Human Rights Issues Relating To Youth Crime Criminology Essay

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In seeking to critically evaluate the remit of human rights issues relating to youth crime it is necessary to first show an understanding of as to why it may be argued that the recognition of human rights is so important to children and young people's welfare in the youth justice system by way of introduction in the first chapter with a view to then putting this discussion into its given context. The second chapter of this study then looks to consider the nature of the youth justice system and evaluate this understanding by comparing and contrasting this with the adult justice system to then further this discussion by understanding as to how they deal with crime. Then, with a view to furthering this discussion, the third chapter of this study will consider the ongoing development of the system of youth justice and the way in which it works so as to then decide as to how this may be improved for the purpose of better recognising human rights issues deemed central to the resolution of issues of youth crime. Such human rights issues have been principally taken to include the right to liberty, the right to a fair trial and the right to a private family life under Articles 5, 6 and 8 of the European Convention on Human Rights (ECHR) 1950 (implemented domestically in the UK via the Human Rights Act 1998). The fourth chapter of this study then goes on to compare and contrast the way in which the respective jurisdictions of England, Scotland and Northern Ireland within the UK look to deal with the recognition of human rights issues pertaining to youth crime with a view to determining as to whether there is, in fact, a differing or universal approach to these matters for improving the regulation of the system. Finally, in the fifth chapter this study will look to conclude with a summary of the key points derived from this discussion with regard to the critical evaluation of human rights issues relating to youth crime that have been undertaken herein and as to how they may be better resolved in the future through the ongoing development of the system to allow for a more effective recognition of human rights whilst also achieving the recognition of justice/.

Chapter One - Why is the recognition of human rights so important to children and young people's welfare in the UK's youth justice system?

In seeking to consider why the recognition of human rights is so important to children and young people's welfare in the youth justice system, a great deal of significance has come to be attached to a child's welfare whenever they have dealings with the youth justice system because their being labelled as as criminal may have important repercussions for their future as adults. [1] Nevertheless, it is still to be appreciated that during the last decade in particular a series of unrelated disturbances throughout the UK have raised the profile of youth offending as a significant issue to be dealt with since the media has looked to focus upon 'joyriding', 'ram-raiding', 'bail bandits' and 'persistent young offenders' to give the impression of a country completely overrun by juvenile delinquents. [2] As a result, the then Labour Prime Minister Tony Blair emphasised the importance of taking a hard line on youth crime after widespread media coverage of these events along with the heinous killing of Jamie Bulger by the two 10-year-old boys, Robert Thompson and Jon Venables. [3] .

However, the importance of the 'welfare principle' within the system of youth justice was most effectively emphasised and reinforced as part of the recognition of the United Nations Convention on the Rights of the Child (UNCRC) 1989. [4] Article 1 of the UNCRC 1989 looks to define 'children' and establish uniform standards for their protection around the world and sought to guarantee that every child's rights are recognised in relation to all aspects of their live. [5] In addition, internationally the principle was established under Article 3 of the UNCRC 1989 of looking to always be seen to be acting in the "best interests of the child as a primary consideration" in all actions concerning a particular child is fundamental. [6] With this in mind, the UNCRC 1989 then also serves to reiterate the importance of acting in a child's 'best interests' numerous times and also implied that it reflects the standard with which compliance with the requirements of the UNCRC 1989 itself will then be measured in the circumstances. [7] However, this principle does not ensure a given child's 'best interests' will always prevail in every case before the national courts as it arises to be dealt with by the state and the authorities that look to bring to bear their policies on children and young people. [8] The reality is that Article 3 serves to guarantee a given child's interests and welfare will be given due weight in all circumstances as well as with regard to all decisions affecting children's interests. [9] 

Then, in an effort to be able to further this understanding and recognition of children's rights, Article 40 of the UNCRC 1989 has served to provide all members of the United Nations (UN) need to make a variety of dispositions available including care, guidance and supervision orders, counselling, foster care, and vocational and educational training programs as alternatives to being institutionalised in prison facilities. [10] The UNCR 1989 was then supported by the earlier enactment of the UN Standard Minimum Rules for the Administration of Juvenile Justice ('the Beijing Rules') 1985 along with the previous implementation of the UN Guidelines for the Prevention of Juvenile Delinquency 1990 that proceeded it with a view to preventing delinquency within any given country to help juveniles that would otherwise be deprived of their liberty contrary to the law of the state. [11] Therefore, it is arguable the UN's legislative enactments served to establish the standards for national legal systems like the UK's to follow as a member of the UN.

Chapter Two - What is the nature of the youth justice system and how does it compare with the adult justice system in dealing with crime?

With a view to determining the nature of the youth justice system and how it compares with the adult justice system in the context of dealing with human rights issues as and when they arise, to say problems regarding finding a balance between 'control' and 'protection' are solely experienced in relation to young offenders would be something of a misnomer regarding the criminal justice system. The somewhat bleak reality is that a sense of 'control' has developed throughout the domestic criminal justice system as a reflection of a more 'intolerant' approach to crime emanating from the authorities domestically. [12] Such an understanding is also a mark of successive governments' need to 'protect the innocent' and 'pursue the guilty' [13] to 'secure the freedoms' a civilised society enjoys. [14] However, the problem is this has led to authoritarian 'initiatives' being legitimised through varied legislation so, since 1997, at least 3,000 new criminal offences have been created whilst, at a minimum, [15] recognised criminal behaviour amongst the young has been found to cost UK taxpayers at least £3.4 billion annually [16] since some form of anti-social behaviour occurs every two seconds. [17] 

On this basis, it little wonder Tony Blair had previously seen fit to boast about the effectiveness of the prison system. [18] However, whilst the number of people in prison and the length of their sentences may serve to show society criminality is being dealt with by the authorities, the authorities are still not actually dealing with crime itself or acting in the best interests of those subject to the system of justice and that crime is being prevented. [19] This effectively means the criminal justice system is confused by a process that is 'too controlling' and 'under-protective' [20] arguably only further exacerbated by the fact that, when referring to the prison population (per 100,000 of the overall population), the UK has the highest number of people incarcerated in the European Union (EU) so spending on prisons has also increased by more than a third in the last decade. [21] Therefore, it would seem that the laws already in place that have sought to improve the system of criminal justice are still not considered either "clear or tough enough" to prevent crime [22] it has been estimated the total domestic prison population will be around 110,000 by 2013. [23] 

Effectively the ongoing changes to the criminal justice system in the UK are arguably the culmination of almost twenty years of changes in this area since the early 1990s. In 1993 the then Prime Minister John Major proclaimed the need for 'society' to 'condemn more' and 'understand less' when it came to dealing with criminal offenders at all levels from children to adults. [24] Unfortunately, however, as has already been recognised, both the adult and child prison populations have multiplied dramatically as a mark of policy makers apparent need for 'control' to regulate and prevent criminal activity. [25] From out of the system of mass imprisonment in the US successive Labour governments have imposed a similar process of 'hyper-incarceration' contrary to the recognition and/or appreciation of young offenders rights [26] rather than actually helping the criminals themselves. [27] However, even with our prison systems being way too overcrowded already, policies of 'control' still seems to be the key focus of government policies adopted regarding young offenders to prevent them embarking on a criminal career. This is because greater use of penal custody for children is made under the recourse of the English legal system than in most other industrialised democratic countries [28] serving to place more pressure on a system already under significant strain whilst also failing to recognise young offenders rights. For example, ongoing developments in policy in recent years have seen a significant increase in 15 to 17-year-old boys being remanded or sentenced to an extended period of imprisonment. [29] 

The problem is that such policies do not really recognise the rights of young offenders so the Labour government looked to stress the importance of implementing an 'evidence based policy' since the system of criminal justice have been driven more by ideology than anything else. [30] However, developments in this regard are not solely meant to be about policies of youth justice but also prevention and early intervention so that programs including 'Sure Start' and the 'Children's Fund' have been restructured away from their original goals to meet newly established political objectives regarding crime prevention. [31] It has long been argued children living in the poorest communities in the UK all too often basically 'run wild' in their communities and become "inordinately physical and aggressive in their relationship with other children" because they lack sufficient education and discipline to act in a civilised manner. [32] since they are most commonly accustomed to abject poverty, welfare neglect, and abuse. [33] 

A considerable amount of importance has long been attached to a child's welfare because the same standards of justice cannot be applied to children as is applied to adults since they may not be considered to have sufficient understanding awareness of the processes that they are dealt with under. As a result, a number of legislative codifications were implemented. For example under section 44 of the Children & Young Persons Act (CAYPA) 1933 that all courts dealing with child and young person "shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training". Moreover, the CAYPA 1933 was then further supplemented by the fact that also then recognised under section 37 of the Criminal Justice Act 1991 that "It shall be the principle aim of the youth justice system to prevent offending (including re-offending) by children and young people". [34] 

Furthermore, more recently, section 9(1) of the Criminal Justice & Immigration Act 2008 has inserted a new section 142A in the Criminal Justice Act (CJA) 2003 under the specific 'catch-all' sub-heading 'Purposes etc. of sentencing: offenders under 18'. Therefore, section 142A(1) of the CJA 2003 then also served to recognise that - "(a) the principal aim of the youth justice system (which is to prevent offending (or re-offending) by persons aged under 18: see section 37(1) of the Crime & Disorder Act (CDA) 1998); (b) in accordance with section 44 of the Children and Young Persons Act 1933, the welfare of the offender; and (c) the purposes of sentencing mentioned in subsection (3) (so far as it is not required to do so by paragraph (a))". As a result, it was also recognised that section 142A(3) of the CJA 2003 provides that the purpose of sentencing those aged 10-17 considered 'children' and 'young people' in the UK is - "(a) the punishment of offenders; (b) the reform and rehabilitation of offenders; (c) the protection of the public; and (d) the making of reparation by offenders to persons affected by their offences". [35] 

These provisions established through legislation implemented under English law served to emphasise the importance of the principle of recognising what is in a child's 'best interests' within the youth justice system to be balanced against the interests of the public pertaining to the possibility of re-offending. [36] However, it is also to be appreciated that the 'welfare principle' is considered much weaker than that of 'paramountcy' that is contained within section 1(1) of the Children Act 1989 that generally provides for the importance of "(a) the upbringing of a child; or (b) the administration of a child's property or the application of any income arising from it, the child's welfare shall be the court's paramount consideration". As a result, it has come to be understood that other interests are only of real concern where they effect the recognition of the welfare of a given child in the circumstances of a particular case. [37] 

Chapter Three - How has the system of youth justice developed and how may it be improved for the purpose of better recognising and resolving human rights issues as and when they arise?

In looking to consider how the system of youth justice has developed and how may it be improved for the purpose of better recognising and resolving human rights issues as and when they arise, a number of procedures have been established to monitor risk along with new forms of regulation and control in community structures to regulate and prevent youth crime. [38] By way of illustration, the 'juvenile secure estate' children and young people are detained within revolves around their own separate but interrelated 'penal domains'. [39] Secure Children's Homes (SCHs) have been put in place and are normally managed by Social Services Departments through the Departments of Health and for Education & Skills to receive children aged I0 to 17 under civil and criminal legislation like the Youth Justice & Criminal Evidence Act 1999 primarily defined by a focus on 'welfare'. In addition Secure Training Centres (STCs) have been implemented in the form of private jails owned and managed by global security corporations under contract to the Home Office to hold children aged 12 to 17 who have been remanded and/or sentenced to penal custody. [40] 

Moreover, Young Offender Institutions (YOIs) have been the subject of significant amounts of media coverage for many years since they hold 85% of the total population of child prisoners domestically. [41] YOIs are prisons managed by the Prison Service itself and accommodate prisoners aged 15 to 17 and those aged 18 to 20 on separate 'wings' with specific 'prison rules' governing them distinctly similar to those found in adult prisons. [42] This serves as a reflection of the fact the names of "prisons for children and young people ... are intended to show that these are not prisons, but places of good intent, where ... young people's lives will be corrected by caring people". [43] The reason for this is policy makers have looked to demonstrate penal regimes are meant to be represented as 'safe and effective' strategies for 'managing' the behaviour of young offenders. [44] 

However, aside from the overly punitive process of the criminal justice system regarding young offenders, a wide range of authoritative national and international bodies have also repeatedly raised profound concerns regarding young offenders treatment domestically. [45] But the size of the penal institutions themselves is particularly significant because one of the most significant factors involved with establishing a safe environment within which young offenders can be detained is 'size'. [46] Such an understanding is considered highly significant because, whilst SCHs and STCs are purposefully small with a high staff-child ratio, the Prison Service may hold children in 'unacceptably high numbers' that are then likely to be anything but safe. [47] As a result, there are already "significant barriers to the Prison Service being able to provide a safe and positive environment for children" in the interests of their human rights so that promises to reduce the size of these institutions are arguably further than ever from being realised. [48] 

In addition, the Children's Rights Alliance has come to the conclusion the conditions and treatment children experience in YOIs are little more than the 'antithesis' of what children actually need to avoid becoming repeat offenders into adulthood. [49] The reality is that the treatment of young offenders within the English legal system is currently a somewhat sad state of affairs because of how easily the authorities look to resort to punishment and 'control' in particular over and above any other policy goals. This is because young offenders all too often are forced to endure widespread neglect regarding both their physical and mental health contrary to their needs as people. Within the current system numerous acts to the detriment of their well-being are all too often perpetrated against them including - (i) general ill-treatment; (ii) discrimination; (iii) invasions of privacy; (iv) cell-based confinement; and (v) inadequate educational and rehabilitative provision. [50] 

Despite the commonly held view boys from poor backgrounds are most common criminals, girls and young women are the ones who are actually considered particularly ill served by YOIs despite the apparently positive intentions being generally marred by poor standards and a lack of clarity. [51] That such a view has arisen is derived from the fact that, despite repeated assurances from government ministers all girls will be removed from the care of YOIs as young offenders, this change in policy is still yet to develop. Therefore, the fact that no change has yet taken place is perhaps made only all the more significant by the fact Her Majesty's Chief Inspector of Prisons has raised some notable concerns since "many [girls] are held in prisons which are predominantly for adult women" [52] when it has long been 'utterly corrosive'. [53] Moreover, with circumstances currently prevailing as they are, the Council of Europe's Commissioner for Human Rights could only conclude "the prison service is failing in its duty of care towards juvenile inmates". [54] 

Such a view is reflective of Jerome Miller's view that, whilst "Reformers come and reformers go. State institutions carry on" so that "no matter what money, staff, and programs are pumped into them", "the players go on producing failure". [55] With this in mind, it is arguable penal custody for children can never be considered to be a neutral experience whatever efforts are made to try and improve it. This is because everyday operational realities are most commonly underpinned by a culture of bullying and abuse by those running the establishment itself and their fellow prisoners. [56] That such a view could arise is supported by the fact that, in July 2006, Gerry Sutcliffe (ME Under-Secretary of State for Justice) revealed levels of recorded self-harm had risen by 4,000% since 1997 with 2,414 reported incidents of self-injury or attempted suicide by child prisoners domestically between 2000 and 2005 [57] so the concept of 'safer custody' or the 'caring prison' remain as something of a contradiction. [58] Therefore, it is not only the rights of the victims but also the suspects and then the prisoners that must be protected. But there is also a need to be tough on crime and protecting due process, as well as the rights of the defendants against those of the victims.

Greater powers have also been conferred upon the police by government policy makers, whilst also ensuring the need for due process as part of the system of justice continues to be protected and ensured. [59] Police tactics have been questioned as the courts' abilities to treat suspects impartially and in keeping with the right to a fair trial under Article 6(1) of the Human Rights Act (HRA) 1998. Such a need for effective regulation of the system of justice is especially significant for young offenders because they are particularly vulnerable so there is a particular need for their effective process from the date of their arrest. [60] By way of illustration, the number of days from arrest until young offenders are sentenced decreased between 1999 and 2004 by an average of thirty-four days during this period, whilst the number of cases increased by about seven thousand and further efficiency is expected through new rules and procedures by the judiciary. [61] 

The Crime & Disorder Act (CDA) 1998 was primarily focussed upon the criminal and disorderly behaviour of children under the age of 18 so it is actually primarily focussed upon the regulation and criminalisation of children and young people's negative behaviour. [62] However, its wide-ranging content was rolled out over three years to reduce crime, improve community safety, promote multi-agency approaches, and increase public confidence regarding the way young offenders are dealt with. Under the CDA 1998, there is a duty upon local authorities to develop a crime strategy to guarantee the availability of 'appropriate' youth justice services in terms of assessment and rehabilitation, bail support, demand placements, reports, and community sentence and post-custody supervisions. [63] The CDA 1998 also introduced to the English legal system a national Youth Justice Board to establish multi-agency Youth Offending Teams (YOTs) to annually review Youth Justice Plans to make them more focussed and certain regarding the objectives they seek to fulfil. [64] Moreover, the CDA 1998 also recognised young offenders' welfare by abolishing the presumption of doli incapax and allowed courts to draw inferences from the failure of an accused child to give evidence or refuse to answer questions at trial to reflect the UK's submission to the United Nations (UN) Committee "it is not unjust or unreasonable to assume that a child aged 10 or older can understand the difference between serious wrong and simple naughtiness". [65] 

Hearsay evidence can be admitted - although the standard of proof when weighing the evidence applies to criminal cases. [66] Moreover, the civil court may also impose prohibitions beyond the kind of behaviour proved to it including - (a) not entering the whole of a specified housing estate; (b) not entering or remaining on any shop premises when asked to leave by a member of staff; and (c) not engaging in behaviour likely to be threatening, abusive or insulting to others, with any breach amounting to a criminal offence that is then punishable with imprisonment. [67] At the same time, however, to punish and rehabilitate young offenders without having to prison, Anti-Social Behaviour Orders (ASBOs) emphasise the importance of a child or young person''s welfare without ostracising them from society as prison does. [68] ASBOs rely upon a system of civil injunctions that may be applied for against anyone over the age of 10 for anti-social behaviour. [69] Although an ASBO may not carry the same stigma with it as prison, however, the 'responsible community' is still a blunt instrument for controlling and punishing young people. [70] Therefore, ASBOs are still arguably criminalising behaviour every bit as much as criminal proceedings to the detriment of young offenders' future prospects since the potential for applying ASBOs with 'real energy' has not been lost on the judiciary as a punitive measure. [71] 

For example, in 2003, a Manchester district judge lifted reporting restrictions on a 17-year-old served with a 10-year ASBO in addition to an 18-month detention and training order throughout the country. [72] As a result, despite the disproportionate nature of the penalty, a Manchester council representative remained unequivocal in recognising "It stands as a stark warning - behave or risk a long ban" as a deterrent for other young people. [73] This means the standard of proof for implementing an ASBO should be as high as the criminal standard [74] because ASBOs still often affect an individual's right to liberty under Article 5 of the HRA 1998 when they are, for example, restricted from going into certain areas at certain times. [75] However, the 'autonomous meaning' of "charged with a criminal offence" under the HRA 1998 at Article 6(2) means the European Court of Human Rights (ECtHR) could develop an 'anti-subversion device' to prevent national legislatures from evading the extra safeguards for criminal proceedings simply by considering them to actually be civil in practice. [76] 

As a result, the use of civil orders (like ASBOs) for dealing with the criminal behaviour of young offenders may still fall foul of the recognition of their well-being under the HRA 1998 that enacted the European Convention on Human Rights (ECHR) 1950 into UK law - although matters in this regard have not been helped by the ambiguous nature of Article 6's wording. For example, Article 6(2) of the HRA 1998 recognised the right to a fair trial only arises in criminal proceedings, whilst ASBOs are based in civil law. But then, in the decision in R (on the application of R) v. Durham Constabulary, [77] it has since been recognised Article 6 of the HRA 1998 is not engaged by the procedure for reprimands and warnings. This is because the House of Lords held in this case that the giving of a warning to a 15-year-old boy about his admitted behaviour of indecent assaults was not a criminal charge under Article 6 of the HRA 1998 so its protection did not apply. Moreover, in R (S) v. Waltham Forest Youth Court [78] it was held impossible to add words to section 16 of the Youth Justice & Criminal Evidence Act (YJCEA) 1999 to allow a young defendant to give evidence via a television link where he was afraid. The reason for this is that section 16 of the Act established when a court could give protection to those giving evidence by reading an extra provision into the section so the courts would be legislating and not interpreting and the presumption of innocence could be maintained. [79] Therefore, when the authorities are looking to bring about a prosecution, once they opt for a civil procedure there is no longer a recourse to Article 6 because there is no longer a criminal element to proceedings. [80] As a result, it was arguably all too easy for government policy makers to circumvent the domestic focus upon the presumption of innocence [81] by promoting legislation to provide for the imposition of civil orders firmly rooted in the government's desire to protect society from risk and prevent a criminal element forming in the young. [82] 

Article 6 of the HRA 1998 is of particular importance for children because they do not usually have the emotional awareness or experience to cope with the legal process. For example, in SC v. United Kingdom [83] there had been a violation of Article 6(1) of the ECHR 1950 when a child of 11 was tried in an adult court domestically and sentenced to two and a half year's detention for attempted robbery. As a result, on appeal to the ECtHR it was accepted evidence that, given the boy's low intellect, he was incapable of fully understanding the proceedings and their consequences contrary to Article 6 of the ECHR 1950 so a young person should be tried in a specialist tribunal to adapt to their needs. [84] It is thus perhaps little wonder Article 6 has generated more case law in the ECtHR than any other Article because the right to a fair trial is so fundamental so a narrow or restrictive interpretation would be at odds with the ECHR 1950. [85] However, whilst the ECtHR has chosen to focus on court proceedings, particular incidents may have a decisive effect because the ECtHR does not pass on whether the court made errors of fact or law in practice. [86] 

There is also a need to appreciate problems in this regard have only been exacerbated by the fact that mentally disordered children are arguably being unfairly targeted with the use of ASBOs contrary to recognition of their welfare. For example, in the South West a 15-year-old boy with Asperger's Syndrome was given an ASBO saying he was not to stare over his neighbour's fence and, even though the boy concerned had no previous criminal convictions, would face a custodial sentence if he breached the order. [87] This particular boy's case was then taken on by the British Institute for Brain Injured Children (BIBIC) that unearthed similar abuses all around the country despite the fact Asperger's Syndrome is characterised by obsessional behaviour and repetitive routines may appear disturbing to others since they find it difficult to read emotions and their impact on others. [88] Arguably matters have not been helped by the fact 'anti-social behaviour' under the Anti-Social Behaviour Act 2003 has proved too vague since "behaviour that causes or is likely to cause harassment, alarm or distress" could describe many autistic people to be arguably discriminatory under the Disability Discrimination Act 2005 (amended Disability Discrimination Act 1995) and contrary to Articles 5 and 6 of the HRA 1998 by failing to account for the rights of those who have mental health problems when they are being punished for their behaviour.