I’ve
a confession to make. I usually chuck
away the “ Society Guardian” supplement before I read it. OK now that’s off my
chest, last Wednesday was the exception.
I
was attracted by article by Stuart Dakers called “Poor relations”
Stuart
Dakers is 67 years old. He has spent 16 years as a youth worker, and from the
Guardian article, it’s clear he has considerable experience of the youth
justice system.
He writes of youth justice,
“ The criminal justice system is institutionally combative and dishonest, inconsistent, factional and unfair.” And certainly, the example he gives demonstrates this assertion."
During
the decades I earned my living from the “system” it was difficult to be
totally, or perhaps, even partially objective. Lawyers, especially those
involved in litigation have combativeness hard wired into their genes. I think
I’m now far enough away, I hope, to exercise a more objective view.
Dakers’
piece does not, nor to be fair does it intend to, ask why the system is so.
In England and Wales, though not in Scotland, a change in the youth justice regime was introduced in the 1989 Children Act. The Act established, for the first time, Youth Courts. Thereafter I think we see the decline of the “welfare” model”, a model often associated with change and development of the young person through social and educational intervention rather than punishment. In contrast, we witness the ‘justice model’ gaining the upper hand. That model assumes that children and young people (above a certain age) should be held accountable before the law for their actions, the degree of culpability should be assessed and punishment apportioned in accordance with the seriousness of the offending behaviour. For this reason the child or young person must be accorded full rights to due process to ensure that state powers are predictable and determinate. Enter the lawyers.
Although there have been efforts to divert young offenders from the criminal justice system, they have largely piecemeal and the result of promises by governments to process more young people through the system. The fewer reaching the courts mean, or ought to mean, the quicker they are dealt with.
The
other feature of our law that has added to the combative nature of the youth
court is the significant reduction in the age at which children can be
prosecuted.
In
June last year, Priscilla Anderson wrote an insightful piece including this:
“Anyone aged 10 or older who then breaks these rules can be prosecuted and may be fined. Britain now locks up more children aged 10 plus than anywhere else in Europe.
In 1998, English law not only abolished protections in court for children aged 10 to 13, but also the ancient doli incapax safeguard, under which the prosecution had to prove that children under 10 understood that they had done wrong. The UK already had the lowest doli incapax ages in Europe. This term is often mistranslated as "incapable of knowing right from wrong", ignoring the fact that very young children are deeply concerned about people being kind and fair. Doli incapax really means "incapable of evil" - i.e. the malicious relish in causing extreme harm to others. Graffiti and litter are hardly tokens of evil. The problem here arises when adults can't see a difference between behaviour that is right or wrong, on the one hand, or irritating and inconvenient to them.”
In
addition, more and more young kids are being hauled before, often brutal,
magistrates who are being invited to impose, and usually do impose, anti-social
behaviour orders-asbos- for trivial offences. More and more are thus being
swept into the criminal justice system. And once an asbo has been granted the
law now gives greater powers to “name and shame” the recipient- an invitation
that is usually taken up with relish by the media.
New
Labour is always talking about rebalancing our legal system. It’s about time
they moved the fulcrum back towards the welfare model.
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