This article will examine the key youth rights underpinned by the United Nation’s Convention on the Rights of the Child (UNCRC) related to crime and youth justice. It will explore the effectiveness of the UK government’s youth justice system in protecting and upholding these rights. Lastly, it will identify and consider the key issues arising from the implementation and denial of rights for those young people what become involved with the criminal justice system.
In 2005, Maud de Boer-Buquicchio, Deputy Secretary General, Council of Europe stated that “Children are not mini-persons with mini-rights, mini-feelings and mini-human dignity. They are vulnerable human beings with full rights which require more, not less protection [than adults]”(cited in NCB, 2008, p.5). It therefore sought to confirm that children’s rights have equal status to adults’ rights. However, children and young people often struggle to find information about their rights (see Jones and Walker, 2011; Montgomery. 2007; NCB 2008). We need to make sure that children and young people, and the adults who work on their behalf, are familiar with human rights legislation.
UNCRC and Children’s Rights
The UNCRC is an international agreement between 191 member states of the United Nations. There are over 40 Articles. In 1991 the UK Government ratified the UN Convention on the Rights of the Child – agreeing to meet the minimum standards in the charter, essentially commitment to ensure that minimum standards within the charter are protected and upheld.
There is a rage of UK legislation that enacts the principles and rights , these include the Human Rights Act 1998 which places a duty on all public authorities to follow the rights set out in the European Convention on Human Rights. The 1989 Children Act includes key statutory requirements for children looked after, those involved with criminal justice etc. It also sets out the best interests of the child shall be a primary consideration (UNCRC Article 3) as well as ensuring that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence (UNCRC Article 16). In addition there is a range of anti-discrimination and equality laws, for instance, 2010 Equality Act; Disability Discrimination Act (DDA) 1995 and 2006; Sex Discrimination Act (as amended) 1975; Race Relations Act 1976 (as amended) .
When focusing on children and criminal justice there are two core UNCRC articles:
- Article 37 – The treatment and respect for children and young people are set out in Article 37 which includes rights not to be subjected to torture, inhuman or degrading treatment (Article 37a); underpins the principle of arrest and imprisonment as a last resort (Article 37b); in dealing with children in ways that take into account their age (Article 37c); and every child deprived of his or her liberty must have prompt legal support and speedy decision making. (Article 37 d)
- Article 40 – Sets out the responsibility of governments to recognise that in dealing with every child arrested, cautioned or charged the law enforcement process “takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”. In achieving this the governments must establish and wherever possible measures for dealing with such children without resorting to judicial proceedings (Article 40c).
UK Children’s Commissioners Report (2008) raised concerns with children’s rights and criminal justice stating that the UK was continuing with some ‘serious violations’ of the Convention, including excessive criminalisation; failure to distinguish adequately between adult and child offenders and the promotion and a general punitive ethos of ‘offender first, child second’ (p.32). Similarly, Muncie (2009) suggests that a punitive mentalité is evident in many western societies which have shifted juvenile justice agendas away from protecting ‘best interests’ towards a policy of criminalisation and retribution. Such a mentalité is indicative of the views of Jack Straw, former Secretary of State for Justice who when asked what he could do to reduce the trend of demonising children and young people, his response was unequivocal: ‘these are not children; they are often large unpleasant thugs’ (Hansard, 10 June 2008).
As far back as 1995 the UN monitoring committee was particularly critical of the low age of criminal responsibility, set at low as age 8 in Scotland and at age 10 in England, Northern Ireland and Wales, the UK has to date the lowest ages of criminal responsibility (doli incapax)in Europe. The UN Committee considers a minimum below the age of 12 ‘not to be internationally acceptable’ (UN Committee on the Rights of the Child, 2007, p.8). The UN Committee report of 1995 also condemned the (then proposed) introduction of secure training centres for 12 -15 year olds in England and Wales (for which there are no European equivalents) and a general failure to use custody as a measure of last resort (Article 37b). In a subsequent report by the UN (2002) concerns were expressed about the UK’s increasing numbers of children held in custody at earlier ages for lesser offences for longer periods, therefore not used as a last resort. Further concerns were expressed adequately protect children in custody from violence; bullying and self harm (i.e. failure to accord with ‘best interests’ – Article 3). The Committee concluded that the UK’s record on compliance was ‘worsening’.
In conclusion, it is essential to acknowledge, as Sinclair (2004 cited in Jones and Walker 2011, p.11) does, that such rights are not fixed or guaranteed, are contentious and require co-operation and negotiation on an ongoing basis. She identifies the following aspects as important issues to ensure right-based approaches which includes a key role of campaign groups, such as NCB and Children’s Rights Alliance for England who declared that England and Wales had effectively ‘torn up’ the UNCRC, citing: the failure to move on the low age of criminal responsibility.
Alderson, P. (2008) Young Children’s Rights, Jessica Kingsley
Muncie, J. (2009) ‘The United Nations,Children’s Rights and Juvenile Justice’ in Taylor, W; Earle, R and Hester, R eds. Youth Justice Handbook: Theory, policy and practice. Cullompton:Willan, pp. 20–21 [Online] Available at: http://oro.open.ac.uk/18994/2/K209_09_final.pdf Date accessed 10.04.14
Montgomery, H. (2011) ‘Participation’, in Jones, P. and Walker, T., Children’s Rights in Action , Sage
Montgomery, H. (2007) ‘Participation’, in Robb, M. (ed.),Youth in context: frameworks, settings and encounters, Sage
NCB (2008) Human rights are children’s rights: A guide to ensuring children and young people’s rights are respected, NCB [Online] Available at: http://www.participationworks.org.uk/files/webfm/files/resources/k-items/ncb/human_rights_are_childrens_rights.pdf Date accessed 10.04.14