Sunday 28 August 2011

Explaining our law and legal system ... No.7 ... Youth Justice ... Part 1 (Background)

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries
No.5 - Magistrates

For the purposes of youth justice, a "child" is under age 14.  A "young person" is aged 14 to 17 inclusive.  This post, on the Youth Justice System, will be in two parts.

The poster (pictured above left) was produced in 2009 when Sheffield Youth Court held an "open day."  It encapsulates the development of youth justice from the merciless severity of pre-Victorian England to the modern system which has the principal aim of preventing offending by children and young persons (Crime and Disorder Act 1998 s.37).  Furthermore, since the Children and Young Persons Act 1933 s44, every court in dealing with a child or young person shall have regard to the welfare of the child or young person.

A sketch of the history:

"Juvenile Courts" - (as they were then known) - did not come until the Children Act 1908.  The Act also abolished the death penalty for children under age 16 and made child neglect and abuse a criminal offence.  Before this Act, children were tried as adults and frequently given punitive sentences.  The Act created a court which not only addressed criminal matters but also covered care proceedings.  Here was a recognition that criminality in the young can be linked to the "care" given to the child in the home environment.  Interestingly, the Children Act 1989 separated the functions of juvenile courts so that welfare-related matters are now dealt with as "family proceedings" and crime is handled by the juvenile courts.  The Criminal Justice Act 1991 s.70 renamed the juvenile courts as Youth Courts.

The Children and Young Persons Act 1933 created the "welfare principle" in youth court proceedings (s.44) and raised the age of criminal responsibility to 8 - (1933 Act s.50).  This age was raised to 10 years by the Children and Young Persons Act 1963 s.16.   This remains a controversial issue - see earlier Law and Lawyers post "Criminal Liability of Children and their trials" - 26th May 2010.   A White Paper in 1965 - ("The Child, the family and the Young Offender") - proposed raising the age to 16.  The Children and Young Persons Act 1969 contained provision to make it 14 but, following a change of government from Labour to Conservative, this was never implemented.

One matter which was abolished by the Crime and Disorder Act 1998 s.34 was the "rebuttable presumption of law" known to lawyers as "doli incapax" - that is, that a person under age 14 was presumed to be incapable of committing a crime unless it could be shown that he knew that he was doing something that was wrong.  The matter was considered by the House of Lords in R v JTB [2009] UKHL 20 where it was held that section 34 had abolished not only the presumption of doli incapax but also any such defence.  The existence of the presumption was
attacked as far back as 1954 by Professor Glanville Williams - Criminal Responsibility of Children [1954] Crim LR 493.  Williams wrote -

" ... at the present day the 'knowledge of wrong test' stands in the way not of punishment, but of educational treatment. It saves the child not from prison, transportation, or the gallows, but from the probation officer, the foster-parent, or the approved school. The paradoxical result is that, the more warped the child's moral standards, the safer he is from the correctional treatment of the criminal law."

Over the years, the methods of dealing with young offenders have undergone numerous reforms - too many to consider in detail here.  For example, in 1982, "Borstals" were replaced with youth custody and detention centres.  In 1988, Young Offenders Institutions came into being.  It appears that reaction to the murder of James Bulger sparked a shift to a more punitive approach in government policy irrespective of the political party in power.   The Criminal Justice and Public Order Act 1994 introduced Secure Training Centres.

The Crime and Disorder Act 1998 created the Youth Justice Board; required local authorities to have "Youth Offending Teams" (YOT) as well as introducing to the law the anti-social behaviour order (ASBO).

In 1989, the United Nations developed the Convention on the Rights of the Child which came into force in international law on 2nd September 1990 and binds the UK in international law.   It recognises that children have some very fundamental rights and that they require special care and attention.  The Convention has not been incorporated into English law by Parliament enacting legislation but, in appropriate cases, the Convention would be considered by the courts.  A useful summary factsheet is available.

In September 2003 the government published "Youth Justice - the next steps" which looked at possible further changes to the Youth Justice System.

In 2008, a Youth Crime Action Plan was introduced which places emphasis on young offenders facing up to their crimes and meeting victims.  The Plan claimed to be a truly comprehensive integrated approach to youth crime.  The Criminal Justice and Immigration Act 2008 poured on further changes with the Youth Rehabilitation Order and some other significant matters.

After the 2010 general election, the coalition government announced that the Youth Justice Board (YJB) would be abolished - see Bonfire of the Quangos.  This appears to remain government policy.  However, the government suffered a defeat in the House of Lords over the issue and Kenneth Clarke said that he would reflect on the matter.  Abolition of the YJB would necessitate the Ministry of Justice becoming directly responsible for a considerable number of the YJB's present functions.

A useful look at the system as it was in 2008 is "Ten Years of Labour's Youth Justice Reforms: an independent audit" by Centre for Crime and Justice Studies, King's College, London.   In February 2011, the House of Commons Public Accounts Committee published - "The Youth Justice System in England and Wales: Reducing Offending by Young Persons" - 21st Report of Session 2010-11.   This report comments:

Central government and local authorities spent £800 million in 2009-10 dealing with youth crime, primarily through the Youth Justice Board nationally and Youth Offending Teams locally. Ten per cent was spent on trying to prevent young people becoming offenders. Most of the rest was incurred in dealing with offending behaviour, including over £300 million on custody, which is used to deal with 3% of offences. The National Audit Office has estimated that the total costs to the UK economy of offending by young people could
be up to £11 billion a year.

and also ...

"In recent years, the Youth Justice Board has been effective in leading reform within the youth justice system and diverting resources to the offenders most at risk of committing future crimes. Since 2000, the number of young people entering the youth justice system, the number held in custody and the amount of reoffending committed by young people, have all fallen. Youth custody, which is expensive relative to other ways of dealing with young offenders, has fallen during a period when the number of adults in custody has continued to rise. This is a particularly noteworthy achievement, and one in which the Board has played a central part."

Political dogma apart, one may wonder why, in the light of such acknowledged success, the present government seeks to be rid of the Youth Justice Board?  (See Public Bodies Report Stage).

The reader may well detect in all of this the fact that the approach to youth justice in England and Wales has been (and perhaps remains) something of a political football.  There has been an almost continual accretion of statutory changes with the result that the system is complex and, in several ways, unsatisfactory.  Part 2 post will consider the system as it is at present and will also take a brief look at youth justice methods in Scotland and Northern Ireland.

1 comment:

  1. The idea that lower rates of imprisonment are in themselves seen a "noteworthy achievement" is an interesting one, and makes one wonder what the Youth Justice Board believes it's role to be.

    The one statistic which is not quoted is the effect on levels of crime. If these individuals are encouraged not to reoffend, that is good, but if encouragement is given to others, that is bad.