Criminalising Children

8 November 2017

Last week Sir James Munby called for the CPS to review its charging policy for children to divert them away from the criminal courts. Speaking at a lecture held by the Howard League for Penal Reform he suggested that the family courts could be provided with an enhanced jurisdiction to enable them to deal with some of the criminal cases currently dealt with by the Youth Court (the Youth Court currently deals with criminal cases involving young people aged 10 to 17. Cases involving more serious offences or involving an adult co-defendant will generally be dealt with in the Crown Court instead).

The CPS responded to the comments by explaining that the Code for Crown Prosecutors instructs Prosecutors to consider the welfare of the child when looking at whether or not to charge with factors such as age and maturity, seriousness of the offence, previous offending and mental health taken into account. The Code states: Prosecutors must bear in mind in all cases involving youths that the United Kingdom is a signatory to the United Nations 1989 Convention on the Rights of the Child and the United Nations 1985 Standard Minimum Rules for the Administration of Juvenile Justice. In addition, prosecutors must have regard to the principal aim of the youth justice system which is to prevent offending by children and young people. Prosecutors must consider the interests of the youth when deciding whether it is in the public interest to prosecute.

Unfortunately, there is little transparency as to how the CPS guidance works in practice and much less on the approach taken by the police. From the moment a young person is arrested they are largely in limbo and awaiting a decision from the police and CPS. Lack of police resources may mean that the investigation takes a long time; uncertainty and stigma attached to an arrest and may mean the young person is expelled from school during this time and will struggle to find appropriate education. The introduction of a limit of the pre-charge bail period to 28 days means that young people are now “released under investigation” for increasingly long periods and investigations can seem to drift. For an adult, a year under investigation is extremely difficult but for a young person of 10 or 15, a year can feel like a lifetime.

This proposal comes at the same time as reports that police forces in England and Wales are investigating 17 “underage sexting” offences a day. The police have said that they are risk-assessing cases to ensure they are not unnecessarily stigmatising children and leaving them with a criminal record but is this enough? In most cases sexting may best be dealt with as a child protection issue rather than something for which children are criminalised. It may be that this is an area which could be diverted to a family court setting and proposals for this should be considered seriously. Certainly any steps which avoid the unnecessary criminalisation of children are to be welcomed.

The experience of children at the outset of a criminal investigation is also under consideration. The Home Office recently published its Concordat on children in custody which sets out the duties that police forces and local authorities have when working with children in custody. 24 police forces and 87 local authorities have signed up but, of course, whether the Concordat will be adhered to remains to be seen. Its aim is to prevent the detention of children in police stations following charge. The Concordat in principal represents a positive and constructive approach to youth justice involving collaboration of the various agencies involved. However, it is worth noting that section 38(6) Police and Criminal Evidence Act 1984 already requires the police to look for alternatives to keeping children in custody post-charge. Failings to follow this legal duty are recognised in the Concordat and one of its aims is to change what had become a tick-box exercise for the police and Local Authorities when making efforts to avoid detaining young people in custody.

The fact that a Concordat was necessary, when the law already in place is clear, demonstrates how little attention is paid to young people who find themselves in custody. We hope that the Concordat will mark a culture shift in how young people are treated by the criminal justice system but a greater structural shift is needed to improve the legal systems in place to ensure that the best interests of children and the prevention of future offending are at the centre of the criminal justice system in cases involving children.

Sir James Munby’s speech highlights the complexity of the legal systems within which many children and young people find themselves. This is also a time when cuts to funding for the police, CPS, courts and local authorities are having serious consequences. It may be that some incidents which might otherwise be criminal should be dealt with in the family courts. At the very least it should be considered seriously as an option. As funding for this important area decreases, creative approaches to youth justice are even more important to ensure that the best interests of the child are always the primary consideration. 

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