Criminalizing Children – Justified ?

The question of whether it is right to hold young people to book for actions contrary to law is neither novel, nor dare I say resolved; indeed abstract concepts are always contentious! Is the processing of minors through the Youth Justice System a necessary evil or is it possibly an inequitable obstacle burdensome upon future generations ? Perhaps it is neither, but in absence of a Cabinet Minister for Children, answers by Parliamentary Under Secretary of State’s on questions of youth criminality might invariably include soundbites to the note of…

[‘We] believe that by providing families with the appropriate guidance and information they need will enable them to make the informed decisions that will ultimately serve their children, their family and society best. Government is resolved in its dedication and support to all of the United Kingdom’s children, we are determined in our beliefs that young people irrespective of background or circumstance are the future of our society… and as can be seen by our Youth Justice statistics we are committed to reducing the number of children provided for in the Youth Secure Estate, as we are equally committed to reducing the number of first time entrants into the Criminal Justice System…’

Laudable, and quite possibly genuine. It would certainly warrant unbiased appraisal, thought preferably one not tainted with issue embodied by either House – too easy would it be for some, perhaps many, to draw inferences between sincerity and the maceration of financial or otherwise [agenda]; indeed such things are typically epitomised by necessity which seldom holds in[law]. One could easily envisage a preliminary conclusion that ‘as opposed to the age old unelectable issue of housing there may now it seems, be votes in securing the best interests of the [child] – [extra emphasis]   

But conjecture will get one no where! as lawyers, it is our duty to look at the facts!

In England and Wales the age of criminal responsibility is ten years old, ergo a child of this age or above is deemed [doli capax]; in the eye of the law it is this age that indicates a sufficient understanding of right and wrong and thus formation of logical intent for the purpose of mens rea…

..I say nothing of capacity or fitness.

At the crux of some of the arguments against criminalizing young children   is the absolute nature of Art.3 ECHR, however the age of ten has been held legitimate and thus not in contravention – (2000) 30 E.H.R.R. 121.

Given this age of competency is comparatively lower than other member states of the European Union, this might strike as an oddity to both the layperson and seasoned practitioner. In fact England, Wales and Northern Ireland have the second lowest age of accountability above all member states bar Malta, where a child found on the wrong side of the law may be held criminally culpable at the age of nine – dependent on a ‘mischievous misdirection’ .

One could be forgiven for thinking….

‘come on, we live in Great Britain it’s not like we throw away the key, kids these days get a slap on the wrist for lifting sweets, not like it used to be, we’ve got rights now, get real, check your facts!!’

Again such a statement is laudable, but its also conceivable to suggest it neglects to credit (if one can do such a thing) the subtle accuracies that mean a great deal to many in everyday life. Jurisprudentially were such ommissive accounts submitted in a court say, and were they greeted receptively (as they might well be),  then a [life] could literally be at the mercy of interpretation and consensus surrounding primary evidence;as opposed to being supplemented by the powerful input of circumstantial realities.

An illustration of such reality is that arguably the youth of today are subjected to an overwhelming degree of sensory, cultural, and economic influence; many more exist but I name just those in abundance. Legislative and Policy actions have substantiated these concerns to the extent that ‘acts’ not carried out in the community (or at least not fully attributable to community members), nor deemed crimes per se have been linked to [a] path of causation regarding, children and harm. Contrary to common legal knowledge but embracing consistant judicial dicta, this would appear to be acknowledgement that in the case of influencing children, and they way they behave (behavior giving effect to thought), like much in life, things are not quite clear cut.

I retort, lawyer or not, its difficult to remain neutral in this emotive issue, hence the drafter must engage their own inner check and balance so as to avoid verboseness and ensure accuracy!

Back to the [facts]

That such a young age is attached to criminality in the United Kingdom is surely cause for concern yet possibly not a cause of great surprise?

Per Lord Reed..

‘Since perceptions of childhood reflect social, cultural and historical circumstances, and are subject to change over time, it is unsurprising that different States should have different ages of responsibility’

As evinced, this is indicative of what the European Parliament has supported to be termed as ‘a core value’ in respect a constitutions discharge of its ‘executive power’. To go further, if permitted, one might also suggest it resonates as a normative acceptability. Just a second, does that mean [our] constitution by preference treats children shall we say.. harshly?

Ok so we lock them up young! but surely a punitive approach holds if they are harmful to society. At least both they and we will be protected ?

Whilst undoubtedly many will remember being taught about the ‘workhouses’, their abundance of children and the strict mandate issued by the Poor Law Commissioners for the administration of corporal punishment – but perhaps some may be forgiven for having forgotten the many cases of abuse which became evident after that period; lest we forget that incorrect procedural application does not resile solely to the power of custodian, it reverberates in many aspects of life, including in the home where reasonable chastisement is defensible under s.39 of the [Criminal Justice Act 1988]

I digress, Family aside [for now] but abuse of the above or indeed any other like mandate are a thing which remains firmly in the past no?

Well aside from the fact that post  the [Education Act 1996] and prior to the [Human Rights Act 1998] ‘Britain was unique in Europe because it retained corporal punishment in some schools’ and given that s.36 of the [Crime and Disorder Act 1998] saw of the final element of capital punishment in times of [peace], some might ask (perhaps with legitimacy) whether it is appropriate to question how the state manages delinquent or belligerent children. They won’t swing from the gallows at least – even if an act of treason is committed.

But what about today?

For a start according to the Ministry of Justice we are arresting, sentencing and imprisoning less and less of our children each year, very laudable. Latestdata states that 126,809 children in England and Wales were arrested for[notifiable] offences in a given year, accounting for 10.5% of [all] arrests within that year, 90,769 of which resulted in either (i) conviction (ii) formal caution or (iii) other out of court disposals.


Perhaps more so is that per head of population, the rate of juvenile first time entrants remains higher than for adults. This presents a number of questions, two of which are obvious but contrasting, (i) why are the police arresting children in such proportions and (ii) what if any are the prominent or recurring themes. A trick question of sort in that the former is so patently involved in the latter and of-course there exist many variables – but as indicated by Her Majesty’s Inspectorate of Constabulary it does merit discussion.

Commenting on the vital necessity that members of the Police differentiate between the need to protect and the need to exercise powers of arrest the body said..

‘The bricks and mortar of the custody suite and the police cell do not, and cannot make this distinction. As a result, some of the most vulnerable in our society may be subject to the same physical conditions and treatment as some of the most harmful’.

The calamity of being imprisoned as a child is perhaps reflected no more so than in the [recorded] instances of self harm among incarcerated children. Even if current data is analysed favorably from an MOJ perspective eg not following the median percentage, it reveals that in the recorded year ‘There were 1,318 incidents of self harm’ – in mitigation this is a reduction of eight percent since the last recorded year, but it is a valid concern that The child custody population at the end of July 2015 was 1,003 with an occupancy rate of ‘85.7%’

Through any system of analysis these numbers indicate that an overwhelming majority of young people provided for in custody are self harming, (if polling day could benefit from such numbers, low turn outs would be a thing of the past). Therefor it might strike the atypical but reasonable person that in terms of punishment, rehabilitation and safeguarding of the public, the lines are at times shall we say blurred. With regard to the UN Convention on the Rights of the Child, the high percentages of juvenile arrests are without doubt compounded by constitutional irregularities such as – unlike other Eu members the Uk is the only state that sets no time limit on the maximum term of imprisonment available for juveniles’

Art. 37 UNCRC

‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’

Without commenting on breaches of Art.37(c) or Art.10.2(b) ICCPR… what is to be done?

Nobody likes crime, whether it’s perpetrated by youths on the proverbial street corner or committed by those [of] age in any other place, the dislike is not a matter of contention. Equally it is hoped this disdain holds for the innumerous circumstances that [put] children on such corners. Given the impact deprivation of liberty is evidently having on children, are we not morally and perhaps even legally obliged to ask whether something is being missed ?

Perhaps cases should be dealt with upon the lines of severity, with a keen eye for the merits of possible defenses so as to mitigate unsavory behavior, again laudable but quite possibly impractical in the pursuit of fairness and certainty. Whilst principles such as ignorantia legis neminem excusat are a constitutional necessity, maybe it is time to reflect on how and why we hold children to account for crimes that are mala prohibita in nature.

Are particular groups of children prone to arrest ? See the work of the Prison Reform Trust and Lord Laming!

Being a child is tough, they are inherently vulnerable. Being a child with a criminal record is tougher, but being a vulnerable child who is the victim of crime but is also a criminal is truly dire – disproportionate to the methodology of justice? My example would be the cases of victims of abuse who have had compensation awarded by the CICA exponentially reduced due to the [fact] they had themselves committed crimes – albeit comparatively small in nature

Undoubtedly there are varying degrees of harm and few would argue that children should be subject to blanket immunity for wrongs, but it might be time for a different approach to punitive and rehabilitative measures. In the hierarchy of things the two go hand in hand, perhaps the order of rank needs revising.

By Hal Brinton.

Hal Brinton is an academic lawyer studying at the University of Leeds. He began  his legal career at Ruskin College Oxford which is a model for labour colleges around the world. Coming from

a political background and influenced by Ruskin’s long and varied history Hal committed himself to social justice and equality policy. His current research interests are, Human Rights, Feminist

Jurisprudence, Legal Aid Reform, Anti Discrimination Law, Environmental Law and the Law of Obligation


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