Current Meanings Of Child And Young Person Criminology Essay

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Firstly this essay will outline the current meanings of 'child' and 'young person' which are derived from statute, although it should be made clear that these definitions are not rigidly adhered to and may, therefore, cause some discrepancies when comparing England and Wales with other jurisdictions. I shall consider statistical data as regards to the number of children and young people in custody in England and Wales, reconviction rates (and how these are ascertained) and the effects on young people of being in closed conditions, particularly in terms of substance abuse and mental health issues. This essay will also discuss alternatives to custody both in terms of viability and the relative costs. Finally I will discuss whether the age of criminal responsibility should be increased in line with the rest of Europe and analyse whether custodial sentences for young offenders should be abolished.

Between 1995 and 2009 the total prison population in England and Wales grew by 32,500 or 66 per cent. England and Wales currently has the highest imprisonment rate in Western Europe at 154 per 100,000 of the population [1] . On 6 November 2009, the prison population in England and Wales was 84,522. Although France has a similar sized population, they have only 59,655 prisoners, and in Germany with 20 million more people the prison population was 73,592 [2] . Most worryingly, projections indicate that the prison population in England and Wales will continue to increase and could reach more than 100,000 by 2014 [3] .

The current meaning of 'child' can be found in the Children and Young Persons Act 1933 s.107(1) which defines a child as being under the age of 14. The Criminal Justice Act 1991 s.68 defines a 'young person' as being under the age of 17 (previously 18 under the Children and Young Persons Act 1933).

Between 2000 and 2007, there was a 13.2 per cent increase in the population of children and young people in the 'secure estate' which includes Young Offenders Institutes, Secure Training Centres and Local Authority Secure Children's Homes. However figures produced by the Youth Justice Board show that in January 2010 there were 2,096 children and young people under the age of 18 in custody which is a reduction from some 2,726 the year before. In relation to the figures for 2010, 1,992 offenders were male and 104 were female. Young Offenders Institutes catered for 1,712 of those in custody, 241 being held in Secure Training Centres and 143 in Local Authority Secure Children's Homes. Please refer to Appendix A for further breakdowns.

PURPOSE OF CUSTODY

For particularly grave crimes such as murder, a judge has no alternative but to impose a custodial sentence. For lesser crimes, a custodial sentence may be imposed as a form of punishment, as a deterrent, or an indeterminate sentence for public protection (IPP). It is always hoped that a custodial sentence will aid the rehabilitation and education of an offender so as to reduce the likelihood of reoffending in a more serious manner in the future.

The principle aim of the youth justice system is to prevent offending by children and young people [4] Section 44 of the Children and Young Persons Act 1933 states that "every court in dealing with a child or young person who is brought before it shall have regard to the welfare of the child or young person.

Before deciding to impose a custodial sentence on a child or young offender the court must ensure that all the statutory tests are satisfied:

that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order

that a youth rehabilitation order with intensive supervision and surveillance

or with fostering cannot be justified, and

that custody is the last resort

and in doing so should take account of the circumstances, age and maturity of the young offender. [5] 

The Justice Secretary Jack Straw reiterated that "prisons are, as they should be, first and foremost places of punishment, primarily through the deprivation of liberty but also through a regime behind bars which is tough and fair. At the same time we must recognise that the public are not protected, nor the taxpayer best served, unless they are also places of reformed behaviour and rehabilitation". [6] 

Particularly in terms of children and young people rehabilitation is key; both in terms of reducing the likelihood of reoffending in the future and in terms of helping the young person get their life back on track. In June 2008, the Children, Schools and Families Secretary Ed Balls promised "a triple track approach of tough enforcement and early intervention to tackle the causes of violent and antisocial behaviour and support for youngsters". [7] 

The Youth Justice Board Strategy for the Secure Estate, published in 2005, stated that in the case of children and young people, "custody should be used particularly sparingly because of their dependent, developing and vulnerable status". [8] The Criminal Justice Act 2003 states that the court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. [9] 

Youth practitioners and children's charities remain deeply concerned about what is considered to be unnecessary custodial sentencing of children and young people in England and Wales. It is widely observed that these two countries, reflecting the low age of criminal responsibility, have more children and young people in custody than any other jurisdiction in Western Europe. In 2008, the United Nations Committee for the Rights of the Child found that "the number of children deprived of liberty [in the UK] is high, which indicates that detention is not always applied as a measure of last resort". [10] 

Research by children's charity Barnado's in 2008 showed that 95 per cent of children aged 12 to 14 who were given a custodial sentence were not convicted of a serious offence and 82 per cent had not committed a violent offence. The charity's research also showed that 35 per cent of children aged 12 to 14 in custody did not appear to meet the custody thresholds as defined in the Powers of the Criminal Courts (Sentencing) Act 2000. For many of these children and young people it is clear that a sentence served in the community would be more appropriate due to the damaging effects a custodial sentence can potentially have in the long term.

REOFFENDING

The usual method for assessing the extent to which reoffending has taken place following an intervention is to ascertain whether or not an offender has been reconvicted in the two years following the intervention compared with a control group which has not received the intervention. [11] Some youth studies however use a 12 month follow up period due to the steep rise in the age-crime curve in the mid to late teenage years. [12] 

Reoffending following a custodial sentence remains high with over 70 per cent of young people being reconvicted within 12 months of being released from custody. The number of reoffences per 100 children aged 13 years was 532 compared to 349 for young people aged 17. [13] 

The number of proven offences committed by the 2008 cohort was 51,084, down from the 62,344 offences committed by the 2000 cohort, despite an increase in the size of the cohort from 41,176 in 2000 to 44,837 in 2008. The most frequent types of offences committed by the 2008 cohort were violence (non serious), theft and criminal or malicious damage; please see Appendix B. On average, offenders in the 2008 cohort took 128 days to reoffend. [14] 

The Children and Young People in Custody report 2006-2008 found that 60 per cent of young men and 62 per cent of young women had been in custody more than once, with 6 per cent of young men and 9 per cent of young women having been in custody more than five times. [15] It is clear that the needs of children and young offenders are not being met in the custodial setting.

In England and Wales reoffending is estimated to cost £11 billion every year, without considering the unquantifiable costs in terms of victim suffering and reduced public confidence in the criminal justice system. [16] The number of children and young people being given custodial sentences in England and Wales and the level of reoffending upon release indicate that custody is an expensive and ineffective tool for addressing youth crime in the 21st Century. [17] 

It is well documented that having a parent in prison is one of the risk indicators for offending behaviour in children and young people. "If we continue to rely so heavily on custody as a response to youth offending we will compound this ongoing risk for today's generation's own children". [18] 

A SmartJustice survey undertaken in 2008 found that two in three people believe that prisons are 'universities of crime' and 65 per cent feel that they are not effective in reducing young people's offending. Research has shown that 55 per cent of the public believe that better parenting and 42 per cent think that more constructive activities for young people would have the most effect on reducing crime.

There is evidence to support the positive influence of mentors in reducing reoffending by those at risk. Research has shown that reoffending can be reduced by between 4 and 11 per cent through mentoring programmes run by local Youth Offending Teams. [19] SOVA (Supporting Others through Voluntary Action) is one of the leading organisations to offer such programmes which have been shown to improve young offender's self esteem, employability and provide them with a positive role model.

Three types of intervention have been linked with a reduced likelihood of reoffending; contact with a probation officer, attending a prison job club and attending a victim awareness course. Such findings should however be interpreted with caution as they only indicate whether prisoners participated in programmes not whether they were actually completed.

EFFECTS ON VULNERABLE YOUNG PEOPLE OF BEING IN CLOSED CONDITIONS

Mental health problems coupled with drug and alcohol abuse are common place amongst young people in custody, with an estimated 95 per cent suffering from a mental disorder(s), substance misuse problems, or both. [20] It is unclear what percentage of offenders enter custody already suffering from such problems and how many offender's problems are a direct result of custody.

Studies have shown that mental health problems in the general population of young people have been estimated at 13 per cent for females and 10 per cent for males aged 11 to 15. Within the criminal justice system mental health problems with regard to young people are far more prevalent, ranging from between 25 and 81 per cent, with those in custody being at the higher end of the scale. Figures suggest that rates of mental health problems are at least three times higher for those within the criminal justice system and it is considered that there are three main reasons for this;

the original risk factors that led to their offending also predict, in the general population, mental health problems

various aspects of offending itself may cause mental health problems.

interactions with the criminal justice system are stressful and may on their own lead to anxiety and depression [21] 

Self harm is common in custody, particularly amongst young people. In 2008 there were 2,040 reports, with a total of 892 offenders being considered 'self-harmers'. The average number of individuals in Young Offenders Institutes during 2008 was 2,427 which equates to 37 per cent of children in prisons harming themselves on a regular basis. In 2004, Adam Rickwood became the youngest child to commit suicide in custody in Britain. The 14 year old hanged himself after carers at the Hassockfield Secure Training Centre used restraint techniques which had not been approved for use on young offenders. The medical journal The Lancet reports that young males in prison are eighteen times more prone to commit suicide than those of the same age in the community. [22] 

A report entitled 'Juveniles in Custody' by HM Inspectorate of Prisons and Youth Justice Board in 2003/04 found that around a third of children felt unsafe at some time in custody and one in ten children said they had been hit, kicked or assaulted by a member of staff.

A custodial sentence often makes it more difficult for a young person to find employment after their release. A criminal conviction may discourage potential employers from employing ex-offenders, who are legally obliged to disclose their conviction(s) until they are considered 'spent' under the Rehabilitation of Offenders Act 1974. Certain convictions can be treated as 'spent' after a period of rehabilitation which depends on the length of custodial sentence. However in the event that the sentence was more than thirty months in length the conviction will never become spent. [23] 

Many children and young people feel unsupported and need additional help with finding accommodation upon their release (around 15 per cent of young people do not have suitable accommodation arranged) as well as accessing education and/or training. [24] Such "lack of support and unstable accommodation arrangements often mean that offenders experience difficulty reintegrating with society once they are released from prison". [25] 

ALTERNATIVES TO CUSTODY - ARE THEY VIABLE AND WHAT ARE THE RELATIVE COSTS?

The New Economic Foundation report entitled 'Punishing costs: How locking up children is making Britain less safe' found that "prison costs the public purse about six times more than sending a child to Eton". Studies have also suggested that prison actually increases the risk of reoffending by 3.9 per cent. [26] 

Providing a place in a Young Offenders Institution has been estimated to cost around £60,000 per year, the cost of keeping a child in a Local Authority Secure Children's Home around £215,000 and approximately £160,000 to send a child to a Secure Training Centre. [27] In addition to these annual costs the New Economics Foundation estimates that "custodial sentencing costs taxpayers an extra £40,000 per young offender due to the increased likelihood of unemployment and reoffending". [28] 

The Youth Justice Board spends ten times more on custody than on crime prevention. [29] In the case of less serious offences this money could be better spent on reducing reoffending through community sentences which address the causes of reoffending.

A range of non-custodial disposals for children and young people are available to the courts. These include fines, conditional and absolute discharges and community orders. The Detention and Training Order (DTO) was established by the Crime and Disorder Act 1998 and can be given to children and young people aged between 12 and 17 (not under 14 unless a 'persistent offender'). The first half of the sentence is served in custody and the second half is served in the community under the supervision of the local Youth Offending Team (YOT). Cost

The Youth Rehabilitation Order, established by Part 1 of the Criminal Justice and Immigration Act 2008, is replacing nine of the current community sentences including the supervision order and the drug treatment and testing order. [30] It is anticipated that the order will simplify sentencing and provide clarity. In order to encourage community sentencing, reasons must be given if an alternative to custody is not used for those offenders on the custody threshold. Certain conditions can be attached to the Youth Rehabilitation Order, including curfew and electronic monitoring requirements and the Intensive Supervision and Surveillance Programme outlined below. Cost

Intensive Supervision and Surveillance Programmes (ISSP) were developed after research suggested that just 3 per cent of young offenders were responsible for 25 per cent of all youth crime. Since 2001, the Youth Justice Board has invested approximately £80 million in order "to establish the ISSP as the most robust alternative to custody for prolific young offenders". [31] The programme is intended to ensure that the young person addresses the causes of their behaviour, makes recompense for their offences and any risks posed by the young person to the community are managed, whilst reintegrating the young person back into the community. [32] The programmes are more costly than community sentences at £6,000 for a 6 month programme [33] and a report commissioned by the Youth Justice Board found that nine out of ten young people were reconvicted within two years, although the frequency of offending was reduced by 39 per cent over one year and the seriousness of offending was reduced by 13 per cent over the same period [34] .

In the event that a young person pleads guilty to a first time offence in the Youth Court s/he may be given a Referral Order which requires the young person to attend a youth offender panel. Such panel is made up of two volunteers from the local community supported by a trained adviser from the Youth Offending Team. An agreement is reached between the young person, their parents and the victim, with the aim of repairing the harm caused by the offence and addressing the causes of their behaviour. Cost

The Reparation Order was established by the Crime and Disorder Act 1998 and is designed to assist young offenders understand the consequences of their offending and take responsibility for their behaviour. The young person is required to repair the harm caused by their offence, either directly to the victim or indirectly to the community. For those children and young people whose home life is considered to have contributed to their offending the Intensive Fostering programme is another alternative to custody. The programme aims to hold a young person accountable for their actions whilst ensuring that they get the necessary support in order to address issues which may have contributed to their offending. Cost

Community sentences are far less disruptive to an offender's personal life than a traditional custodial sentence and the Ministry of Justice reported in 2008 that community sentencing had reduced reoffending by 7.4 per cent since 2000, whilst also reducing the ever increasing problem of overcrowding. Research undertaken by the Howard League for Penal Reform suggests that approximately two thirds of those in prison lose their jobs, one third lose their homes and 40 per cent lose contact with their family. A study undertaken by the Ministry of Justice in 2008 found that those prisoners who were visited in prison by a family member have a far lower rate of reoffending (52 per cent) in comparison with those who were not visited (70 per cent).

Restorative justice has been described as seeking to "balance the concerns of the victim and the community with the need to reintegrate the offender into society" by the Restorative Justice Consortium. Studies show that victim participation is high at 77 per cent with around 60 per cent of victims believing that restorative justice works better than prison, around 40 per cent of victims want to meet their offender following a crime, and between 75 and 95 per cent of victims who choose to participate say it met their needs. [35] Although seemingly successful, such projects are currently applied in an ad hoc manner with few victims attending a restorative justice panel, which is likely to be a result of low public awareness.

Strong investment into restorative justice "could lead not only to higher satisfaction levels among victims of crime, but also to positive results for the offenders engaged in the process". [36] A Restorative Justice Consortium study revealed that reoffending rates were much lower when offenders were involved in restorative justice projects with just 40 per cent of 10 to 17 year olds reoffending within the 12 month period following release compared to 71 per cent of those who had been given a custodial sentence. Research by the Ministry of Justice found restorative justice projects to be 'value for money' with savings of between £8 and £9 for every £1 spent on implementation.

THE AGE OF CRIMINAL RESPONSIBILITY IN ENGLAND AND WALES

In 1993, two ten year old boys, John Venables and Robert Thompson, were convicted of murdering toddler James Bulger. They were detained at Her Majesty's Pleasure in a Local Authority Secure Home and were eventually released on license when they turned 18. Their rehabilitation had been a success, or so it seemed. Nearly ten years on, John Venables has been recalled to prison for breaching the terms of his licence. The Ministry of Justice have not released details of the breach, although the Justice Secretary Jack Straw has confirmed that it is a serious allegation.

The attack on two young boys in Edlington near Doncaster in 2009 inevitably brought comparisons with the Bulger case. A ten and eleven year old boy were convicted of grievous bodily harm with intent, robbery and intentionally causing a child to engage in sexual activity and were given an indeterminate sentence with a minimum term of five years in a Local Authority Secure Children's Home.

As a result of these cases the age of criminal responsibility in England and Wales has been brought into the spotlight. Experts have recommended that the current age of criminal responsibility, 10, be reviewed with the view of raising it to the United Nations recommended minimum of 12 and preferably to the European norm of 14. In Scotland Government Ministers have confirmed that the age of criminal responsibility is being raised from 8 to 12. The Children's Commissioner, Dr Maggie Atkinson, believes England should look to other European countries' methods of dealing with young offenders that are "more therapeutic, more family and community-based and more about reparation than simply locking somebody up". [37] Despite suffering criticism from the UN Committee on the Rights of the Child, the UK Government has no plans to raise the age of criminal responsibility in England and Wales.

The doctrine of doli incapax raised the presumption that a child between the age of ten and fourteen could not form the necessary criminal intent; however the doctrine was abolished by section 34 of the Crime and Disorder Act 1998. Recently it has been suggested that the principle should be re-established, although community sentences should be used in favour of imprisonment for children under the age of 14. [38] 

At the Centre for Crime and Justice Studies at King's College London, director Richard Garside argues that "if people are not considered able to decide about voting, marrying, leaving education, having sex or even getting a tattoo until they are 16 or 18, it does not make sense to hold 10 and 11 year olds criminally responsible". Dr Eileen Vizard, a child psychiatrist with the NSPCC's child offender service, agrees. "Scientific evidence about child development indicates that 10 year olds are not capable of participating fully or fairly in a criminal trial". [39] Criminal proceedings involving children and young people between the ages of 10 and 17 are usually heard in the Youth Court, although certain cases including murder and rape must be heard in the Crown Court due to the serious nature of the offence and due to the fact that the judges have greater powers of sentencing than in the Youth Court.

In other European jurisdictions the criminal age of responsibility varies between 12 and 18. The term appears to have different meanings as the 'official' age of criminal responsibility may not necessarily be the youngest age at which a child can be involved with the justice system, due to being in conflict with the law, as demonstrated below.

In the Netherlands it is 12, 13 in France, 14 in Germany and Italy, 15 in Finland, Denmark, Norway and Sweden, 16 in Spain and Portugal and 18 in Belgium. Although the age of criminal responsibility in Belgium is far higher than in England and Wales, younger children can be dealt with through the criminal justice system even though they are not being given a criminal sanction. Similarly in France, children as young as ten can appear before a judge who can impose a community or education order. (Janes, L 2008)

Experts have described Italy's approach to children and young offenders as a "model of tolerance and non-punitiveness from which England and Wales has much to learn". [40] In Italy judges are given a wide discretion to "pardon children, deem the offence to be irrelevant on the basis that it is trivial, or provide them with alternative options to custody including pre-trial probationary periods". [41] Only around 500 young offenders under the age of 18 are serving a custodial sentence in Italy, compared to around 3,000 in England and Wales at any given time. [42] 

The UN Committee on the Rights of the Child has reported that the Convention and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules) "call for the adoption of a child-orientated system that recognises the child as a subject of fundamental rights, and stresses the need for all actions concerning children to be guided by the best interests of the child as a primary consideration." The Council of Europe has also produced guidelines regarding the most appropriate treatment of children and young offenders. [43] 

CONCLUSION: SHOULD CUSTODIAL SENTENCES FOR YOUNG OFFENDERS BE ABOLISHED?

Having examined the various approaches adopted by other European countries in terms of the age of criminal responsibility and having researched the statistics relating to young offenders serving custodial sentences elsewhere, it does appear that England and Wales are somewhat out of step.

There are undoubtedly certain crimes for which custody is warranted. In such cases it is vital to ensure that the period of detention is being used effectively to prepare the young offender for reintegration into society as well as hopefully returning to employment, education or training. [44] Unfortunately, the evidence (on reoffending, incidence of mental health issues, lack of support to find accommodation and employment on release, etc.) points not only to an abject failure to achieve these aims and objectives together with a resultant loss of public confidence but also to the tremendously high cost of this option. Taxpayers' money should, if at all feasible, be spent elsewhere - in restorative justice, for example, since this appears to better fulfil the needs of the victims of crime, society at large and the young offenders themselves rather than punitive measures which cause even more harm to these often already-damaged individuals. Considerable efforts should be made to raise public awareness of the opportunities which are available (such as the rights of victims to attend restorative justice panels) and the voluntary sector utilised more extensively (to draw on for the recruitment of mentors, etc.).

It is extremely encouraging to observe that, subsequent to the voicing of concerns by so many organisations and individuals, there has been a very significant reduction in the number of children and young people in custody between January 2009 and January 2010 (a drop of 23 per cent) according to the Youth Justice Board's figures. Hopefully, this is not a 'one-off' incidence but is indicative of an intentional reversal in the previous trend and one which will be maintained so that the money released can be made available for more responsible and productive investment.

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