Tuesday, 1 December 2009

Using the CRC to protect the child’s rights in youth crime in England and Wales

This blog post was contributed by Dr Kathryn Hollingsworth, Senior Lecturer in Public Law at King's College London

The UN Convention on the Rights of the Child is not domestically enforceable in England and Wales, but its profile – and the profile of children’s rights generally - has been raised in recent years thanks to the campaigning efforts of NGOs such as the Children’s Rights Alliance for England, the Howard League for Penal Reform, and UNICEF. On 19th November 2009 a private member’s bill, The Children’s Rights Bill 2009, had its first reading in the House of Lords. The Bill, if passed, will have the effect of incorporating the UN Convention on the Rights of the Child into UK domestic law, using procedures which mirror those set out in the Human Rights Act 1998 by which the European Convention on Human Rights was ‘brought home’ to the UK.

The chances of the Children’s Rights Bill making its way onto the statute book are slim. But that does not mean that the CRC has no place in English law. In the last five years, the judiciary in England and Wales have increasingly drawn on the CRC in order to interpret the rights of children in domestic law. Lady (previously Baroness) Hale and Lord Justice Munby have been particularly instrumental in this regard. This has had an important and positive impact on the protection of children’s rights, especially in the youth crime context.

The leading decision is R (on the application of R) v Durham Constabulary [2005] UKHL 51, where Baroness Hale made it clear that the CRC must be used to interpret the meaning of the child’s enforceable rights under the ECHR. The case concerned the system of diversion in England and Wales and specifically the question of whether the absence of a requirement for a child to consent to a reprimand or warning constituted a breach of the child’s Article 6 ECHR right. Baroness Hale drew on Article 40(3)(b) and 40(4) CRC, as well as the Beijing Rules and the Riyadh Guidelines, and expressed her ‘grave doubts’ as to whether the system of diversion in England and Wales complied with the CRC (because of its rigidity and because it propels the child more quickly through the criminal justice system). Crucially, however, Baroness Hale pointed out that the lack of a requirement to gain the child’s consent before being issued with a final warning did not breach the child’s enforceable rights under the ECHR.

Despite the unfavourable outcome for the child in this case, Baroness Hale’s dicta is permeating through into other cases. One area of youth crime where the child’s CRC rights are of particular importance is where the child is detained in a custodial institution. Here the CRC can be used to emphasise the child’s status as child – the need to care for the child as a child rather than as a ‘prisoner’. Article 3 CRC can be especially useful here. For example, Mr Justice Munby (as he was then) drew on the CRC in his landmark judgment in R (on the application of Howard League) v Secretary of State for the Home Department [2002] EWHC 2497. In particular, the child-specific obligations such as Article 3 CRC imposed ‘on the Prison Service positive obligations to take reasonable and appropriate measures’ designed to ensure that children in YOIs are treated with humanity and with respect for their dignity, and that they are not subjected to torture or inhuman or degrading treatment. In particular, when balancing the interests of the child against the wider interests of the community and other inmates, Mr Justice Munby argued that regard should be had to the inherent vulnerability of children in a YOI, and also to the principle that the best interests of the child should be a primary consideration. This approach was followed very recently by the Court of Appeal in R (C) v Secretary of State for Justice [2008] UKCA Civ 882, a judicial review case brought to challenge the regulations which allowed restraint to be used in Secure Training Centres for the purposes of good behaviour and discipline. In this case, the application was successful and the regulations were quashed for breaching Articles 3 and 8 ECHR, both of which were interpreted by taking account of the CRC.

These are just a handful of cases where the CRC has been used successfully to protect the child’s rights in the prison context. But, the Convention has certainly not proved to be a panacea. Even where it is used by the judiciary as an interpretative tool, it can only extend as far as the child’s rights in domestic law or under the ECHR allow. For example, in R (on the application of DT) v Secretary of State for the Home Department [2004] EWHC 13 a girl was being moved from a Local Authority Secure Children’s Home into an adult female prison because of shortage of space. The judge held that an apparent breach of Article 37(c) CRC was irrelevant here (not least because the UK had derogated from that provision but nonetheless it is not directly enforceable) but that the girls’ article 8 ECHR rights were engaged, and the content of these rights could be interpreted in light of the CRC – though only Article 3 because of the derogation from Article 37(c). Although the judge agreed that her Article 8(1) rights were engaged when she was transferred to an adult prison, the restriction was deemed justifiable under Article 8(2) ECHR. More recently in R (on the application of London Secure Services) v Youth Justice Board [2009] EWHC 2347, a JR challenge was brought against the Youth Justice Board for its decision not to re-commission 28 beds in local authority secure homes (the preferred type of institution from a children’s rights perspective for children detained in the secure estate). The challenge was not successful despite Mr Justice Forbes claiming to take into account the child’s rights under the CRC in determining the content of the relevant ECHR rights.

There appears to be only so much the judiciary can do to protect the child’s CRC rights in youth crime. But, although limited, the willingness of the judiciary to draw on the CRC to interpret the meaning of a child’s rights is particularly crucial given the Conservative Party’s pledge to repeal the Human Rights Acta if they are elected in 2010. If this happens, the rights under the ECHR will no longer be domestically enforceable and the judgements of the European Court of Human Rights will presumably decline in relevance to rights protection in England and Wales. This could have serious implications for children in trouble with the law for three reasons: firstly because the Tory’s motivation for replacing the HRA in part comes from the fears that the Human Rights Act is a ‘criminal’s charter’ – it may be the rights of ‘criminals’ which are thus most restricted in any new bill. Secondly, the ECHR has been an invaluable tool in protecting the rights of children detained in custodial institutions. And thirdly, the justification Lady Hale gave for interpreting the child’s ECHR rights in light of the CRC in the Durham Constabulary case was that this is the approach taken by the European Court of Human Rights.

It is crucial that the CRC is seen as an over-arching and consistent presence that is founded in the UK’s ratification of the Treaty and not in the decisions of the European Court of Human Rights. If so, the English judiciary can continue to interpret a child’s rights in light of the CRC, regardless of the source of those rights – whether it be the ECHR or a domestic bill of rights. Clearly, the reach of such an approach will depend on the particular bill of rights in force but at the least it should help to ensure that the progress made in the interpretation and enforcement of the child’s rights in area of youth crime in the last 5 years is not lost, even if the Human Rights Act is.

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Friday, 4 April 2008

Plenary Session 2: Thomas Hammarberg - Youth justice based on child rights norms

Commissioner Hammarberg (Council of Europe Commissioner for Human Rights) opened his address by highlighting the fact that east is starting to look west as many countries’ systems have failed from a human rights perspective and also from a recidivism perspective. He gave some examples of countries to the east of Europe that have criminal justice systems that are far from desirable; where there is disproportionate imprisonment of ethnic minorities and difficulties within youth detention centres. Having highlighted a number of problems being experienced in the east of Europe, he then went on to focus the remainder of his presentation at Ireland and the UK

The Commissioner noted that he had just arrived from inspecting detention centres in England and a report is due out in 2008. Previous reports have criticised the UK for the large numbers of young people in detention; a situation that Hammarberg noted has yet to be addressed. He also noted in particular the use of restraints in youth detention centres and the ongoing debate as to what types of restraints are permissible. This is an issue that Mr. Hammarberg believes there is a striking focus on in the UK, perhaps more so than in other countries. He then went to note that as the UK is seen by other countries as an important role model, it is imperative that it would bring its system in line with international standards. He referred to the unanimity between academics and practitioners over how the English system ought to operate, but also that media and public opinion may make it difficult to make these changes from a political perspective.

Commissioner Hammarberg then moved on to consider the age of criminal responsibility, which he noted was too low in both the UK and Ireland (in spite of the fact that there is no actual age specified in the international standards). He went on to say that too many young people are being brought into the system and labelled as criminals when in fact they are victims of their background. There are many more detained who should be in special units to tackle their mental issues. He referred briefly to his recent examination of the Irish youth justice system although he could not go into much detail as the report is due out at the end of April. There will be a number of recommendations in the report.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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Plenary Session 2: Barry Goldson - From pre-emptive intervention to custodial detention: Systematic human rights violations in English ‘justice’

Professor Goldson began by highlighting the well-known fact that youth justice has become much more punitive in the last 15 years. He added that the English system flagrantly violates most human rights. He also wished from the outset to dispel the myth that Wales and England should be treated as one, highlighting that Wales has undergone devolution and is now largely compliant with international standards. Goldson sought to raise three propositions to support his views that England is systematically violating human rights standards in relation to youth justice.

The first proposition is that England comprises one of the most punitive juvenile justice systems in the industrialised democratic world. The second proposition is that punitivity has been institutionalised over the past 15 years by an endless stream of legislation. Goldson outlined briefly the legislation that has been brought in that has an effect on the youths in England. His final proposition is that the net effect of this legislation serves to systematically violate the human rights of children.

Young people are now targeted by the system in a very particular way. A child may not even have committed an offence and yet the mere fact that they may be at risk of committing an offence in future may bring them into the system. This is anathematic to traditional principles of criminal justice. It used to be the case that children only came into the criminal justice system where they had committed an offence and in those circumstances there were clearly defined guidelines for the administration of justice. This would have been in line with international standards. Now intervention can take place before an offence is carried out. Children are exposed to intervention on the basis of what they might do. Goldson argued that perceived risk is not a crime; they are innocent and this innocence is being seriously compromised. It appears from expert evidence that Goldson referred to that there is little to show that early intervention is successful; rather the idea is dismissed as ‘fanciful’.

The UN first expressed concern in 1995 about the levels of detention and since then numbers have actually doubled, which Goldson noted was a graphic violation of children’s rights including the right to life: from 1990 to 2007 there have been 30 youth deaths in detention. A youth of colour is 6.7 times more likely to get a sentence of over 12 months than a white youth. The UN is due to report again this year but Goldson expects them to express few positives and quite a number of negatives. Goldson concluded by arguing that the challenge for those concerned is not to seek out the interventions that work but rather to abandon the ones that do not work.

Summary provided by LL.M (Criminal Justice) candidate, John Cronin.

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