Tue, 09 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 final part of this series, Richard Gibbs writes that the criminal justice system is predicated on finding the fairest way of dealing with juveniles.
The youth court is given wide and flexible powers of sentence. Sentencing young offenders is a difficult duty, which involves balancing the seriousness of the offence and offending history, against the welfare needs of young offenders, many of whom – as Nav Virk rightly illustrates – have led highly disrupted lives. The availability of the various orders partly depend upon the age of the offender.
Additionally, some of the orders can be combined with each other to produce a sentencing “package” specifically designed to meet the needs of individual defendants (see the sentencing availability and combination tables in the Magistrates’ Archbold, 27-14 and 27-15).
The Current Legal Framework
Fundamentally, as s.37 of the Crime and Disorder Act 1998 makes plain, the principal aim of the youth justice system is to prevent offending; this translates therefore as the youth courts' principle aim in the sentencing process, all of which is underpinned by the welfare principle in s.44(1) Children and Young Persons Act 1933 (CYPA): “Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps to remove him/her from undesirable surroundings, and for securing that proper provision is made for his education and training.”
Commensurate with this R. v. inner London Crown Court ex parte N and S  1 Cr App R(S) 99 stated that s.44 can be given a wide meaning, so as to allow the imposition of deterrent sentences which override s.44 of the CYPA and accord with s.37 of the Crime and Disorder Act 1998 but made it clear – as has the subsequent practice of the juvenile courts – that the welfare of young offenders remains the touchstone and it is through that prism that the need for the
prevention of offending is operated.
Without delving much further into the statutory framework and supporting case law, it is quite easy to see how the aim of the juvenile system is tilted heavily in favour of a focus upon the juvenile. It is obvious that this runs exactly counter to the basis of the argument underpinning the first two parts to this series, but is the presumption enshrined within this law (which is in fact the very opposite to what my co author argues) that the welfare of the juvenile should be paramount; is that the correct philosophy to start from? To put it bluntly; should we always treat juveniles different because they are juveniles, based - as we do - on nothing more than their age? I believe we should not.
The Thing About Juveniles Today …
Imagine for a moment what the “typical teenager” is like today. Now think of what you think the “typical teenager” was like in the 1930’s, or 1960’s or 1980’s. There are many similarities but there are also huge differences; differences of attitude, approach and activity – some for good, some for ill but nonetheless, they're different. This isn't the place to explore why, save as to touch upon the fact we live in a far more interconnected world with (thankfully) less social, ethnic, economic and cultural barriers than ever before. The truth is, society is different now to how it once was and so too are our juveniles.
Individuals are more powerful in terms of the relative economic power they possess and the information they can access than ever before and for the first time in recorded history, juveniles have been at the vanguard of much of that – the world of social media is a huge case in point, dominated disproportionately by and for the young. Politicians shamelessly (and usually embarrassingly) seek the approval of juveniles and much resource is invested in calculating the best way of recognizing their needs and progression. The days when juveniles were seen and not heard, when their views were neither sought nor desired and when their economic and sociological importance was negligible are gone. Yet we endow them with the panoply of rights which comes with adulthood but deny them the responsibilities which come with it, purely on the ground of their age. Why? It has to be accepted, as I do, that whatever the changes to juvenile cognisance and behaviour that the last 50 years have brought, they will always – purely because youth equals inexperience which equates to vulnerability – need to be treated, generally, differently to adults. But that is not a universal truth and we need to wake up to the fact that juveniles today are more capable, more confidence and more involved in the world than ever before but that this means they are capable of more harm as well as more good. Look at the nationwide riots of 2010, juveniles were disproportionately culpable of these, often aided by their mastery of social media. Many were fully aware of what they were doing and saw the criminality which unfolded as a form of expression of their social conscience. Not all did – some were opportunistic – but should the law treat them as less culpable purely and arbitrarily because of their age?
A Subjective Test?
I don’t think it is hard to see how in certain cases, we should be prepared to reduce the relevance of an offenders age when we come to determining their culpability and therefore the sentence they may face. The primacy of the welfare test we already have is important but surely it needs to adapt to the times, to be moulded by the realities of the landscape in which it operates? The courts have become increasingly capable of assessing the abilities of witnesses and defendants and tailoring an approach which best aides their involvement in the criminal justice process and I suggest that it is now time to ask ourselves whether ages of criminal responsibility should become a presumption rather than a foundation. In other words, that when someone is under 18 we presume that their needs will be different in terms of the juvenile justice system but that the final determinant of this is based on the operation of a subjective test to determined their competence, awareness, culpability and general intent. This could be done by the sort of assessment currently done by Youth Offending Teams (YOT's) and the Probation Service when they compile pre sentence reports (PSR’s) on offenders but instead of the report being done prior to sentence, it should be done prior to charge. That way, if a juvenile was deemed to be capable of adult levels of reasoning and understanding, he or she could face the justice system in the same way as an adult; in other words, in a manner commensurate with his or her development and not randomly based on their age.
When it came to sentence, their age would always be a factor in the courts mind stemming from the pre sentence report process and the statutory framework already in place could remain but we would be left with a juvenile justice system that treated juveniles according to the content of their own brains and beliefs and not just according to when they happened to be born.
I would submit that this would bring the justice system into line with society more generally.
This four part series began with the words; “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." Enshrined within that sentence was a belief that somehow young people are treated in a manifestly unfair way by the criminal justice system. As we have seen, whatever the perceptions may be, the reality is that the law bends over backwards to not only be fair but to be seen to be fair; so much so that the punishment and prevention of offending are put second to the welfare test in the case of juveniles.
Undoubtedly, as Nav Virk clearly argues, the media do demonise juveniles but then they are guilty of demonising most groups, most of the time. The remedy for that is not to stop punishing violent or dangerous juveniles, or to import IKEA inspired Scandinavian social theories, let alone to presume that every juvenile is a victim. Trepidation, hysteria and nostalgia are all real forces – on both sides of this debate - but none of them is scientific, logical or evidence based. What would be scientific, logical and evidence based would be a juvenile justice system that adapted to the needs of the individuals – witnesses and defendants – based not on their age, but rather based on the content of their characters. I agree completely with my co author; trepidation, hysteria and nostalgia have no place in our juvenile justice system, so we should ignore the well meaning but naive counsel of despair which flatly refuses to accept that juveniles should ever be treated as firmly as adults and instead open our minds to a more pragmatic and individualistic approach which demonstrates that most important lesson; with age may come wisdom but for all ages, with rights come responsibilities.
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.