Criminalizing Children - Justified ?
By Hal Brinton, academic lawyer studying at the University of Leeds.
T
he question of whether
it is right to hold young
people to book for actions
contrary to law is neither
novel, nor dare I say
resolved; indeed abstract concepts are
always contentious! Is the processing
of minors through the Youth Justice
System a necessary evil or is it possibly
an inequitable obstacle burdensome
upon future generations ? Perhaps it
is neither, but in absence of a Cabinet
Minister for Children, answers by
Parliamentary Under Secretary of
State’s on questions of youth criminality
might invariably include soundbites
to the note of.... [‘We] believe that by
providing families with the appropriate
guidance and information they need
will enable them to make the informed
decisions that will ultimately serve
their children, their family and society
best. Government is resolved in its
dedication and support to all of the
United Kingdom’s children, we are
determined in our beliefs that young
people irrespective of background
or circumstance are the future of
our society... and as can be seen by
our Youth Justice statistics we are
committed to reducing the number
of children provided for in the Youth
Secure Estate, as we are equally
committed to reducing the number of
first time entrants into the Criminal
Justice System...’
Laudable, and quite possibly genuine.
It would certainly warrant unbiased
appraisal, thought preferably one not
tainted with issue embodied by either
House - too easy would it be for some,
perhaps many, to draw inferences
between sincerity and the maceration
of financial or otherwise [agenda];
indeed such things are typically
epitomised by necessity which seldom
holds in[law]. One could easily envisage
a preliminary conclusion that ‘as
opposed to the age old unelectable issue
of housing there may now it seems, be
votes in securing the best interests of
the [child]
But conjecture will get one
no where! as lawyers, it is our
duty to look at the facts!
In England and Wales the age of
criminal responsibility is ten years
old, ergo a child of this age or above
is deemed [doli capax]; in the eye of
the law it is this age that indicates a
sufficient understanding of right and
wrong and thus formation of logical
intent for the purpose of mens rea...
..I say nothing of capacity or
fitness.
At the crux of some of the arguments
against criminalizing young children
is the absolute nature of Art.3
ECHR, however the age of ten has
been held legitimate and thus not in
contravention - (2000) 30 E.H.R.R. 121.
Given this age of competency is
comparatively lower than other
member states of the European
Union, this might strike as an oddity
to both the layperson and seasoned
practitioner. In fact England, Wales
and Northern Ireland have the second
lowest age of accountability above all
member states bar Malta, where a
child found on the wrong side of the
law may be held criminally culpable
at the age of nine - dependent on a
‘mischievous misdirection’ .
One could be forgiven for thinking....
‘come on, we live in Great
Britain it’s not like we throw
away the key, kids these days
get a slap on the wrist for
lifting sweets, not like it used
to be, we’ve got rights now, get
real, check your facts!!’
Again such a statement is laudable,
but its also conceivable to suggest
it neglects to credit (if one can do
such a thing) the subtle accuracies
that mean a great deal to many in
everyday life. Jurisprudentially were
such ommissive accounts submitted
in a court say, and were they greeted
receptively (as they might well be),
then a [life] could literally be at the
36 the barrister Hilary Term 2016
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