In his 1938 study English Juvenile Courts, Winifred Elkin referred to "the view so often expressed by the writers of letters to the Press, that the courts have become over-lenient." Seven decades later it seems little has changed. The 2000 British Crime Survey (BCS), for instance, found that 75 per cent of respondents believed the courts treated young offenders too leniently.
In radical contrast, the latest report from the Howard League for Penal Reform – Punishing Children: A survey of criminal responsibility and approaches across Europe – finds that rather than being soft on young offenders, England and Wales actually has the harshest youth justice system in Europe. The study notes that with around 3,000 detained at any one time, England and Wales imprisons far more children than any other country in western Europe, and, at ten years, it has one of the lowest ages of criminal responsibility in Europe.
After welcoming me in to her home in west London, Laura Janes, the Children’s Legal Team Leader at the Howard League and the report’s author, tells me about her recent visit to Belarus, a country that has the dubious distinction of often being referred to as ‘Europe‘s last dictatorship‘. "Even in a country like that they were very shocked about some of our practices in terms of the age of criminal responsibility". In Belarus, she explains, "there is a maximum sentence for children, whereas we are quite content to give children indefinite sentences in this country, which is virtually unheard of in Europe."
As a Solicitor who represents children in custody, 30-year old Janes works on telling cases that are rarely seen in a media typically more interested in heightening the general public‘s fear of youth crime. "I have one child who is in custody for cutting up some papers on her headmasters desk", she relates. "She then threw a pair of scissors. Obviously it’s not good to throw a pair of scissors and thank goodness it didn’t hit anyone or hurt anyone. And it’s not admirable behaviour. But I don’t see that it’s behaviour that warrants custody."
For Janes this incident is indicative of a culture that is too quick to criminalise children. "When it comes to children we take their liberty much less seriously than adults", she says. "They have much less control over their lives and much less opportunity to object, and much less power and ammunition to fight back."
Asked to explain the UK‘s punitive attitude to young offenders, Janes admits that the murder of James Bulger in 1993 produced a significant shift in government policy. However, she argues that this didn’t have to be the case, pointing to a similar incident in Norway at the time that produced a very different response. Janes is referring to the killing of five-year old Silje Raederg by two six-year old boys in the northern city of Trondheim in 1994 – an incident largely unknown in Britain. Whereas the trial of Robert Thompson and Jon Venables at Preston crown court attracted a baying mob clamouring for vengeance, the two Norwegian culprits were treated as victims rather than killers, and returned to school a couple of weeks after the event.
This welfare approach is mirrored throughout other Scandinavian countries and also in Italy, which now has just 500 people under the age of 18 in custody at any given time. But wouldn’t a more lenient youth justice system in Britain lead to a higher level of crime? "The overwhelming evidence is that a punitive approach certainly does not reduce crime. In fact it may be the reverse", she forcefully replies.
"Lots of young men in adult prisons were children in children’s prisons", Janes notes when I ask about the long-term consequences of Britain‘s harsh youth justice policy. "We are creating generations of criminalised people who have missed the opportunity to grow out of committing crime or to reshape their lives in a more positive and constructive way." On an individual level, she argues "we are creating children who are utterly institutionalized, who effectively miss out on their childhood. That is something they will never be able to make up for developmentally."
In October the UN Committee on the Rights of the Child published a damning report on Britain‘s legal and social shortcomings regarding the welfare of children. Unfortunately there is little evidence to suggest our Government is taking the report’s 150 recommendations seriously. "Under Tony Blair we were very punitive, lots of ASBOs, ‘tough on crime, tough on the causes of crime’", Janes says. "The idea was that under Gordon Brown we would be thinking more broadly about the welfare needs of young people". She explains that this progressive change has yet to materialise, with the youth justice system currently being jointly managed by the punitive Ministry of Justice and the more welfare-based Department of Children, Schools and Families. "There is a very strong tension", she points out. "You see that when you look at the recent Youth Crime Action Plan" which "is actually something that is very punitive in its tone."
Janes herself would like to see the Government take a stronger welfare approach to youth justice. In addition she would like custody to be used only "in the absolute last resort", the age of criminal responsibility to be raised significantly and the Government to fully comply with the UN Convention on the Rights of the Child. "What the public want to hear from the Government is that we are dealing with the core problems of these young people through investing in social services, mental health provision and constructive activity, so they are not committing crime."
Returning to British attitudes towards children in comparison to the rest of Europe, most of all Janes says she "would like to see a culture that takes the liberty of children exceptionally seriously, which is what you see in other countries."
Punishing Children: A survey of criminal responsibility and approaches across Europe is available from www.howardleague.org, priced £5.
*An edited version of this article recently appeared in the Morning Star. [email protected].