Children and Crime: Victims or Villains”?
The modern Criminal Justice System (CJS) has adapted to encompass trials involving the vulnerable so that no one is excluded. Adaptations allow children to participate in the proceedings in which they are victims or accused. Since the CJS is capable of a modern and participative approach whereas in so many recent cases, social services have been shown to be inept, this is the wrong time to call for an alternative system for deciding if a child has committed a crime or is a victim or for raising the age of criminal responsibility
In January 2010, 2 boys aged 11 and 12 were convicted of a brutal and sexual attack which took place in Edlington, on 2 younger boys. The public, through the media, reacted with fury labelling the defendants “feral children” and demanding to know why they would be eligible for release in 5 years. Four months later 2 boys aged 11 were convicted of attempted rape of an 8 year old girl at The Old Bailey. The public reacted with fury questioning why the boys had been prosecuted at all. The case was leapt on as a reason to criticise the CJS and to support the case for raising the age of criminal responsibility. Why were the reactions so different and what can the CJS learn?
Decisions to prosecute
Decisions to prosecute children are never taken lightly. Every effort is made to divert children away from the courts. Each case is decided on its own facts. The prosecution apply two tests: sufficiency of evidence and public interest. CPS policy is to take into account their social, educational and (if relevant) medical background. The advantage of the public reaction to the conviction of the two Bailey boys of attempted rape is that it created an opportunity to reflect on when it is right to prosecute children for sexual offending taking into account the specific facts of a given case rather than a blanket rule not to prosecute any child under a certain age. Ultimately, one case should not be used to bring the whole system into disrepute.
Usually cases involving particularly vulnerable young defendants are not prosecuted but when serious offences are committed it is often in the public interest for those matters to come to court for a fact finding exercise. Part of that exercise is to choose the appropriate charge. Where all protagonists in sexual activity are under the age of 18 there is no need to charge rape. Section 13 of the Sexual Offences Act 2003 provides an offence of sexual activity with a child by a young person carrying a maximum of 5 years and triable in the youth court. Where all children are under 13 this seems to be the most suitable charge whatever the alleged conduct. It would be a simple exercise for CPS policy to be amended to charge section 13 rather than rape where all parties are under the age of 13 and there is no other offending.
Judicial Review
It is often forgotten that a decision to prosecute a child can be the subject of judicial review. Those who represent children in these circumstances should make use of this more often, challenging the CPS to justify its decision making process in any case where the decision is obviously unreasonable however serious the offence. This is a somewhat cumbersome process which requires an application to the High Court within a limited time. It is a vital tool in the armour of a defence advocate but it ought to be a simpler and swifter process
Court venue
The Crown Court only deals with cases where the crime alleged is defined as “grave”. Rape of a child is generally a grave crime. Sexual activity between children is not. It is a common misconception that courts are conducted in an archaic way. Courts are routinely adapted to accommodate vulnerable witnesses and vulnerable defendants although hopefully in a less intimidating building than the Old Bailey. Calls for an alternative system of judgement on the actions of children are entirely unnecessary and risk denying children the right to a fair jury trial
Child witnesses
Crimes committed against children are often the most shocking and most people would agree should be met with criminal proceedings. This necessitates children coming to court to give evidence with the assistance of special measures. Such cases need to be conducted by experienced advocates and judges so the new system for grading advocates on both sides must be welcomed, providing it is implemented properly. In R v James Watts the Court of Appeal endorsed the way a Crown Court had accommodated the evidence of 2 adult witnesses who complained of sexual assault by a care worker. Each had profound cerebral palsy. One used electronic communicators pointing to pictures and drawings and the other communicated by eye movement. It was a tortuous and lengthy process but if we can accommodate them (and so we should), frankly we can accommodate anyone
Child defendants
Defending children in the criminal justice system is never easy. The consolidated criminal practice direction applies in all crown courts dealing with persons under the age of 18. It provides that “all possible steps should be taken to assist a vulnerable defendant to understand and participate in those proceedings....and ..... The steps which should be taken …. should be judged, in any given case, taking account of the age, maturity and development (intellectual, social and emotional) of the defendant concerned and all other circumstances of the case”
Courts must be adapted to become less formal. In cases where the child defendant also has learning difficulties expert psychological assessments can also be made and be put before the jury. Assistance by way of a parent / or an intermediary can be provided. Prior to trial, defence advocates meet the child defendant on more than one occasion so that we get to know each other and, more importantly, so that we can communicate his or her case to the jury. The courts already recognise that children convicted of serious crime should not be dealt with in the same way as adults. Sentences are much shorter and often non-custodial. Hence the lower minimum term for the Edlington boys and the supervision orders for the Bailey boys
Sex Offender orders
Controversially, notification on the Sex Offenders Register (which requires an offender to notify his whereabouts to the police) applies to children but liability is usually for half the length of time as for an adult although not always for a s13 offence. Registration is not an order of the court. It flows automatically on conviction and the judge has no discretion. Many take the view that children should not be subject to such a requirement but the courts have no power to change the law. That would be for Parliamentary debate. In my view, no child under the age of 13 should be placed on the sex offenders register. Notifying whereabouts can be done by way of a parenting order which can be directed at parents or a local authority if a child is in care
Raising the age of criminal
responsibility
Most psychologists agree that children know the difference between right and wrong by the age of 4 although sexual awareness can come sometime later. The age of criminal responsibility in this country is 10. In other countries it is higher. However, all of those countries have instituted a fact finding exercise. We cannot find a child guilty of an alleged offence without a trial of some sort. In my view, the Old Bailey case should not be used as a tool for raising the age of criminal responsibility thereby denying children their right to trial by jury in serious cases. Without the girl’s evidence being tested, no-one would have known that the allegation of rape was inaccurate
In my view, as with adults, the answer is the one we already have which is that each case is considered on its own facts and decisions to prosecute (or not) are based on the available evidence and background information in a particular case. Where there is evidence that the CJS is reacting properly to cases involving children, there is no basis for changing to a less robust system. Where mistakes are made in an individual case, it is an opportunity to learn, not to throw the baby out with the bath water.
What can CJS learn?
The differing reactions to the Edlington and Bailey cases can probably be explained because the public misunderstood that the charge of rape can cover consensual activity when the victim is under 13 and/or because it was the wrong charge and s13 SOA 2003 should have been used instead but most likely because of the choice of venue. The judge in the Bailey case is compiling a report about the case to submit to the Lord Chief Justice: "That is not to indicate that there is anything wrong, but we should do everything we can to improve how we deal with these things by looking at the lessons that we can learn". Legislation and practice directions are already in place to ensure that vulnerable defendants can properly participate in criminal proceedings although there is some tweaking which could be done
(i) Keep adapting to allow every type of witness and defendant to participate in a modern and fair trial process
(ii) Speed up the system of judicial review of decisions to prosecute (or not to prosecute)
(iii) Formalise CPS policy as to the appropriate sexual charge when all parties are under the age of 13
(iv) Remove the requirement for notification on the sex offenders register for children under 13 and replace with a parenting order
(v) Ensure that the proposed accreditation of all prosecution and defence advocates is implemented properly
(vi) Never hold child only trials at the Central Criminal Court
Like any system, the CJS should not remain rooted in time, it can and must adapt to the given scenario. For my part, whilst I would personally welcome better social support for children, we have a CJS at the moment where children over 10 years of age face a trial process if diversion has failed or the offence is so serious it is in the public interest to try the allegation. This has a check within the system as it is subject to a judicial review, if the prosecution have made an unreasonable decision. Most cases are dealt with in specialist youth courts. Crown Court trials are reserved for the most grave of allegations and are generally dealt with by experienced advocates and trained judges. The public, in the concentrated form of a jury, decide the outcome and the wider public can feel confident we are doing the right thing
This article is part of a paper which was delivered on the 13th of November 2010 at the Autumn Conference of The Forensic Science Society
Felicity Gerry
Barrister
Co-Author of The Sexual Offences Handbook
Official Blogger for Criminal Law and Justice Weekly
Chambers of Frances
Oldham QC
36 Bedford Row
London
WC1R 4JH
Tel: 020 7421 8000
Fax: 020 7421 8035
Mobile 07979800176
DX: LDE 360 Chancery Lane
www.36bedfordrow.co.uk
fgerry@36bedfordrow.co.uk
secure e-mail: clerks@36bedfordrow.co.uk.cjsm.net