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Swansea Youth Justice Team's response to the consultation regarding draft UN General Comment No. 24: Minimum Age of Criminal Responsibility, January 2019

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This is the response of the Swansea Youth Justice Team to the consultation regarding draft UN General Comment No. 24: Minimum Age of Criminal Responsibility, January 2019
1
Swansea University Youth Justice Group
Response to the Consultation regarding Draft UN General Comment No. 24:
Minimum Age of Criminal Responsibility
January 2019
About the Swansea Youth Justice Group:
Swansea University’s Youth Justice Group is an academic, multi-disciplinary
Research Group based within the Department of Criminology in the Hillary Rodham
Clinton School of Law. This submission, concerning the minimum age of criminal
responsibility has been made by Dr Anthony Charles (Group Co-ordinator), Aaron
Brown and Joseph Janes: all of whom undertake research in the area of youth
justice and children’s rights.
Context:
In England, Wales and Northern Ireland, the minimum age of criminal responsibility
(MACR) is currently 10 years of age. For children in Scotland, it is 8 years (currently
the lowest in Europe)
1
. Yet, the Age of Criminal Responsibility (Scotland) Bill which
is being considered by the Scottish Parliament may soon raise the Scottish MACR to
12 years.
Comments made in this response to the UN’s MACR consultation specifically
concern England and Wales (for which the United Kingdom Parliament, in criminal
justice matters, legislates). Drawing upon available evidence, the Youth Justice
Group concludes that the MACR in England and Wales is currently too low. Such an
opinion is grounded in academic evidence (for instance, Goldson, 2013, Bateman,
2015, Cunneen et al. 2018) and resonates with statements made by the Committee
on the Rights of the Child (for instance, Committee on the Rights of the Child, 2007).
It is unfortunate that successive United Kingdom (UK) governments have resisted
raising the MACR in England and Wales: that this issue is now being revisited
globally is welcomed.
In light of the ongoing impasse concerning the MACR (in spite of repeated political
efforts from figures such as Lord Dholakia), the Swansea Youth Justice Group
believes that debate relating to the MACR in England and Wales, and the potential
for it to be raised, goes beyond simply legal debate. Rather, it has real, detrimental
and deleterious impacts upon children who come into conflict with the law and there
is an urgent need for reform. The Swansea Youth Justice Group especially
welcomes the narrative set out in UN draft General Comment No. 24 (201x), which
would replace General Comment No. 10 (2007), and specifically the objectives of
paragraph 33, which would encourage State Parties to raise the MACR to 14 years
(at least). Reflecting upon protective measures referred to in Paragraph 31 of the
draft General Comment, the Swansea Youth Justice Group believes that raising the
MACR to 14 years in England and Wales and also promoting diversionary, protective
and welfare support provision would be an appropriate and positive course of action.
We particularly believe that such would be appropriate since:
1
Although a number of countries including France and Luxemburg have ‘no stated minimum age’;
see: Sutherland E, E. (2016). Raising the minimum age of criminal responsibility in Scotland: law
reform at last?, Northern Ireland Legal Quarterly, 67, 3, pp. 387-406.
2
The Time is Now for Reform: The MACR in England and Wales
1. In England and Wales, the most recent discernible statistical pattern in relation to
children in conflict with the law has been the stark contraction in numbers of First
Time Entrants; totalling 85 per cent between the years ending March 2007 to
2017 period.
2
Whilst it is difficult to pinpoint the exact overall statistical impact
made by youth diversion polices, over recent years there has undoubtedly been a
swift and deliberate expansion of national and localised youth diversionary
schemes and mechanisms such as early intervention in England and Wales (c.f.
Brown, 2018, Home Office, 2012, Haines et al. 2013, Smith, 2014, Soppitt and
Irving, 2014). Although the rolling out of youth diversionary schemes is welcomed
(as are the provisions of draft paragraph 27), considering existing evidence, the
Swansea Youth Justice Group believes that the most significant, progressive and
positive diversionary policy move that could be made by the UK government
would be to raise the MACR threshold to 14 years in England and Wales.
Arguably, this would realise, more properly, the intention of Section 37 of the
Crime and Disorder Act (1998) in making the prevention of offending by children
the principal aim of the youth justice system. Raising the MACR would enable
children between the ages of ten and fourteen to avoid injurious contact with the
formal youth justice system, mitigate the potential label and stigma that can result
from system contact, by-pass possible ‘toxic mix’ associated with system
engagement and also create space for families, agencies and service providers to
address negative behaviours (Haines and Charles, 2010). It should be noted
though that it is not suggested that negative behaviours by children should be
ignored: rather, and as hinted at (possibly this provision could be strengthened) in
draft General Comment Paragraph 31, support should be provided for such
children.
2. Until 1998, children aged ten until turning fourteen were recognised as doli-
incapax and thus essentially incapable of criminal intent. As such, during trial, this
‘principle’ required rebuttal, with the burden resting with the prosecution to prove
‘beyond reasonable doubt’ that the child knew that what they were doing was
‘absolutely wrong’, rather than say a hoax. The Swansea Youth Justice Group
strongly believes that New Labour’s legislative changes in 1998 which amended
doli-incapax have left children who come into conflict with the law exposed,
vulnerable and without the basic and necessary safeguards and legal protection
that they require (see Bandalli, 1998, Goldson, 2013, Bateman, 2015). In this
context, the Swansea Youth Justice Group supports not only the raising of MACR
to 14, but also, as suggested in paragraph 35 of draft General Comment that this
should be consistently applied, with no lower age being permitted.
3. Arguments centred around ‘maturation’ (Glueck and Glueck, 1937) and ‘growing
out of crime’ (Rutherford, 1986) have a long history within youth justice. Notably,
such arguments were central theoretical pillars underpinning the ways in which
proportionality, diversion and non-interventionism were operated during the 1980s
in England and Wales (Haines and Drakeford, 1998). More recently however,
further evidence (see for example, UK Parliament, 2018) has emerged which has
2
Data obtained from Ministry of Justice and Youth Justice Board (2018). Youth Justice Statistics
2016/17 England and Wales: Supplementary Tables, Ch2 First Time Entrants to the Youth Justice
System. Table 2.7
3
re-emphasised the significance of child-developmental processes in relation to
offending behaviour. Bateman, for example, has stated that:
“The capacity for abstract reasoning matures throughout
adolescence and is significantly underdeveloped in children aged
1113 by comparison with 1415 year-olds, who are, in turn,
outperformed by older teenagers...” (Bateman, 2015, p.36)
As Bateman (2015) implies, and this is a position which with the Swansea Youth
Justice Group concurs, age does indeed impact upon the way that MACR should be
comprehended and the manner in which legal frameworks are constructed.
Reflecting this type of opinion, which resonates with Articles of the UNCRC
concerning child development, the Swansea Youth Justice Group believes that
certainly within the UK, the current MACR of 10 years is problematic because it does
not take full account of the extant evidence, nor the reality of children’s lives.
Alternatively, the proposal, within paragraph 33 of the draft General Comment could
rectify any existing deficiencies, to the benefit of children, their families and the
criminal justice system.
4. The available evidence
3
suggests that the MACR in England and Wales is currently
‘out of step’ with the majority of other European countries; where the average age is
14 years.
4
Reflecting this fact, the United Nations Committee on the Rights of the
Child has repeatedly admonished the UK government for its reluctance to re-
examine the case for raising its threshold.
5
Domestically, such warnings have also
been replicated and reinforced by UK Childrens Commissioners. Given the reality of
the global community and the need for cross-state co-operation and common
standards, the Swansea Youth Justice Group reiterates calls for the UK government
to pursue a progressive and positive course of action and raise the MACR to align
with the stated intentions of the draft General Comment at paragraph 33.
Aligning with a Rights-Based Agenda: Making the MACR Work for Wales
5. Following the commencement of Wales devolutionary settlement at the turn of the
century, a distinctively dragonised’, i.e. Welsh, and rights-focused policy approach
is becoming more visible in Wales. This has been reflected in the emergence of a
series of rights-focused policy stratagems and legislative actions, including:
Extending Entitlement (2002), the Children and Families (Wales) Measure (2010)
and the Rights of Children and Young Persons (Wales) Measure (2011), along with
the creation of the UK’s first Children’s Commissioner. These have been designed
to reflect the principles and provisions of the UNCRC and create policy change.
Specifically, in relation to children in conflict with the law, tailored policy strategies
have been developed in conjunction with the Youth Justice Board (despite Wales
currently not possessing direct legislative competence in the area of criminal
justice), such as the All Wales Youth Offending Strategy (2004) and Children and
3
See: https://www.crin.org/en/home/ages/europe
4
See: http://scyj.org.uk/publication/scyj-briefing-age-of-criminal-responsibility-bill-2017/
5
See: United Nations (2008). Committee on the Rights of the Child, forty-ninth session, Concluding
observations: United Kingdom of Great Britain and Northern Ireland, Paragraph 78.
4
Young People First (2014). Poignantly, policy and strategy in Wales place a key
emphasis on treating children as: children first. Yet, despite these promising rights-
focused ambitions, the Swansea Youth Justice Group notes that the UK Parliament
continues to insist on a MACR of ten years, which arguably undermines this children
first approach. The proposals within draft General Comment 24 could address some
of the problems which have been associated with English and Welsh criminal justice
approaches, and provide new opportunities for welfare and protection-related
activities to prevent future negative behaviours by children. Such would also, in the
context of the Welsh Nation, respect the direction of travel determined by the Welsh
Government and National Assembly for Wales
6
. Notably, in terms of duties placed
upon Welsh Ministers as a result of Section 1 of the Rights of Children and Young
Persons (Wales) Measure (2011), this could yield transformative results for children
living in Wales. Certainly, in the context of Wales, a MACR of 14 year could help the
synchronisation of national social policy and criminal justice policy: with much Welsh
social policy being embedded within the UNCRC, this could have the effect of
preventing the criminogenic effects of the formal youth justice system from
impacting upon children. Further, and realising core aspects of the UNCRC, this
could enable States to consider, design and concentrate support on children in need
of assistance due to negative behaviour and thereby protect them, provide
assistance and promote their positive participation in family and community life.
Response contact: Dr. Anthony Charles, Co-ordinator, Swansea Youth Justice
Group. E-mail: a.d.charles@swansea.ac.uk Telephone: +44 1792 606056
References:
Bandalli, S. (1998) ‘Abolition of the presumption of Doli Incapax and the
Criminalisation of Children’, The Howard Journal 37, 2, pp. 11423.
Bateman, T. (2015) Keeping up (tough) appearances: the age of criminal
responsibility, Criminal Justice Matters, 102, 1, pp. 35-36.
Brown, A. (2018) Q & A: ‘Welsh Youth Diversion’. The Centre for Justice Innovation.
(April 2018). Retrieved from: http://justiceinnovation.org/qa-aaron-brown/
Committee on the Rights of the Child (2007) General Comment No. 10 (2007):
Children’s Rights in Juvenile Justice (44th session, Geneva, 15 January-2 February
2007). Geneva: United Nations.
Cunneen, C., Goldson, B., and Russell, S. (2018) Human rights and youth justice
reform in England and Wales: A systemic analysis. Criminology & Criminal
Justice, 18, 4, pp. 405430.
Glueck, S. and Glueck, E, T. 1937 (1966) Later Criminal Careers. New York: Krause
Reprint Corp.
6
The ongoing Justice Commission being undertaken by the Welsh Government may potentially offer
a key opportunity to reconsider reforming the MACR in Wales (in a manner akin to Scotland).
5
Goldson, B. (2013) Unsafe, unjust and harmful to wider society: grounds for raising
the age of criminal responsibility in England and Wales. Youth Justice, 13, 2, pp.
111-130.
Haines, K. and Drakeford, M. (1998) Young People and Youth Justice. Basingstoke,
Hampshire: MacMillan Press.
Haines, K. and Charles, A. (2010) The Swansea Bureau: Children first, offending
second. Report submitted to Swansea Youth Offending Service. Swansea: Swansea
Youth Offending Service.
Haines, K., Case, S., Davies, K., and Charles, A. (2013) The Swansea Bureau: A
model of diversion from the Youth Justice System. International Journal of Law,
Crime and Justice, 41, pp. 167187.
Home Office (2012) Assessing Young People in Police Custody: An Examination of
the Operation of Triage Schemes. London: Institute for Criminal Policy Research,
Birbeck, University of London.
National Assembly for Wales (2011) Rights of Children and Young Persons (Wales)
Measure. Cardiff: National Assembly for Wales.
National Assembly for Wales (2010) Children and Families (Wales) Measure. Cardiff:
National Assembly for Wales.
National Assembly Policy Unit (2002) Extending Entitlement: Support for 11 to 25
year olds in Wales (Direction and Guidance). Cardiff: National Assembly for Wales.
Rutherford, A. (1986) Growing out of crime: Society and young people in trouble,
Penguin: Harmondsworth.
Smith, R. (2014) Re-inventing diversion. Youth Justice 14, 2, pp. 109121.
Soppitt, S. and Irving, A. (2014) Triage: Line or Nets? Early Intervention and the
Youth Justice System. Safer Communities, 13, 4, pp. 147-160.
UK Parliament (2018) Age of Criminal Responsibility. PostNote, Number 577, June
2018.
Welsh Assembly Government / Youth Justice Board (2004) All Wales Youth
Offending Strategy. Cardiff: Welsh Assembly Government / Youth Justice Board.
Welsh Government / Youth Justice Board (2014) Children and Young People First:
Welsh Government / Youth Justice Board joint strategy to improve services for
young people from Wales at risk of becoming involved in, or in, the youth justice
system. Cardiff: Welsh Government / Youth Justice Board.
ResearchGate has not been able to resolve any citations for this publication.
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Welsh Youth Diversion'. The Centre for Justice Innovation
  • A Brown
Brown, A. (2018) Q & A: 'Welsh Youth Diversion'. The Centre for Justice Innovation. (April 2018). Retrieved from: http://justiceinnovation.org/qa-aaron-brown/ Committee on the Rights of the Child (2007) General Comment No. 10 (2007): Children's Rights in Juvenile Justice (44 th session, Geneva, 15 January-2 February 2007). Geneva: United Nations.
Later Criminal Careers
  • S Glueck
  • E Glueck
Glueck, S. and Glueck, E, T. 1937 (1966) Later Criminal Careers. New York: Krause Reprint Corp.
The Swansea Bureau: Children first, offending second
  • K Haines
  • A Charles
Haines, K. and Charles, A. (2010) The Swansea Bureau: Children first, offending second. Report submitted to Swansea Youth Offending Service. Swansea: Swansea Youth Offending Service.