Introduction

The Youth Justice System(YJS) has a principle aim to “prevent offending by children and young persons”1 as well as reoffending by youths. The system was set in place to ensure that custody for these offenders is safe, secure and addresses the causes of their offending behaviour.2 The Government has put in place policies to encourage roles for youths, such as apprenticeship programmes, to reduce the likelihood of youth offences by keeping them busy. In the year ending March 2016, 88,600 youths aged 10-17 years were arrested (10% of total arrests made, including adult offenders). This indicated a significant 75% fall from the year ending March 2006.3 Currently, in England and Wales, there is a substantive YJS in place, with little welfare involved. It has been suggested that we ought to move from this current system, and create a new 21st-century welfare system with justice to emphasise focus on the needs of youths. This will be discussed further below.

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The current system

When youths are sentenced for criminal activity, they are detained and placed in either; the Young Offenders Institution (YOI), Secure Training Centres or Local Authority Secure Children’s Homes. Several issues have been highlighted relating to the practices used against youths in custody, including strip-searching, segregation and physical techniques.4 These practices illustrate the inability of the current facilities to care for vulnerable children who are sent to these institutions to better their lives and futures. It could be argued that the use of imprisonment does not make a material or emotional impact on the youth offender. They do not understand, nor accept accountability for their actions. The offender is perhaps released on good behaviour and freed into society were the same causes which contributed to his antisocial criminal behaviour in the first place still exist.

 

The number of youths involved with the YJS has dropped considerably. This reduction has been consistent as the years have gone by, thereby suggesting that the current justice system is working. The Ministry of Justice recorded that the number of youths cautioned/convicted in 2015 dropped by 79% from the year 2007.5 Additionally, it was found that the number of first-time entrants into the YJS had dropped by 82% during the same period.6 This may be a direct result of the involvement of the police and youth offending services; as they have begun to deal with minor offending children informally, thus not following the actual process implemented by the current system.7 The police deal with children through avoiding formal proceedings and offering to place them in YOT programmes instead.

 

Regardless of the statistics above, the current system in England and Wales is ineffective for youths. Although the figures indicate a drop in those convicted/cautioned, they do not reflect the number of re-offenders; those who are stuck in the cycle of the YJS. In July 2013 to June 2014, 1200 youth offenders were released from custody. An estimated 67.7% of these youths were proven to have reoffended within a year of release.8 Children may feel they have missed out on major events of their childhood (such as birthdays, summer holidays and so are short of liberty) whilst imprisoned, hence deciding that they have nothing else to lose and so begin to re-offend. They self-identify/become labelled as offenders, which increases the rate of reoffending. 9000 youth offenders were cautioned/convicted/released from custody from the October to December 2015 period. 4000 of these youths reoffended within a year (41.8%) which is an extortionate number and does not reflect well on the current system.9 Evidently, the current system could be better in terms of helping youths by improving their welfare, through making the Government tackle poverty as many youth offenders are from low-income families.10 This would prevent them from offending at first instance.

 

The current YJS is known to intervene with youths by engaging with convicted offenders whilst seeking to rehabilitate and reduce crime.11 However, it could be argued that this intervention should be done at a much earlier stage, as it has been estimated that early intervention to prevent youth from offending could save public services more than £80 million a year.12  Hence, this is why a welfare system would be advantageous for the country and youths themselves. A welfare system would not only reduce the number of youths getting into trouble with the law but also cut down the rate of reoffending. The most effective way to reduce this number (41.8% in 2015)13, and youth crime on a whole, would be to deter young people from getting into trouble in the first place. This would be done by dealing with situations at the outset which may make youths more likely to commit crimes or cause anti-social behaviour, such as tackling poverty or creating preventive initiatives which are sport/hobby based so their time is used up productively.

 

Comparison

England and Wales justice system could be improved by shifting to a welfare system with justice, as suggested. By focusing on justice, punishment and holding youths to account for their offences are put at paramount importance above that of the welfare of the child. This does not help youths at risk, as the current system does nothing more than punish. YOT’s will provide a little bit of guidance and stay in touch to help youths get back on the right track after punishment. This system has not been proven to work, as youths tend to re-offend hence, why the reoffending rate is still high. England and Wales have been linked to having a deteriorating justice system with a low criminal responsibility age (CRA) of 10 years old. Both countries are known to have the lowest CRA within Western Europe, and interestingly, have the highest rates of child imprisonment than any other country in Western Europe. This shows that the current system is ineffective, allowing youths to fall into the trap of the punitive law.

 

Contrastingly, many other countries tend to have welfare systems in place for when youths find themselves in trouble with the law. Their system allows for the focus to be mainly on the child’s needs and well-being, whilst using some elements of justice as a last resort. France has created a strong system revolving around welfare, through placing education and rehabilitation at the forefront of youth justice reforms. Likewise, Belgium has a resilient welfare system in place which is paired with a high minimum CRA of 18 years old. Clearly, this type of system should be in place in England and Wales, as evidence shows that Belgium, France and Scandinavian countries have had low levels of youth crime. In 2002, it was recorded that 0.3% of Croatia and Denmark’s prison population were under the age of 18, and Finland and Sweden were in a similar situation with 0.2%. In comparison, England and Wales had a population of 3.8%.14 It is evident that the lowest percentages of youth imprisonment are in countries with prevailing and robust welfare systems, followed closely by protectionist welfare countries in Europe.15 England and Wales, and other justice prevailing countries, have the highest rates of youth imprisonment as mentioned above, so it should be an incentive for the two countries to shift to a welfare system.

 

Welfare system

Countries which have successfully low custody rates have implemented Article 37.16 This establishes that custody of youths should only be used as a last resort.17 Before custody is used, many welfare based countries provide community/family-based options. This would be a suitable approach for England and Wales to shift to a welfare system as children’s needs take precedence over the crimes they commit or are intending to commit whilst lacking maturity. A welfare system is usually linked with protectionist policies, which contrasts with the practices of a justice system, with treatment being the main focus rather than punishment. Welfare policies are in place for acting in the best interest of the children involved. For example, Scandinavian countries put youths’ needs over their deeds,18 consequently enforcing theories of positivism which are evidently better than punishing youths as the statistics above illustrate.

 

It has been noted that countries which use a welfare system with justice tend to have higher CRA, as they understand that children lack the basic mental capacity to understand the criminal justice system and its consequences of not adhering to it. Although New Zealand and Scotland have low CRA’s of 8 and 10 years (like England and Wales) practically only a few number of youths are charged. This is because New Zealand and Scotland have welfare systems, unlike England and Wales. Their focus is the welfare of the child, rather than punishment and holding the child responsible for their actions. This has been dealt with through many programmes such as the Scottish Children’s Hearing System and New Zealand’s Family Group Conferences.

 

Leading on, the average minimum CRA is 13.5 years old across 90 countries.19 England and Wales sit towards the bottom of the table with a minimum CRA of 10 which is disputed to be too low. During a United Nations convention, it was recommended that both countries should raise the age of criminal responsibility “considerably”.20 It could be said that the minimum age of 10 is a breach of international standards on children’s rights, and does nothing in favour of helping youths. This is evident as Article 3(1) imposes “in all actions concerning children, the best interest of the child shall be of primary consideration”. 21 Indicating that a child’s welfare should be of paramount importance, and is a strong illustration as to why a shift to a welfare system is needed. The current system does not consider the child’s developing mental capacity and so imputes culpability inappropriately. There should be a focus on protecting a young child from their actions caused by a lack of mental capability and not focus on their punishment. Youths are susceptible to peer pressure and have a high propensity for risk-taking as they have a limited undeveloped capacity. It could be suggested that children aged 10 do not adequately understand the concept of the justice system and it would be appropriate to shift to a welfare system whereby emphasis would be placed on protecting the needs of the child by educating them.

 

Many would suggest keeping the CRA at 10 years old, due to the underlying fear that a case similar to James Bulger22 would reoccur. Yet using this one case to determine the operation of the whole YJS is somewhat disproportionate as it affects thousands of youths every day. The convicted in the Bulger case are prime examples as to why we need a strong welfare system. The current system is ineffective at preventing reoffending, and this is evident as Jon Venables was imprisoned again after being caught with indecent material for a second time, since murdering James Bulger.23 The current system is unsuccessful when attempting to help youths. It fails to look after them when they suffer from parental neglect or abuse, thus doing little to deter youths from offending in the first place. A welfare system could benefit by working with the social services for early intervention, thus weeding out and finding potential offenders at an earlier age.

 

Perhaps, if we were to shift to a welfare system with justice, England and Wales could bring back “doli incapax”, which means “incapable of evil”.24 This term illustrated a legal presumption (abolished in 1998) that children under the age of 14 years did not have the capacity to understand the difference between right and wrong, and so were incapable of committing an offence.25 Doli incapax made it difficult for courts to convict and charge youth offenders. By abolishing it, Parliament deemed that all children should be able to understand all crime and its consequences by the age of 10. Abolishment has proved ineffective as more children have been brought into the YJS ever since. Hence, ignoring the mounting body of research that recognizes the value of non-punitive responses for youths.26 It is evident that youths’ welfare should be the top priority. We should be questioning how and why this child has escaped the welfare net, instead of criminalising them. The current system is of little help to youths so we should be focusing on those who are showing insufficient attention to the welfare of youths. The issue of problematic behaviour with youth is a welfare issue and not a criminal justice issue.27

 

A welfare system would benefit youths by engaging and promoting their well-being, making them feel comfortable and less intimidated, whilst facing the punitive system of justice. It is known that youths that are raised in low socio-economic backgrounds are more likely to offend and commit criminal offences. Consequently, they are brought up disadvantaged and are vulnerable in society. This filtered system needs a welfare change which will protect youths from the full extent of the English law, impacting the rest of their lives. Although England and Wales have created cognitive behavioural programmes which are used in custodial institutions, it should be emphasised that early intervention would be better. It is estimated that children in YOI only receive 17 hours of education every week which is much less than the expectation of 30 hours.28 Hence, extra education is needed, to help youths distinguish right from wrong and the consequences if not adhered to, in academic systems and in public areas for those who are unable to attend school. This welfare policy would benefit youths who are unable to access compulsory education valuable to their future.

 

Furthermore, it has been suggested that youths should be sentenced to secured schools in place of prison, to rehabilitate and educate them. Michael Gove stated that “although youth offending is down, recidivism rates are high, and the care and supervision of youths in custody is not good enough”.29 It has been found that 40% of youths in YOI have not been to school since they were aged 14. Following on from this, almost 9 out of 10 of children have been excluded from school at some point in their education.30 Secured schools would allow youths to receive qualifications, behavioural expertise and discipline which is vital for them to possess upon release.

 

Conclusion

Both the YJS and the child welfare system have different approaches when dealing with youths’ needs and behavioural problems. A welfare based system will seek to help those most vulnerable and susceptible to falling into the filtered YJS. Although both systems have similar aims, interventions and responsibilities, it is clear that both systems will influence the lives of youths vastly. England and Wales may look to other counties for solutions to improve their systems; as to the growing reoffending rate, better education and protecting youths. Many of the policies mentioned throughout are a justice system and welfare mix, however, it would benefit youths and the society if the policies were more welfare focussed and the justice element took a back seat. This would allow the children to better equip themselves for society and prevent them from committing future offences, instead of punishing youths and treating them as if they are adult criminals with the full capacity and understanding of the criminal justice system. I agree with Taylor’s statement and believe England and Wales would benefit from a shift to a welfare system with justice. Undoubtedly, the statistics from Scandinavian countries illustrate the strength of a welfare system and its ability to deter young people from getting into trouble with the law by focusing on their wellbeing and needs. The argument for change is convincing; reoffending rates can be reduced, educational attainment and children’s health can be improved. Whichever system is used, there should be a shift in focus from a punitive system filled with punishment and little focus on well-being, to the prevention of offending and finding ways to bring back youths into society without shame and the ability to go about and live a successful life.

1 Crime and Disorder Act 1998, s37(1).

2 ‘New Appointments to Youth Justice Board’ (Ministry of Justice 2013) 1.

3 ‘Youth Justice Statistics Bulletin’ (Youth Justice Board and Ministry of Justice 2017) 5.

4 ‘The Carlile Inquiry’ (The Howard League for Penal Reform 2006) 12.

5 ‘Youth Custody Report: September 2016’ (Ministry of Justice and Youth Justice Board 2016) 1.

6 Ibid 1.

7 Charlie Taylor, ‘Review Of The Youth Justice System In England And Wales’ (Ministry of Justice 2016) 2.

8 ‘Proven Reoffending Statistics Quarterly Bulletin: July 2013 To June 2014’ (Ministry of Justice 2016) 13.

9 ‘Proven Reoffending Statistics Quarterly Bulletin’ (Ministry of Justice 2017) 6.

10 ‘Risk And Protective Factors’ (Youth Justice Board for England and Wales 2005) 7.

11  Marian Liebmann, Restorative Justice: How It Works (Jessica Kingsley Publishers 2007) 181.

12 ‘Youth Justice 2004: A Review Of The Reformed Youth Justice System’ (Audit Commission 2004)

13 ‘Proven Reoffending Statistics Quarterly Bulletin’ (n 10) 6.

14 Neal Hazel, ‘Cross-National Comparison Of Youth Justice’ (Youth Justice Board 2008) 59.

15 Ibid; Belgium 1.1%, France 1.2%

16 United Nations Convention on the Rights of the Child 1989.

17 (n 14) 10.

18 (n 14) 24.

19 (n 14) 31.

20 United Nations, ‘Convention On The Rights Of The Child Observations’ (2008).

21 United Nations (n 16) Article 3(1).

22 Regina v Secretary of State for the Home Department, Ex parte Venables, Regina v Secretary of State for the Home Department, Ex parte Thompson: HL (1997)

23 Fariha Karim, ‘James Bulger Killer Back In Jail For Child Abuse Images’ The Times (2017) 1.

24 Home Office, ‘No More Excuses: New Approach To Tackling Youth Crime In England And Wales’ (Stationery Office Books 1997) 1.

25 Terry McGuinness, ‘Briefing Paper: The Age Of Criminal Responsibility’ (House of Commons Library 2016) 4.

26 Kate Fitz-Gibbon, ‘Protections For Children Before The Law: An Empirical Analysis Of The Age Of Criminal Responsibility, The Abolition Of Doli Incapax And The Merits Of A Developmental Immaturity Defence In England And Wales’ (2016) 402.

27 McGuinness  (n 25) 10.

28 Taylor (n 8) 38.

29 Ministry of Justice and The Rt Hon Michael Gove MP, ‘Review Of The Youth Justice System: An Interim Report Of Emerging Findings From The Review Of The Youth Justice System’ (2016) 1.

30 Taylor (n 8) 38.