How Does The Criminal Justice System Accommodate Young Offenders?
In the golden ages it was believed that a child should be seen as a person and not as an object of concern however over time the treatment of children has been more enlightened.
The Child Savers organisation played a major part in the change in treatment of juveniles under the justice system. Their greatest accomplishment was the creation of a juvenile court in Chicago 1899. The court had two principles and they were formed on the basis that “juveniles were not ready to be held accountable for their actions” and “that they were not fully developed and could rehabilitate easier than adults.”
The United Nations convention on the rights of the child (UNCRC) was ratified by the United Kingdom in 1991. They expressed concerns on the use of custody for young offenders, the low age of criminal responsibility, and the lack of opportunities for children and young people to express views.
The current law states that anyone under the age of 18 must be tried in the Magistrates Court. The trial takes place in the Youth Court and has an informal procedure from which the general public and jury are excluded. However if a child or young person is charged with murder, manslaughter or an offence punishable by an adult with fourteen or more years’ imprisonment they will be tried in the Crown Court before a judge.
The standards regarding the minimum age of criminal responsibility are set in the “Beijing Rules”. Rule 4.1 states that
“In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”
The age of criminal responsibility differs widely according to history and culture and can range from 7 to 18 according to the political, social and economic arrangements of the particular state. In England and Wales the age of criminal responsibility is 10 but in Scotland it is 8, there has been proposals to raise it to 12 as the Children and Young Persons Act 1993 states that it shall no longer be presumed that a child under the age of 10 can be guilty of an offence.
Children between 10-14 will be treated equally as responsible as adults as the Crime and Disorder Act abolished the presumption that a child between those ages is incapable of committing an offence. This has been criticised as it was recommended in 1995 that the age of criminal responsibility should be raised however not only has the age not been raised but has effectively been lowered by the abolition of the presumption of doli incapax for 10 to 14 year olds. Therefore the age of criminal responsibility in Scotland remained at 8 years. The U.K government believes the age of 10 is reasonable and that from the age of 10 most children know the difference between right and wrong. There have been no current proposals to change the age of criminal responsibility in England and Wales although Scotland is proposing to raise the age to 12.
As for children in custody in Europe, the imprison rates are the highest amongst the rest in the world. Currently there are around 3,000 children in custody in England and Wales and 80% are held in prisons. The rest are held in privately run secure training centres or held in local authority secure children’s homes. There have also been many reports of children being treated poorly in custody. In 2005 Lord Carlile chaired an investigation after a 15 year old boy died in a secure training centre while being restrained by three staff. It was reported that their treatment “in any other circumstances, would trigger a child protection investigation and could even result in criminal charges.”
In court, children alleged or accused of infringement of the law are entitled to a fair trial which allows the child to effectively participate in the trial. A child needs to comprehend the charges and possible consequences and penalties in order to direct the legal representative and to challenge witnesses so they can provide an account of events and make appropriate decisions about evidence, testimony and the measures to be imposed.
Article 14 of the Beijing Rules states that the proceedings should be conducted in an atmosphere of understanding to allow the child to participate and to express himself/herself freely. Taking into account the child’s age and maturity may also require modified courtroom procedures and practices. An example of this took place in the case of T v UK and V v UK (2000). In the 2 months preceding the trial each applicant was taken by social workers to visit the courtroom and was introduced to trial procedures and personnel by way of a “child witness pack” containing books and games.
Children may suffer from post-traumatic stress disorder require immediate counselling but many children continued to be denied therapy prior to trial due to fear that the child’s evidence will be ‘contaminated’. Cross-examination may make a child feel it is being accused of telling lies this can be have serious longer term effects on the child’s mental health.
Some young defendants accused of committing serious crimes may be very young and very immature when standing trial in the Crown Court. The purpose of such trial is to determine guilt and decide the appropriate sentence if the young defendant pleads guilty or is convicted. The trial process should not itself expose the young defendant to avoidable intimidation, humiliation or distress. This is called the overriding principle. All possible steps should be taken to assist the young defendant to understand and participate in the proceedings. The ordinary trial process should, so far as necessary, be adapted to meet those ends.
There are different special measures that take place to ensure that the child receives a fair trial. There may be screens placed around the witness box available for all vulnerable and intimidated witnesses to shield the witness from the defendant. The evidence can be given by a live link which enables the witness to give evidence during the trial from outside the court through a televised link to the court room. The Judges and barristers will remove their wigs and gowns which are normally worn in the Crown court to make the room appear less formal. Sometimes evidence is given in private which means that members of the public are not allowed into the courtroom when evidence is given or the evidence will be videotaped before the trial so that the witness need not give their initial evidence in person, but they do have to attend court to be cross examined on what they have said. They will be given aids to communication to enable the witness to give evidence through a communicator or interpreter. Lastly there will be an examination of the witness through an intermediary who may be appointed by the court to assist the witness to give their evidence in court.
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