The Impact Of Human Rights In Youngsters Criminology Essay

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'England and Wales lock up more young people than any other country in Europe, four times than that in France.... 160 times that in Norway, Sweden and Finland'. Therefore, this must have an impact on the human rights of young people. Youth justice policy in England and Wales includes measures such as, the enforcement of ASBO's, use of detention centres and custodial sentences; in order to deal with youth offending. One problem posed by the question is the interpretation of young. There is no universal consensus as to what age range is defined under young/youth, but my focus will be 10-18 year olds.

The terms 'unacceptable breaches' imply that youths rights are being infringed, according to the UNCRC [2] and the ECHR [3] . In England and Wales, the government has not enshrined the UNCRC into law domestic law thus there is a lack of accountability. This allows more breaches to occur as there is no sanction for the government. However, human rights are universal fundamental rights that all humans are entitled to, especially youths.

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It can be argued that unacceptable breaches occur when policies implemented 'fail to adopt a best interest approach for the child'. Breaches include the use of mosquito devices, deployment of ASBO's, concerns regarding issues of restraint, strip searches and solitary confinement in custody and detention centres. The age of criminal responsibility being too low also leads to the breach of human rights.

There is no denying that breaches do occur but we need to ask why do these breaches occur? Is it the result of inadequate policies, untrained staff, and lack of resources and facilities or the need of welfare based approach rather than the criminal justice system? It is essential to consider the fact, youth's interests are in conflict with the rest of society, so breaches become necessary but are they justified? Finally, Policy suggestions for future improvement need to be adapted in order to limit breaches in the future and safeguard the interests of young people.

Main:

It is evident that Youth justice policy in England and Wales does lead to unacceptable breaches of young people's human rights in the following ways:

The age of criminal responsibility is too low:

In England and Wales the age of criminal responsibility is ten which is deemed to be too low. 'In most other countries, the age of criminal responsibility and age of consent tally.'( see appendix one 'you can't buy a hamster, but you can be tried as an adult and appendix 8, table 1) .This is in conflict with article 1 the right to childhood. It is not fair to hold a youth responsible to the same extent as an adult. How can the same law and punishment apply to a youth and an adult? This policy clearly does not protect the best interest of young people, thus breaches the youth's human rights. [4] Youths are treated as having the same criminal intent and maturity as an adult when the court decides on guilt or innocence. However, as neuroscience proves children do not have the same maturity, understanding and awareness of responsibility as adults.

Advances in neuroscience show structural and functional differences between adults and youths which affect decision making capacity. The brain of youths is under developed, which leads to poor impulse control. If for example the child is being punished for murder he would be tried by adult courts who usually deal with adults. However, youths individual needs would be neglected, the child would not have the level of understanding and maturity needed in order to convey them in court; therefore it would not be a fair trial. [5] This can be linked to the murder of James Bulger, where his murderers were too young to be tried for murder because they could not understand the consequences of their actions. (See appendix two) This highlights responsibility and understanding increases with age, so if we criminalise a child at ten they will not understand or rehabilitate from their mistake.

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However, this is not a breach because the governments view is that a child aged ten has a basic moral understanding between 'serious wrong and simple naughtiness.. .' This helps them recognise and accept responsibility for their actions. The government 'believe that commencing criminal responsibility from the age of 10 helps children to develop a sense of personal responsibility for their behaviour..'. [6] Therefore, as Goldson, [7] suggests the government deploys social control 'through notions such as child protection and nipping crime in the bud.' [8] They see this as the perfect age to deter youths, catching them young to prevent future offending. The government justifies the age being low in order to protect the youths when in fact it ironically breaches the youth's rights.

An alternative policy suggestion is, that we cannot just have a solid age impediment of ten. The level of age should be measured against individual maturity. This may cause delays in the criminal justice system but in the long run it will help youths. It will set a standard and improve the current system whilst safeguarding the rights of youths.

The use of Anti-social behaviour orders (ASBO's) to control youth criminality:

The use of ASBO's to socially control young people, results in unacceptable breaches of young people's human right, because of right to private and family life. [9] Due to the ease of which ASBO's are given and the increase in the amount of ASBOS which are issued ( see appendix three, it shows the huge increase in use of ASBOS to curtail criminality and see appendix 7 table 1) there is no evidence to show that ASBO's are working because of rise in youth criminality. If a breach of an ASBO occurs it '...can lead directly to a prison sentence even when the original offence was non-imprison able.' [10] The UNCRC is worried that the welfare and impact of such policy on the youths future and quality of life thus development is affected. Employment prospects and education prospects could be affected therefore leading to an adult criminal.

Furthermore, 'The serious organised crime and police act 2005 removed legal safeguards protecting the anonymity of children who breach the terms of their ASBO. They can now be publicly named and shamed.' This directly contravenes article 40 of the UNCRC, which guarantees privacy at all stages of criminal proceedings.' [11] The use of naming and shaming youths (see appendix four) once they have an ASBO is an evident breach of human rights. [12] It also breaches the best interest principle for the young person. The youth is not safe but made more vulnerable and could be targeted and led to more criminality, it stops the youth from reintegrating into society.

However, the government do not see the use of ASBO's as a breach of the youth's rights. They see it as a deterrent for the youth not to commit crime. (see appendix 7, table 2, ASBO's do not deter youths they just breach the ASBO and end up in detention) It is a safety measure for the community thus society to which the youth belongs, to alert them and make them feel assured the problem is being tackled by reducing the threat of harm. It can work to bring an improvement to the youth a method of making the young person realise.(see appendix five shows a youth who beat his ASBO, it was cancelled due to improved behaviour) However, balancing such political tactics against the freedom of our youths liberty is questionable.

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ASBO's have been criticised as being 'without strong and principled justification.' [13] (See appendix six 'demonising young people') This is because it is wrong to criminalise a youth for an offence which was not imprisonable in the first place. In 2002 Home Office [14] data confirmed that 60% of ASBO recipients were found in court to have "medical mitigating factors," including mental illnesses, addiction problems and learning disabilities. ASBO's do not address deep rooted problems such as these, it just criminalises them.

Policy suggestions for use of ASBO's are the need to address why the youth is committing such behaviour. It could be a possibility that the youth is from an impoverished background and needs social and welfare to help. Rehabilitation and involvement of the youth in working towards a brighter future could deter the youth; there would be no need for criminal sanctions. Working with social services, parents and schools can help the youth through mentoring schemes and reintegrating the youth into community thus society.

The use of detention and custody:

There is a clear breach of young people's human rights because of the use of methods such as strip and search, restraint and solitary confinement. Such measures lead to abuse of the children which in turn infringes article 3 [15] and article 37 [16] .

It is evident' the institutions of incarceration...are characterised by appalling conditions, over-crowding, brutality, suicide and self-harm.... draws younger children into contact with the youth justice system and escalates them up the sentencing ladder and into custody..' [17] This policy not only breaches the young people's human rights, it also has a negative impact on their future, moving them towards future criminality. Barnardos, [18] argue it is not fair to put children in custody it should be last resort. Many of those in custody did not even commit a serious crime; most of them were neither violent nor dangerous. This highlights that many youths are not being put in custody for the right reasons; we can't just incarcerate them because there is no other alternative. For example, 22% of those in custody were so for breach of ASBOS. 35% of them did not even meet the custody threshold. 80% of them reoffended within year of release. [19] 

The Carlyle inquiry revealed how child prisoners were required to submit to full strip search during their reception to prison. 'This meant that one of the very first experiences for a child going into a prison was to be asked to strip and reveal their body to an unknown adult.' [20] These strip searches are dehumanising, humiliating and taunting youths. As 'statistics from one young offender institution alone reveal that 3,379 strip searches were undertaken at reception from January 2004 to June 2005(Carlyle 2006). This 'perpetuates misery, insecurity and fear' Goldson 2002. [21] An account from a child highlights "... Loads of them - at least 10…they restrain you...Someone's got your arm and head down… it makes you want to struggle...it hurts," such inhuman treatment is evidently a breach of youths rights.

Moreover,' The damage, harm and death of child prisoners in England and Wales- institutional child abuse- raises pressing questions that can only be satisfactorily addressed by transparent accountability and rigorous inquiry.' [22] This will also eliminate and tackle breaches of human rights. As Goldson, [23] suggests thus the 'every child matters' mentality of the government is thus a lie, if every step of the way and if the roots of the youth justice policy are built upon breaching the rights of a child. Breach in this context can be interpreted as restricting infringing the rights of the young.

However, the government in England and Wales do not see this as a breach. Detention and custody are used to deter youths from future crime and set an example to others. They need some kind of punishment thus law in order for society to function. It reduces the threats posed to wider society and eliminates their fears as it deters rehabilitates and reforms the youths.

In order to implement change, rather than breaching the human rights of these youths by imprisoning them, we need to develop a youth justice policy, which focuses on the long term interests and developmental needs of these troubled youths. 'Informal action within the community would open up space for appropriate intervention of vulnerable children rather than stigmatising and incarcerating them.' [24] All that is needed is for children to be treated as children and not as adults this can only be achieved through adapting into the current system a 'rights based welfare approach.' For example, Sweden, the main reason for the success of their youth policies is the age for criminal responsibility is 15 and the primary responsibility of youths is placed in the hands of the social services. The role of social services seems far more rewarding and successful in comparison to the criminal justice system in UK. This social welfare concern works both with children and their families to resolve their social problems rather than imposing a criminal sanction on a youth who has no understanding.

To safeguard youth's rights, policies should include, 'Proportionality, protection, review, transparency and accountability can be built into the professional practice, as safeguards against net widening.' [25] This would eliminate the current failing. It would be more effective and would lead to more progress. An individual approach for every child is difficult to achieve but it is not impossible but all circumstances affecting the child need to be understood and tackled on an individual basis because every child is different and it is this difference which matters the most.

Use of mosquito devices:

The implementation and failure to stop the use of mosquito devices in order to deploy youths away from public areas is a clear breach of the youth's human rights. The 'mosquito can be seen as a disproportionate response, rendered even more unjustifiable by virtue of the fact that there are no official safeguards in place regulating its deployment..' [26] The use of such devices infringes the freedom of assembly, [27] non discrimination [28] and the right to protection. [29] The use of this policy to reduce youth crime is not effective because youths will just move on to another area, or engage in other crimes. By segregating youths we are pushing the youths out, to conform to retreatist and non conformist criminal subcultures which are rejected by mainstream society.

The government do not think that this policy leads to unacceptable breaches of young people's rights because it is an alternative to ASBO's and detention. On the one hand, it safeguards the interests of society, offers public safety makes them feel safe from youth congregation and youth gangs but on the other hand infringes the rights of youths. The home secretary Alan Johnson rejected calls to ban the mosquito on question time on the 8th of February 2010 [30] . He described the mosquito as very helpful in dispersing young people and had no plans of regulating its use. You could argue however that the mosquito can only be heard from close range and those affected can easily walk away but why should young people be forced to move on from a public space if they are not causing harm this infringes article 11 of the youth's right to freedom of assembly. [31] 

An alternative suggestion to this policy is to address the underlying issues of youth's problems through welfare and social policies. If the government could provide youths with an alternative place where they could hang out or take part in recreational facilities then it could keep them off the streets and thus deter them from crime. Youths could be behaving the way they are to escape from abusive homes or deprived homes and the streets could be the only places they are safe. If forced away through such measures then the youths could become more vengeful thus leading to more crime.

The policies enforced are 'measures restricting freedom of movement and assembly are contrary to children's development ...' [32] The Mosquito device is contrary to rights of all children thus is a clear infringement of their rights. It is 'marketed commercially for discouraging young people from vicinity by emitting a harsh electronic sound that is inaudible to the adult ear.' [33] Not only does it affect, youths, adolescents but also babies and infants. It is clear as Nacro 2008, [34] highlight no other social group would not tolerate being targeted with such a device so why should children? There are currently no law regulating or preventing their use. Therefore, allowing such devices to be open to abuse.

Conclusion:

Without doubt it has been proven that youth justice policy in England and Wales leads to unacceptable breaches of young people's human rights. It is clear that '... tough on crime policies, negative media images of identifiable groups of children, over use of penal custody... lack of accountability... conditions that facilitate violence against children in the justice system... are intrinsic features of the contemporary justice terrain in England and Wales..' [35] It is ironic that the question posed above is one of youth justice policy because of the deployment of justice when basic rights of children are being infringed every step of the way. All policies implemented so far breach young people's human rights and thus more youths end up in detention.( see appendix 8) Every young person deserves to has his her rights protected, especially by a system which preaches 'justice' when in fact it is the only threat to young people's freedom thus liberty.

It is also evident that '... respect for children's human rights is selective and arguably discriminatory..' [36] It has been established that breaches of young people's rights exist from the foundations of the youth justice policy. If rights are breached in order to protect the public then to some extent they are more tolerable than for example rights in regard to the freedom, development and safety of the youth in question. For example abuse of youths in custody which leads to death is unacceptable across the board. We cannot argue that youths should not be criminalised but as Hammerburg rightly states, 'it is important to make a distinction between responsibility and criminalisation.' [37] Due to the lack of 'innovative and effective community sanctions' breaches occur but if the intention of punishing the child is to establish responsibility and reintegrate the youth into society then breaches would not occur. For example, rather than using the process of a criminal sanction an example is that used in Slovenia where the youth who has offended is referred to a mediator.

The whole youth justice system, breaches rights of young people. In order for Youth justice policy to be successful in deterring youths from criminality and safeguarding their rights and interests, they need to adopt policy suggestions. These are, that all youth justice policy needs to base itself on the best interest thus welfare of the child. This can be done through ensuring there is no discrimination, protection of privacy exists and the punishment awarded is proportional to the crime. The only way of achieving this would be to divert youths away from the criminal justice system and dealing with them through community or welfare based agencies. Community alternatives should also be sought in relation to detention being last resort for the young person as their liberty is at risk.

Furthermore, Policies of punishment and retribution should be replaced by rehabilitation and restoration. Each policy needs to interpreted and applied to the young person's individual needs ensuring that if rights were to be infringed it would be qualified rights only based on the risk the individual youth posed. 'Such a rights based framework could help to ensure that policies were... more consistent and would help to insulate the youth justice system.' [38] Respecting children's right through welfare based approach is the only way of reducing future criminality of youths and this can only be achieved through legislative change.

There needs to be greater support, follow up, training of staff, regular checks of institutions, asking the youths for feedback and getting youths more involved, making them into a success not into future adult criminals. There needs to be greater involvement with support services, schools and parents in order to help youths and their families. We need to develop a system that can be adapted to cater for youths individual needs and only then can the youth justice policy be successful in preventing youth crime with educational and restorative objectives.

Therefore, "Contemporary policy attempts to try all approaches at the same time.... Not only does this deter the search for alternatives to criminal justice approaches...but it ensures that more 'devils' are drawn into a wider net ..." [39] In this sense human rights are affected because the current youth justice policy is trying to focus on too many things, that it neglects and forgets to protect the basics such as human rights. Therefore, the current policy is flawed and drags more and more youth into the loop. In order for youth justice be to be successful it '... needs to be rethought as a means to support and protect children, not criminalize and punish them...youth commonly seen as times when patterns for later life are being set, so young offenders become hardened criminals if there is no intervention,' [40] Or protection of their rights.