The Minimum Age of Criminal Responsibility
In England and Wales, the Minimum Age of Criminal Responsibility (MACR) is 10 years of age. This has been severely criticised over the years for its lack of adherence to the United Nations Convention on the Rights of the Child (to which the UK as a whole is a signatory State), as being too low given developments in understanding about brain development in particular, and the dangers of treating young children as if they had the same culpability as adults. However, successive UK Governments have refused to address this issue, possibly relating to one specific case from 1993 involving two 10-year-old children (Jon Venables and Robert Thompson) who killed a 2-year-old-child (James Bulger), and the public outcry which then ensued (encouraged by emotive media coverage). Despite the fact that this case happened over 30 years ago, it is still cited in discussions relating to changing the MACR, possibly because it precipitated a change in the law abolishing the rebuttable presumption of doli incapax for children between 10 and 13 (effectively lowering the MACR from 14 to 10).
Children are treated as adults (age of criminal majority) when they become 18-years-of-age. Prior to this, children (over 10) who break the law are dealt with in a specific youth justice system, which has its own sentencing guidelines, non-court/court disposals, supervisory arrangements, custodial estate and criminal records process. There is a specific Youth Court for children, but those co-accused with an adult, or who have committed an offence too serious for the disposals available to the Youth Court, will go to the adult Crown Court instead (which is not child friendly or child appropriate). Children who have committed an offence prior to turning 18, but do not have their first court appearance before their 18th birthday are tried as adults, despite offending as a child.
The Youth Justice System in England and Wales
The current Youth Justice System (YJS) in England and Wales was largely set in place by the Crime and Disorder Act, 1998. This Act established the Youth Justice Board (YJB; a non-departmental public body with overall responsibility for youth justice, but now answerable to the Ministry of Justice) and multiagency Youth Offending Teams (YOT).
The YJB’s strategic approach is Child First, which means seeing children as children, working to promote their pro-social identity, collaborating with children and their carers, and diverting from the stigma of system involvement wherever possible
Over the past decade, there have been massive reductions in arrests of children (down 46%), use of youth cautions (down 84%), first time entrants to the system (down 65%), total proven offences (down 61%) and reductions in the use of custody for children (down 65%). Proven reoffending rate (recidivism) is currently 32.5%.
Detailed statistics relating to youth justice are published annually (each January) here: https://www.gov.uk/government/collections/youth-justice-statistics. This gives a high level of transparency to the system.
Available disposals for children
Out of court disposals – children who offend at a low level or for the first time are now very likely to receive an out-of-court disposal, which can be as low-level as non-procedure with the offence by the police (called ‘Outcome 22’), through a Community Resolution (voluntary), to Youth Cautions (voluntary) and Youth Conditional Cautions (non-voluntary). Children in England are often assessed through a ‘triage’ system, which identifies whether they should be diverted from the formal system or not, and tries to engage the child in voluntary support. In Wales, a slightly different model (called Bureau) brings together a panel who look at how the children can be supported and diverted from formal action if possible.
Sentencing at court – children in court for the first or second time can receive a Referral Order, which requires them to work with the YOT for a period of time (set by the court) on a co-constructed plan (set by a voluntary panel which includes community members). If, however, the offence is deemed too serious for this, then they can receive a custodial order instead. Children who keep appearing before the court are likely to move on to a Youth Rehabilitation Order, which has a range of requirements attached (for example, YOT supervision, unpaid work, reparation). Children on the cusp of custody can be given a more onerous requirement (Intensive Surveillance and Supervision), requiring them to keep to an electronically-tagged curfew and have 25 hours of YOT contact per week.
Custody – children can receive custody, but recent reductions have seen the proportion of children appearing in court receiving immediate custody drop to just 5%. Custody orders mainly take the form of Detention and Training Orders (DTO; lasting between 4 months and 2 years, and which are served half in a secure setting and half in the community with YOT supervision). If the offence is deemed too serious for a DTO, then a Section 250 Custody Order allows for anything up to a life sentence (which is mandatory for murder) (note that there is a number of other custody orders for specific types of offending but these are relatively uncommon).
The most recent statistics show that the average number of children in custody at any one time is approximately 430 (which is a significant decrease, compared to the height of over 3000 in 2003). Concerted efforts have been made since over the past decade or so to reduce the use of custody, recognising the damage it can cause to children.
Youth custody
Youth custody is now overseen by the Youth Custody Service https://www.gov.uk/government/organisations/youth-custody-service
There are three types of custodial institution in the youth secure estate:
Secure Children’s Home – run by local authorities, these accommodate both younger/more vulnerable children (boys and girls) given custody from a criminal court and children secured for their own safety through Children’s Social Care (on a secure court order for welfare reasons). They tend to be smaller in nature and more child-friendly in their design. There are currently eight Secure Children’s Homes which accept children on criminal grounds, seven in England and one in South Wales.
Secure Training Centre –run by private companies, these accept children (girls and boys) on criminal grounds aged 12 to 18 years-of-age. There is now only one Secure Training Centre left (run by G4S), after concerns over safety were raised regarding the others in existence at the time, leading to them being closed.
Young Offenders Institution – run by the Prison Service (apart from one in Wales, which is run privately), these accept boys aged 15 to 17 years-of-age. There are currently four Young Offender Institutions (three in England, one in South Wales) which are the largest secure sites, to which the vast majority of children are now sent.
Community Supervision
The vast majority of justice-involved children in England and Wales are subject to supervision by multiagency YOTs (voluntary involvement for some out-of-court disposals and compulsory involvement for court disposals), which are responsible for delivering justice outcomes to children in England and Wales. YOTs statutorily comprise of five partner organisations: Probation, Police, Social Services, Education and Health, but often also involve other services like housing and substance misuse services. Despite the statutory name, most YOTs now call themselves Youth Justice Services, acknowledging the damaging effect that labelling children as ‘offenders’ can have.
YOTs are based locally in every local authority area. There are currently 154 YOTs in England and Wales. They are inspected on a three-year cycle by a multi-agency joint inspectorate led by His Majesty’s Inspectorate of Probation https://hmicfrs.justiceinspectorates.gov.uk/our-work/article/criminal-justice-joint-inspection/youth-offending-teams-joint-inspections/
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