This book will consider the question of when is it fair to hold young people criminally responsible and to subject young people to the rigours of the criminal youth justice system. The book will examine whether young people should be treated as responsible moral and legal agents and will argue that the current English youth justice system has developed in a way that runs the risk of children and young people being prosecuted for crimes they are too immature to fully understand. The law, as a system of rules that guides and governs human interaction, is premised on the view that humans can understand and follow rules. The law’s concept of a person is a practical, reasoning, rule-following being who understands the difference between right and wrong. Therefore when a criminal court convicts the defendant of an offence, it is because he is responsible for his conduct. Effective criminal law requires that citizens understand that certain conduct is prohibited, the nature of their conduct and the consequences for doing what the law prohibits (Morse, 1997). Thus criminal liability “should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and its consequences” (Ashworth, 2003: 158). Hart (1968) similarly emphasises the principle that punishment should be restricted to those who have voluntarily broken the law and stresses that criminal liability is founded upon “… the simple idea that unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him”. There is thus an expectation that for an individual to be convicted of a crime he must be a moral agent, as conviction represents a moral criticism (Arenella, 1992; Strawson, 1974; Kadish, 1987). Judgements about whether particular conduct is blameworthy must operate within the framework of substantive moral values. Adults are presumed to be mature and to have developed their decision-making capacities and thus are held accountable for their behaviour. Under the normal rules of criminal law, an adult’s transgression is deemed less blameworthy than typical offenders if their decision-making capacities are impaired, for example by mental illness which is attributable to a condition falling within the M’Nagthen rules (Simester at el, 2010: 796). Currently in England and Wales the defence of infancy excuses all children below 10 years of age from criminal liability as such children are considered morally irresponsible and lacking blameworthiness. The current law thus assumes all children are sufficiently mature at 10 years of age to accept criminal responsibility for their behaviour. Although children between 10 and 18 years may understand the difference between right and wrong from a young age, they do not yet possess the emotional maturity to control their impulsivity and appreciate the consequences of their actions. Children and young people are less mature than adults in terms of the judgment factors of responsibility, perspective and sensation-seeking and thus experience difficulties in weighing and comparing consequences when making decisions and contemplating the meaning of long-range consequences that will be realized 5-10 years in the future (Modecki, 2008, Woolard, 2002). These cognitive difficulties also have implications for young peoples’ ability to be competent defendants in adversarial atmospheres (Woolard, 2002). Legal theorists have not systematically applied themselves to questions such as, if young people lack the capacity to make a meaningful choice and to control their impulses, should they be held criminally culpable for their behaviour? In what ways is the immaturity of young offenders relevant to their blameworthiness? Should youth offending behaviour be proscribed by criminal law? The book seeks to address these questions by exploring international and historical evidence on how societies regulate criminal behaviour by young people and undertaking a careful examination of the developmental capacities and processes that are relevant to young people’s criminal choices. The book will examine the following questions: • Why do we attribute criminal responsibility to children and young people? • What is the function of the criminal law/criminal justice system and how does it apply to young people? • Are young people fully responsible moral and legal agents? • In what way is immaturity relevant to blameworthiness? I will critically analyse the implications of these questions for policy-making in England and Wales and conclude by proposing changes to the present law. Young children are certainly moral objects, in that the stance we take towards them is moral, hence, they do need an exemption from liability (Horder, 1996). Their culpability depends crucially on their powers of moral reasoning and judgement, and of self-control. How far are young people capable of grasping the wrongfulness of their conduct in question, and of controlling their own conduct in the light of their moral understanding (Zimring, 2000)? In England and Wales children and young people defined in law as criminally responsible have historically, and presently, been addressed by the criminal justice system and the criminal law in ways which are largely similar to how adults are treated. Yet the expansion of the concept of childhood in our culture, such that the child has been defined as a person under 18 years of age in the Children Act 1989 and the United Nations Convention on the Rights of the Child, and the extension of young people’s transition to adulthood requires fundamental changes in the way the criminal law addresses young people. A more synthesised and integrated approach is needed to the way in which under 18s are dealt with by the police, the courts and the youth justice system, an approach which is clearly distinct from that for dealing with adults. My argument throughout this book is that the youth justice response needs to be reconceptualised in a context where one of the central objectives of institutions regulating children and young people’s behaviour is to support the interests and welfare of those children, unlike traditional criminal law which focusses upon providing redress, and retribution, against harm to others via punishment. Braithwaite and Pettit (1990: 45) talk of the need to posit a ‘satiable’ goal for criminal law, which motivates ‘respect for uncontroversial limits’ on the law’s powers, and does ‘not make voracious demands’ that threaten those limits. Zimring (1998: 479) suggests that the law should make substantial efforts to punish youth violence without eliminating an offender's chances to grow into adulthood in near-normal circumstances. If institutions addressing children and young people had a different conception of the implication of responsibility for children, from the implications of responsibility for adults, and were oriented towards the welfare of all children including victims and offenders, these objectives could be realised and could encourage changes in the cultural perceptions of young people who break the law. This book aims to provide a systematic analysis of how we think about young people who offend and the criminal laws used to respond to them. To answer this question we need a positive account of the aims and functions of the youth justice system.
|Place of Publication||Abingdon|
|Publisher||Taylor & Francis|
|Number of pages||152|
|Publication status||Published - 15 Dec 2016|