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Democracies must ensure that all generations of citizens to come along, must identify with the common good and become responsible and engaged members of the society. The youth justice system plays a major role in the achievement of this statement. In many countries across the world, this subject has attracted increasing levels of attention, as the behaviour of young people is exposed to moralistic scrutiny and political concern. In general, the main goal of the youth justice system should be to prevent offending by children and this should be achieved with the assistance of all persons and bodies carrying out functions in relation to it.
The system each country follows is different from one another. Many contemporary youth justice jurisdictions appear to give more emphasis on energetic formation and practise development, being more interventionist following a punitive direction, whereas other jurisdictions turn to a restorative direction that focuses on the needs of victims and offenders, instead of the need to satisfy the abstract principles of law or the need of the community to exact punishment. Whatever the direction each country uses, it must always be in accordance to the principle of proportionality.
In this paper, we are about to analyse the essential principles of good practice in the field of youth justice and see whether youth justice policy in England and Wales leads to unacceptable breaches of young people's human rights . Moreover, we will examine the way in which the youth justice is controlled internationally by the UN Convention on Human Rights of the Child 1989, and later make a comparison to the current position of the England and Wales system with the Human Rights Act 1998 and Children Act 1989 to find out whether it complies to the international standards. The last point to be examined is to consider some practical proposals in order to make communities safer and help young people to participate and fully integrate in them more fully without having their rights breached.
UN Convention on Human Rights the child 1989:
It is the most important tool as far as children's' rights are concerned, ratified in 190 countries. The UK ratified the UN Convention on the Rights of Child 1989 (UNCRC) in 1991 and it came into force in 1992 obligating the UK to ensure and respect children's rights contained in the Convention. Even though UK is a signatory to this Convention, it is not part of the domestic law. However, it is binding on the UK under international law and there is an obligation to comply with its provisions and principles. However as it still remains outside domestic legislation, there is no direct sanction for not doing so, and no direct means for enforcement, or challenging in the UK courts. As Abramson observes, the implementation of juvenile justice in 141 countries notes a widespread lack of 'sympathetic understanding' necessary for compliance with the UNCRC  .
The Convention has established a near global consensus that all children have rights as to personal development, participation etc, but most importantly that the best interests of the child should be of primary consideration  . In addition to that, it provides rights for children as well as obligations on adults and government. Moreover, it notes that children should be treated differently than from adults in order to promote their dignity and that they should participate in all proceedings having to do with them  . In the case of rights that are not absolute; such as protection from torture, those that are limited or qualified are always subject to the principle of proportionality, and should only be infringed to the extent that is extremely necessary  . Furthermore, in1990, the UN guidelines for the Prevention of Juvenile Delinquency added that youth justice policy should avoid criminalising children for their minor misdemeanours. At last, the CRC requires the states to submit reports periodically to the Committee with details as far as implementation progress and compliance are concerned.
Human Rights Act 1998:
The Human Rights Act 1998 which came into force on October 2nd 2000 embodying and giving effect to the rights contained in the European Convention on Human Rights, contains provisions concerning courts and other public authorities to act in such a way in order to comply with the Convention. Rights as to 'fair trial' and 'privacy and family life' are some of the rights included in the Convention. For example, as far as Art 6 is concerned to a fair trial, juveniles must get equal treatment in courts as adults and decide according to what is in the best interests of the child. Moreover, the ECHR does not include any rights specifically drawn for children  . Nevertheless, it is one of the most important pieces of legislation and practices that the UK has at the current time.
Children Act 1989:
The Act is concerned mostly with children that are 'looked after' or accommodated by local authorities. But most importantly, it reinforces the principle that the child's welfare is to be the paramount consideration  . It also contains various duties and responsibilities of the social services when dealing with children. The general philosophy of the Act is based on the belief that children are better looked after by their family, but in occasions where abuse or harm is caused by failures of the family, the law must intervene. Some rights included in the Act are the duty to provide advice and assistance to care leavers  , to accommodate detained and remanded children  etc.
Proportionality as a 'key' concept:
Before analysing the current UK youth justice system, it is better to remind that all measures and decisions taken by the government, the courts etc, must be subject to the principle of proportionality. That is to keep a balance between external factors that may lead to the use of punitive actions and those to the use of the best interests of the child.
The current UK youth justice system.
According to the UN Committee, there have been some positive developments and improvements in children's lives since the UK reported in 2002. Some include improvement in access to childcare, extension to children's centre programmes etc. However there are areas that need improvement in order to promote and safeguard children's best interests and to make sure that that is a priority in policy-making in the UK.
In the context of youth justice, UK has been highly criticised and even been characterised as getting worse and worse as time passes. There has been considerable ambiguity of commitment to rights and a significant level of infringement and outright denial. Areas such as the low age of criminal responsibility and the control of anti-social behaviour orders are some areas that need to be reviewed. In the same time, international statistical comparisons show that England and Wales have an increasing rate as far as sentencing of young people, locked up in prison under 18 whereas many European countries exist quite happily with little or no recourse to penal custody at all  . Since statistics provide us only with a basic idea, we are about to examine some key areas in contemporary international justice system in order to assess whether the current UK youth justice system protects children's rights and whether there is still space for improvement.
Areas of UK youth Justice system, comparison to international standards and proposals for reform.
Age of criminal responsibility:
One of the major problems in the UK youth justice system is the low age for criminal responsibility. In fact, the UK countries stand out as having some of the lowest ages of criminal responsibility in the European Union. In England and Wales proceedings against children over the age of 10 who are alleged to have offended are dealt with in the criminal courts. The Committee and other children's charities urge for a substantial change. More particularly, the Committee in its guidance note on juvenile justice made it clear that the setting of age below 12 is unacceptable and that this could result in the breach of other human rights of those behaving inappropriately. Furthermore, the widespread introduction of Youth Inclusion and Support Panels in 2004, makes it possible to catch children under the age of 8 if they are considered 'at risk' when measured against a list of risk factors.
Even with the pressure, the government insists on not complying but defending the low age of responsibility. After the tragic happening of James Bulger case in Liverpool in 1993, the government finds the age limit quite justifiable. In addition to that, the government referred to the abolition of the protection afforded to young people by the ancient doctrine of doli incapax. The government justifies its attitude on the fact that children of the age of 10-14 have the ability to differentiate between bad behaviour and serious wrongdoing, and that challenging this through formal criminal justice proceedings would not be in the interest of justice. Moreover it suggests that commencing criminal responsibility from the age of 10 helps children develop a sense of personal responsibility for their behaviour. However, intentions are said to be rehabilitative rather than punitive and prosecution is always seen as a last resort.
The Committee on the Rights of the Child states that the average age of criminal responsibility across Europe is between 14 and 16, and in some states reaches the age of 18 such as Belgium and Luxemburg. Moreover, the European Social Rights Committee in 2005 declared the UK to be in breach of Art 17 of the European Social Charter because the age is manifestly low. Statistically, in the past 15 years the number of children under the age of 18 in prison has more than doubled. Since 2002 rates of under 18 years old has risen by 27%  . For this reason, the UK Commissioner recommends that the Government considerably increase the age of criminal responsibility to bring in line with the rest of Europe where the average age of criminal responsibility is 14 or 15.
Anti-social behaviour orders:
Anti-social behaviour orders (ASBOs) have been criticised as being the ultimate weapon to be used in order to protect frightened communities and to reclaim Britain's streets. Ambassadors have been appointed by the government for the encouragement of police forces and local authorities to apply more and more of these orders. By then, use and further legislation has been introduced that has extended powers to the youth court. The Crime & Disorder Act 1998, which introduced ASBOs for the first time, gave an explanation of the legal meaning of ASBOs in s1 of the Act:
''in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household''
It has been shown that ASBOs are effective. According to the Home Office, it helps to rebuilt communities, and to get communities involved in their own protection. Even though, the case of anti-social behaviour orders has been quite controversial and attracted much criticism.
Firstly, ASBOs as civil orders may pose problems. For example, as was held in the case of McCann & Others  , ASBOs is little different to a traditional injunction as it consists of a civil order with potential criminal sanctions for breach. This is much unfortunate since it can lead civil orders to criminal penalties and even something in combination of the two. The ASBOs can serve as a short cut to obtaining a criminal conviction without the need to actually prove the original crime  . Moreover, bringing civil orders into the mainstream policing is that including criminal act in ASBOs, could guarantee a sentence of up to 5 years for criminal activity, something that could have happened with a lesser sentence if committed by someone else. Perhaps the reason for offering this civil alternative is to make it easier for police to obtain ASBOs as a short cut to conviction.
According to Home Office statistics in June 2004, 1,425 of ASBOs recorded had been handed out to those in the ages of 10-17 and some 1,479 to 18 years old and over. Moreover, the number of under 18s in prison in England and Wales has not dipped since the introduction of the ASBO's and a high rate of those imprisoned is due to breaching their ASBO's. Furthermore, the rate of ASBOs leading to custodial sentences has been raised in the past couple of months as NAPO shows  .
Another issue that needs to be examined is the policy of 'naming and shaming' youths. Government and police state that since people are concerned on what happens in their communities, those disrupting it deserve to be punished. And this involves the naming and shaming of them by the media on television, newspapers etc. However, this policy may go a lot further than what is necessary to a point that may breach young people's rights. The paradox in this case is that at the same time the youth justice system tries to help to rehabilitate those of its members who have become alienated, by naming and shaming them helps in achieving the exact opposite pushing them to the margins. Therefore, the abuse of the system increases as statistics showed above.
No matter the statistics and the criticism, the court recently approved the policy of naming and shaming on ASBOs including youths under the age of 16. In addition to that, there is encouragement to distribute leaflets including names, photographs and even addresses and there are no more restrictions on reporting criminal proceedings where they relate to the imposition of ASBOs. Moreover, the courts are allowed not to use their remaining power to protect the privacy of these children. It is therefore a matter of fact that people will relate them to guilt and keep distance and bad attitude against them. The Committee highlighted how this intolerance against them may often be the underlying cause of further breach of their rights.
The Committee is concerned with the restrictions that ASBOs as civil orders pose on youths as many activities can be caught and restricted. One example is the gathering of children which may lead into criminal offence in the case of their breach to what is known as 'dispersal orders'. The police have the authority to intervene and disperse groups of youths when it is believed it is necessary to do so. This is problematic since it has been suggested that it is discriminatory against minority ethnic population, and it also leaves negative images of young people and stark messages about their status and how they are regarded by adults. Moreover, it can institutionalise antagonistic relations between police and youths and normal activities such as chilling may become redefined as wilful challenges to authorities and therefore sociability becomes criminalised.
All the above made people have the idea of youths as dangerous, problematic and unwanted. The situation came to introduce the 'Mosquito' device, a device which disperses youths regardless of their motivation or behaviour in an impersonal and indiscriminate way. As Shami Chakrabarti, Liberty's Director states, ''the Mosquito has no place in a country that values its children and seeks to instil them with dignity and respect.'' Commercial marketing of the device describes it as 'the most effective tool in the fight against anti-social behaviour' and there is currently no law preventing its use. Nevertheless, the device has been enthusiastically embraced by the police and retailers and the Government supports saying that they are not banned and there are no plans to do so.
From the above it is obvious that ASBOs infringe rights of young people as the 'mosquito' device and dispersal orders restrict freedom of movement and assembly and are contrary to children's development. In addition to that, the Committee comments that anti-social behaviour orders breach the rights to privacy of children, health and safety. In particular the DNA samples of youths taken has risen to over one third of million considering that a huge rate of them has not involved any subsequent charge of even been found guilty of an offence. Moreover, minimum imprisonment on ASBOs is two years, not a reasonable duration considering the harm and change a child may suffer during it.
The Committee condemned the use of ASBOs, dispersal zones and the use of ''Mosquito devices' stating that the UK has not taken sufficient measures to protect children especially those subject to ASBOs from negative media representation and public 'naming and shaming'. The Committee comes to the conclusion that ASBOs regime is a quick fix solution but this will not fix the situation and will definitely not prevent that behaviour happening in the future. Anti-social behaviour does not come out of nothing and the government should look to deeper social problems that cause it first and then to decide whether punishing is the right solution. Problems such as unemployment, alcohol and drug misuse can contribute as causes of such behaviour but cannot be used as excuses. It is controversial whether ASBOs are appropriately used as the answer for serious social problems. As the situation now is, the Committee calls for an independent review on ASBOs and the compatibility of their use in accordance to welfare legislation and human rights requirements and whether a child's behaviour may change after its their imposition. Moreover, it suggests that a local authority should only apply to the court where assessment of need of that child has been carried out and where those needs are not met by the authorities of their family, the ASBO disposal should not be available to the court.
When the state decides to take away the liberty of a person and put him in custody, it is taken for granted that it will take full responsibility to protect him and his human rights. This applies to all individuals but due attention should be given to children due to their vulnerability since there are children in custody who are of very low age.
Some of these children commit serious and violent crimes and detention is requires for the protection of the public. Changes in legislation especially the enactment of Detention and Training Order in 2000 has made it easier for courts to sentence 10 to 14 years old children in custody. More particularly, the last decade there has been an unwarranted rise in the entrance of children between those ages, most of which have not committed serious offences. The 95% of those incarcerated in 2006/07 concerned minor offences such as burglaries, and about 82% has not committed any violent offence against another person. Barnando's  analysis demonstrates that there has not been any significant increase in serious crimes committed by children, and that those ending up in custody are those who mostly fail by our welfare and education system.
Firstly, we need to emphasise that Art 37 of the UNCRC declares that custody should be used 'only as a measure of last resort and for the shortest appropriate time'. Although the Committee is of the opinion that custodial sentences are at a level that indicates that the last resort principle is not complied with, the government responds by saying that custody is only available where seriousness or persistence of offending makes its use unavoidable or there is a high risk of harm to the public.
Moreover, concerns relation to child treatment during custody is being declared, in particular the overuse of physical control and restraint on children. Although the Government has committed to reduce restraints  , no further steps were taken. The review of restraint  does not respond to all of the Committees recommendations that 'restraint should only be used as a last resort exclusively to prevent harm to the child or others and that all methods of physical techniques to be abolished. It has been found that the restraint policy is in breach of Art 8 and Art 3 ECHR and that the review was based on false assumptions. Also, conditions as to quality and quantity of food and weekend programmes were not satisfied. In education, more staff is required since due to the big amount of children, it is considered insufficient. Moreover, disquiets have caused the issue of the 30 deaths of children while in custody since 1990. Child Death Overview Panels have the responsibility to review the death of each child and to make it public. Such behaviour breaches the rights of children as to life, survival and development.
Lastly, it is proved that custody does not rehabilitate most of the children since 3 out 4 reoffend within a year of release.  Moreover, the experience in custody may be detrimental as statistics speak of failure, levels of harm within training secure centres and children alienating more than before.
For these reasons the Government must review the situation and take measures. Firstly, detention must be used as a last resort and this to be made a statutory principle  . Furthermore, the court when dealing with such cases always to act in proportionality to the seriousness of the offence and not to forget that the best interests of the child is top priority. Also, the Committee has suggested that right to education in custody to be put on a statutory footing an order for children to find it easier to reintegrate in the future. Moreover, more qualified staff is needed to deal with violent situations for the minimum use of force. Barnando proposes that a change is sentencing must be made so that children under 15 not to be sent in custody unless they are charged with serious crimes. Moreover it proposes that local authorities should bear all costs for children in custody so that there is a strong incentive for investment in preventative services  , contributing in better outcomes for children and society.
To sum up, the UK youth justice system has a lot of improvements to make in order to ensure that the rights of young people are fully protected and secured. The best interests' principle should be paramount consideration for Government, courts and local authorities, and better safeguards should be provided. It has been shown that a desire to deliver punishment is superior to the welfare of children. This is unfortunate since children in trouble with the law are children first; they must be treated as such and afforded the same rights as other children  . The Committee's report criticised badly the Youth Justice System in England and Wales stating that its record is poor in the implementation of and compliance with the UNUCRC and that insufficient actions and measures have been taken on the previous recommendations from the Committee with the result that deterioration occurred in many areas. In my opinion, the Government before enacting laws should better look at deeper social problems that might cause this situation and not try to solve wider problems by restricting and breaching human rights of young people. Moreover, knowledge of the UNCRC must be expanded across the UK for better knowledge of children's rights.