Criminal at 10?

1. Criminal at 10?

2. Who are we? "Criminal at 10?" is part of a wider campaign being developed to highlight some key issues regarding the age of criminal responsibility in England and Wales (which is currently set at 10).  For some time, there have been concerns that children enter the criminal justice system too young, with a number of unfavourable consequences. Not only might the child suffer detrimentally through their life course, the justice system itself struggles to maintain provisions for this age category, and the State struggles to find funding. Possibly more importantly, there are concerns that many children of 10 are unable to asses morality and responsibility (for less serious crimes) to an extent that would demonstrate sound intentions of wrongdoing. Hence, to prevent children entering the justice system too young (for all those reasons and more) the age of criminal responsibility should be raised.

3. ‘Between 2005 and 2010 178 children (10-17) started an indeterminate sentence in custody, only 11 were released before their 18th birthday.’ ‘11% of children in prison have attempted suicide.’ ‘In March 2010, 24% of children were held over 50 miles from their home, including 7% held over 100 miles away. In March 2011 this increased to 30% who were held over 50 miles from home, including 10% held over 100 miles away.’ The facts:Taken from the Prison reform Trust (2011) ‘At the end of September 2011 there were 2,061 children (under-18s) in custody’

4. The UK is amongst the lowest in the world

5. Child Neurology ‘Age of criminal responsibility is too low, say brain scientists - Parts of the brain responsible for decision-making and impulse control are still developing during a person's teens.’ (Jha, 2011)

6. Neuroscientific research has contributed greatly to the arguments concerning the age of criminal responsibility and reinstating the principle of doli incapax. Doli incapax is the assumption that a person under a certain age, cannot be held responsible for their actions, due to the incapability of knowing right from wrong. (Muncie, 2009) Developmental neuroscience looks at the functional alterations that occur throughout a Childs development to adolescence. ‘There are two primary adjustments that develop in the brain…myelination and synaptic pruning.’ (Walsh, 2010) Synaptic pruning refers to the connectivity in the prefrontal cortex in the brain (the area that functions cognitive processes and emotional development through to adulthood). Myelination is the fusing of the wires in the brain which speed up the messages from one region to another. Both of these processes combined lead to a decrease in grey matter, and an increase in white matter > Adult maturity. (Walsh, 2010) Therefore…How can a child possibly be held fully responsible for a crime if their brain has not fully developed? From 10 onwards, the majority of children are at the peak of cognitive development. However a Childs impulses and decision making processes are the slowest to mature (Jha, 2011)

7. So what about child maltreatment and dysfunctional development? Children in custody: the facts on mental health issues from The prison reform Trust (2011) In comparison to neurological dysfunctions that individuals are born with, many also develop them through past experiences. For example;  a documentary and study of a six year old girl named Beth Thomas during the 1980’s gave a detailed insight into the psychological damage inflicted upon her due to her abused past and her random, aggressive, and violent outbursts towards her adopted parents and younger brother. Beth was interviewed about her previous life to her and her brother’s adoption, describing how she had been sexually abused and beaten by her violent father. Beth’s adopted parents describe how on numerous occasions, she had attempted to kill them at night with a kitchen knife, and on a daily basis, sexually abused and beat her younger brother and attempted to kill him by bashing his head against a floor, and on numerous occasions tried to kill him with a kitchen knife. When interviewed, Beth describes her violent behaviour with no emotion and no explanation as to why she wants to harm her parents. Yet describes feeling angry towards her younger brother due to his sex, which she explains how it reminds her of her father’s behaviour towards her as a toddler. (Child of Rage a Story of Abuse, 1989) • ’39% of children in custody had been on the child protection register and or had experienced abuse.’ • ‘One in three girls and one in 20 boys had been sexually abused.’ • ‘23% of children in custody have learning difficulties’ • ‘5% of children were reported having psychotic symptoms’ • ‘Mental health rates are three times as high for children in custody than those from the general population.’ http://www.youtube.com/watch?v=g2-Re_Fl_L4 Throughout the years, researchers have studied the neurological causes for violent and aggressive behaviours using neuroimaging technology, showing evidence of brain abnormalities affecting the hormonal and behavioural controls within the body, leaving a persons behaviour to react uncontrollably towards violence. These neurological findings often display defects through psychosocial factors and those born with biological dysfunctions. (Sterzer & Stadler, 2009)

8. ‘In December 2011 the Royal Society published a report that looked at the legal applications of neuroscience. One issue the report considered was the role of neuroscience in determining an appropriate age of criminal responsibility. It said that neuroscience was “providing new insights into brain development, revealing that changes in important neural circuits underpinning behaviour continue until at least 20 years of age”.11 The report drew the following conclusion:’ • “...it is clear that at the age of ten the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour. There is concern among some professionals in this field that the age of criminal responsibility in the UK is unreasonably low, and the evidence of individual differences suggests that an arbitrary cut-off age may not be justifiable.” (Royal Society, 2011) • ‘Professor Nicholas Mackintosh, who chaired the working group that compiled the study, stressed that the Royal Society was simply presenting the scientific evidence rather than calling for a change in the law: it was “for policy makers” to decide on any changes to the age of responsibility.’ (Lipscombe, 2012)

9. The state, our children, and the age of criminal responsibility. “Every Child Matters” Or do they?

10. Political attitude • Historically: • ‘child saving’ period spanning the mid to late 19th century . • Key period for the welfare-justice debate that considered whether child offenders were depraved or deprived. • Mary carpenter encouraged the fair treatment of child offenders, suggesting that helping their needs (and addressing the reasons behind their offending) was more productive in the long run than retributive punishment. • A number of judicial reforms reflected this opinion including, reformatories and ragged schools for those believed to be deprived, and ‘improvements’ in custodial conditions for children who were deemed depraved. • Generally, a greater precedence placed on the socio-economic context of child offending.

11. Since then?.... • Welfare and justice have continued to co-exist however their relationship is rarely compatible. • Creates a confused and confusing justice system in which politicians must address public concerns regarding crime as well as professional concerns regarding the treatment of child offenders. • Political tool? • Crime control appears to be a more valuable political tool than child-welfare. Is this because child-offending is made more visible to us than the extent of the welfare complexities of many children involved in crime? • Political priorities? • What really are political priorities? Fighting crime? Protecting our children? Or is it more basic than that....being efficient...regardless? Justice? Welfare?

12. Has anyone got it right? Idealist? • Churchill? (Most ideological?) • Wilson?(1969 Children and Young Person’s Act- most promising?) Revisionist? • Thatcher? (3 e’s- most incompatible?) • Blair? (‘Tough on crime’- most publically pleasing?) • Cameron? (‘Joined-up thinking’- most confusing?)

13. What should we be doing? Protecting basic rights: • Much (if not all) criminal justice legislation and policy is influenced by international principles of human rights (natural and legal). • Adult criminal justice system= visibly addressed (PACE). • Juvenile justice system= forgotten (arbitrary punishment, limited access to legal representation).

14. Says who? • UNCRC: • In all actions concerning children the best interests of the child shall be a primary consideration. • States parties undertake to ensure the child such protection and care as is necessary for his or her well-being. • No child shall be deprived of his or her liberty unlawfully or arbitrarily. • The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. • Beijing Rules (section 5): “The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence”

15. Are we adhering? • Rhetorically, yes. Practically, no. • Despite pledging our commitment to protecting a child’s rights and needs (‘every child matters’) , and appreciating the complexities of child offending (such as neurological development) our implementation of legislation and policy is contradictory. A persistent extension of the remit of juvenile punishment arguably exacerbates the extent to which we do not adhere. • David Cameron suggests we cannot treat criminals as children. • Has he forgotten those offenders that are children? • Other politicians suggest children can differentiate between “bad behaviour and serious wrongdoing” • It could be argued that with their commitment to criminalizing trivial offending, it is actually politicians who seem unable to differentiate between such behaviours –indiscriminate punitivism.

16. Why not? Persistent punitivism continues to compromise the welfare, needs and rights of young offenders. How? 3 d’s to rival Thatcher’s 3 e’s: • Direct punitivism (extending custody provisions that generate and compound vulnerabilities). • Diversionary punitivism (‘alternatives’ that surreptitiously funnel children into the justice system). • Deceptive punitivism (disguising punishment as ‘welfare’).

17. Because? Pre-determined criminality? Socio-economic hardship? Neglect or abuse? ‘Dysfunctional’ family? Victimized? Criminal parents? RISK! Apparently, these individuals pose significant risk to the fabric of society

18. What will help Raising the age of criminal responsibility! How? • Will divert more children away from formal justice (although it’s likely there will always be a way to funnel them) • Will protect their immaturity (we protect adults, so why not children? • Will acknowledge there is more to crime than the event itself. Will be forced to appease the antecedents in younger children.

19. References Bandalli, S. 2008. Abolition of the presumption of doli incapax and the criminalization of children. The Howard Journal [e-journal] 37(2) pp. 114-123. Available through: Blackwell Publishers [Accessed 15 July 2012]. Carpenter, M. 1851. Reformatory Schools for the Children of the Perishing and Dangerous Classes and for Juvenile Offenders [e-book] London: Bloomsbury. Available at: <http://www.books. google. co.uk> [Accessed 25 June 2012]. Clarkson, C. Keating, H and Cunningham, S. 2007. Clarkson and Keating criminal law. 6th ed. London: Sweet and Maxwell. Flacks, S. 2012. Youth justice Reform: Redressing age discrimination against children? Youth Justice [e-journal] 12(1) pp. 19-35. Available through: Sage Publications [Accessed 13 April 2012]. Home Office. 2003. Every Child Matters. London: HMSO. Home Office. 1968. Children in Trouble. Cmnd 3601. London: HMSO. 

20. References King, P. 1998. The rise of juvenile delinquency in England 1780-1840: Changing patterns of perception and prosecution. The Past and Present Society [e-journal] No. 160. Pp. 116-166. Available through: JSTOR [Accessed 26 June 2012]. McAuley, M. 200. Children in Custody: Anglo-Russian Perspectives [e-book] New York: Bloomsbury Academic. Available at: <http://www.google.co.uk> [Accessed 26 June 2012]. Morgan, R. 2010. Children and young people in custody. In: W. Taylor, R. Earle, and R, Hester, ed. 2010. Youth Justice Handbook: Theory, Policy and Practice. Collumpton: Willan Publishing. Muncie, J. 2011.Youth and Crime. 3rd ed. London: Sage Publications. Piper, C. 1999. The Crime and Disorder Act 1998: Child and community ‘safety’. The Modern Law Review [e-journal] 62(3) pp. 397-408. Available through: Blackwell Publishers [Accessed 17 October 2012]. UN Committee on the Rights of the Child, 2008. Concluding Observations. October 2008. CRC/C/GBR/CO/4.

21. I Predict a RiotLondon 2011

22. The London Riots 2011 • One of the largest scale punitive responses that Britain has seen since the Brixton riots in 1981. • About a quarter of participants in London were under the age of 17, yet all protocol regarding youth justice was ignored. • Instead of being dealt with through youth courts, juveniles were immediately sentenced at a magistrates court. (Johnson, User Voice, 2011)

23. Of significance though, was the involvement of young offenders and the manner in which they were drawn into an already stretched criminal justice net, often unnecessarily by such means as: • Unusually concerted efforts to swiftly identify suspected offenders (described by one judge as “speedy justice”, some may suggest amore appropriately termed hasty justice). • Prosecution of minor offences that would ordinarily receive cautions. • Extended court hours. • Disproportionate sentences (to which judges defended that the “sheer lawlessness” was a significant aggravating factor).

24. Media and the London Riots 2011 • London’s Youngest rioter: “An 11-year-old boy has been given an 18-month youth rehabilitation order for stealing a bin....” (The Guardian, 2011) • A 14 year old girl: “...who had never been in trouble before...admitted stealing clothes, make-up and CDs during the riots in London last week” (The Telegraph, 2011) • Unnecessary custodial sentences: “As those involved in the riots were dealt with swiftly by the courts, the number of new arrivals at Feltham hit 60 in a week, the same number it would typically expect in a whole month” (The Telegraph, 2011).

25. Prison sentences totalling more than 1,800 years have been handed out to rioters following the disorder which began a year ago. Source: School Census, Ministry of Justice “The worst possible outcome would be just to sling all these young people in prison and risk their joining gangs out of terror and becoming hardened criminals” Juliet Lyon Prison Reform Trust

26. SO………….. What’s the Message??? • Conclusively, the message appears to be that: • Young people rioted because of social disadvantage (now contested.) • Official judicial action intended to denunciate such disorder was disproportionate. • Juveniles are (again) the scapegoats for social disorder, providing government with a suitably powerless target for exerting social control.

27. RELATED ARTICLES LINKS: "Reading the Riots" (A research collaboration between The Guardian and the London School of Economics). "London riot sentences absolutely right" (The Guardian, 2011). "How to prevent riots: invest in young people, don't criminalise them" (Johnson, User Voice, 2011). "London riots: parents of young rioters don't care, says judge" (The Telegraph, 2011). "Young rioters targeted by other inmates" (The Telegraph, 2011). "Youngest London rioter..." (The Guardian, 2011).

28. Get involved Join in the discussion and tell us your thoughts, it’s open to everyone