are committed; often by collaborative groups, frequently with a misguided view that age of itself provides a degree of protection and defence to prosecution for such offences.
Secondly, the first half of this series argues that prison as an outcome is an unduly punitive response to juvenile offending and that it does more harm than good. Unashamedly, the last two parts of this series will argue that this conclusion is wrong; that the criminal justice system is predicated on finding the fairest way of dealing with juveniles, that many of the sentences passed on juveniles are the most constructive types available; that many more are radically less severe than many would expect and that sometimes, custody is the right response.
Finally, these last two parts of the series will argue that Nav Virk's analysis takes an overly simplistic view of the cognisance of juveniles; that those classed as juveniles today are by and large far more aware of the world around them and their part in it than ever before. Indeed once this fact is accepted - as it surely must be - then the argument advanced by Nav Virk for the raising of the age of criminal responsibility is fatally undermined by the notion that it is better to focus on the competence and ability of the individual juvenile; a test well established by the Children and Young Persons Act (CYPA 1933.)
Types of Crime
There is a clear an present danger that in this debate, the seriousness or otherwise of an offence is defined in reverse; ie it is defined more by the type of offender than the type of offence - as Nav Virk put it in her first article; "... 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."
Dealing with her first contention, is it seriously suggested that fraud, theft, criminal damage, public order act offences, drugs offences, possession of firearms, bladed articles, harassment, possession and creation of indecent images - to name but a few - are offences which 'pose no serious risk to society'? For these are all 'non-violent' offences and are all offences which juveniles have been convicted of in recent years. Plainly, these offences are serious risks to society and it cannot persuasively be argued that only offences of violence deserve to be categorised as a societal threat; therefore the contention that follows - that custody for juveniles who commit these is somehow specious, simply cannot stand logically. Staying with the issue of offences committed by juveniles, it is clear that juveniles today are more connected to the world in which they live than ever before. Social media, 4G technology, access to globalized consumerism and a shrinking global community, amorphous social groups and cheap travel - all are often condemned as negatives but there are clearly massive benefits to youths as well as wider society from all of these. A juvenile today can access so much more information, so much more easily, than at any time in global history and I take the standpoint that for the most part, this serves to aid the development, interaction and functioning of juveniles.
In September 2014 16 year olds will be asked to vote in the referendum on Scottish independence; whatever the qualms about expanding the franchise to 16-year-olds, it could – and was - never seriously suggested that juveniles of that age (or I would suggest, younger) were unable, intellectually, to work out what their views were. It seems to me, that Nav Virk's definition of the understanding a juvenile is capable of somewhat ignores their obvious development caused by the factors I've outlined above. In short, juveniles today are more aware of themselves and the world around them than ever before, so why should they be considered to be only as able to take responsibility for their actions as their less informed forebears? Ironically, whilst arguing that punitive sanctions against juveniles are not necessarily the detrimental factor that Nav Virk argues they are, I am perhaps taking a more positive and optimistic view of the capabilities of our young people. That, of course, is a double edged sword - for them.
Why do we Punish Juveniles with Imprisonment?
In short, the simplistic answer to that question is; because sometimes its necessary. I would submit that anyone spending any time observing the sentences passed by either the Crown Court or the magistrates' court - against adults or juveniles - would be struck by the fact that most of the sentences passed are non-custodial. Genuinely, judges and Magistrates' do see custody - the ultimate punishment in English law - the deprivation of liberty, as the ultimate and the last resort. It is not something that courts do lightly or even that frequently when the overall picture is considered. But it cannot be denied that there are occasions in which incarceration, of all offenders - not just adults or juveniles - is required. The question must surely be, not 'should we ever send juveniles to custody' but rather 'when should we do so and is that effective?'
In recent years, it has become somewhat intellectually voguish to draw comparisons from Scandinavia and to set them as some form of paragon of social virtue. With respect to Scandinavia and their treatment of juvenile crime, that may very well be the case but we should be wary of what I will characterise as the 'IKEA syndrome'; many of us have been able to adopt Scandinavian furniture and to put in into our homes with little difficulty. We should not think that the transposing of criminal justice systems and methods from Scandinavia is as readily accomplished as the adoption of an IKEA coffee table or book shelf; there are fundamental differences between our society and that in Scandinavia - differences that should make us wary of believing that we can simply look to the Scandinavian's and adopt the system they have with less difficulty than assembling a piece of flat packed furniture.
Without wishing to appear insular, is there perhaps more merit in tailoring an approach to the way we deal with juvenile offenders based less on models imported from completely different societies and legal systems but rather ones which are based upon an individual, subjective assessment of each juvenile? There is precedent for this; the Children and Young Persons Act 1933 (CYPA) which still governs the admissibility of evidence given by children and vulnerable adults sets down a test; in essence, if the witness is able to understand a reasonably complex question and give a reasonably complex answer - something that can be ascertained easily at the stage of questioning in the presence of a responsible adult with suitably trained officers - then their evidence is deemed admissible.
The courts are familiar with the test and it is one applied frequently throughout the court system. Already, in juvenile courts a variety of logistical and evidential adaptations are in place in order to facilitate the achieving of best evidence (ABE) by juveniles of which CYPA safeguards are a part. Are there problems in this? Yes, of course but the fact of the existence and frequent deployment of the test in my submission demonstrates that the criminal justice system in England and Wales is not only capable of recognising that juveniles require a different type of approach to their adult counterparts but that they evidence this through the use of statutory tests laid down by Parliament.
So Where is this Political Bias?
As an aside, one of Nav Virk's arguments is based on the assessment that there is a political motivation to the manner in which juveniles are dealt with by the justice system. Of course, she is right in her proposition but she is wrong in her conclusion; where her argument falls down is that in the key piece of evidence which underlines political involvement in this - statute law - it is clear that parliament has actually set down a framework which aides rather than hampers juveniles. The follow on question must surely be; if the political landscape was as hostile - generically - to juveniles as my co-author suggests, why is it that the main pieces of legislation governing this are favourable to juveniles and the main one has not been amended in over 80 years? Surely, on this contention, the evidence does not support her argument.
A new approach?
I said at the beginning of this series that I agreed with much of what my co author argued in the first two pieces of the series but from the aforementioned, the reader could be forgiven for thinking that the areas of disagreement are broader than those of agreement. For the avoidance of doubt, let me make it clear; the juvenile justice system - just like its adult counterpart - is not perfect by any stretch of the imagination and requires adaptation and reform. Where we do agree is that it is vital that sentences are proportionate, appropriate and tailored. I do not agree that the current system is overly harsh but I do agree that it is in essence arbitrary and in the final part to this series, I shall argue why I feel that this is the case.
Richard Gibbs, a criminal barrister and author, is a member of No5 Chambers. Navpreet Virk is a trainee solicitor practicing in family law with a specialist interest in juvenile justice.