Young Offenders and the Law

How the Law Responds to Youth Offending

Raymond Arthur

• Publisher: Routledge
• Year: 2010
• Print ISBN: 9780415496629
• eBook ISBN: 9781134004867
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

How does the law deal with young offenders, and to what extent does the law protect and promote the rights of young people in conflict with the law? These are the central issues addressed by Young Offenders and the Law in its examination of the legal response to the phenomenon of youth offending, and the contemporary forces that shape the law.

This book develops the reader's understanding of the sociological, criminological, historical, political, and philosophical approaches to youth offending in England and Wales, and also presents a comparative review of developments in other jurisdictions. It provides a comprehensive critical analysis of the legislative and policy framework currently governing the operation of the youth justice system in England and Wales, and evaluates the response of the legal system in light of modern legislative framework and international best practice. All aspects of trial and pre-trial procedure affecting young offenders are covered, including: the age of criminal responsibility, police powers, trial procedure, together with the full range of detention facilities and non-custodial options.

Young Offenders and the Law provides, for the first time, a primary source of reference on youth offending. It is an essential text for undergraduate and postgraduate students of Law, Criminology, and Criminal Justice Studies.

Part I
Historical development of the English youth justice system

1
Development of a separate youth justice system – historical perspectives

Introduction

This chapter will examine how concepts of youth, childhood and adolescence have been developed and how separate systems of justice were established for young people in the nineteenth century. Examining the historical development of the youth justice system will help you to understand that the problem of youth crime is not a recent problem. It also provides a benchmark against which the modern youth justice system can be compared and contrasted.

Development of childhood

Childhood has not always been a time in the life cycle to which much importance has been attached. During the Middle Ages there was no concept of childhood, youth or adolescence; Aries notes that various languages did not even have words to describe childhood (Aries, 1962: 28–9). Historically there were no games for children; children participated in manual work, drinking alcohol and gambling. Children were legally the property of their parents and were used by them as a vital source of family income and placed in work as soon as they could be economically active. Children below seven years of age were acknowledged as being physically vulnerable, but once the child was older than seven years the child was simply regarded as a small adult. In the Middle Ages child labour from the age of four years was a long established rural practice and apprenticeships often began at the age of seven years. With the arrival of the industrial revolution, the children of the poor formed the bulk of factory labour. Such a situation was considered beneficial to families, in order to maintain a level of income, and also to factory owners who benefited from a source of labour. Such realities were bolstered by law. Compulsory education did not begin to develop until the 1870s and cruelty to children did not become a criminal offence until 1899 with the passing of the Prevention of Cruelty to Children Act 1899. The 1899 Act aimed to deter the mistreatment of children and made it an offence for a person over the age of 16 years to ‘assault, ill-treat, neglect or abandon any child for whom he has responsibility’.

The law made no special provisions for young people who committed crime. Provided a child was over the minimum age of criminal responsibility (seven years of age) and had mischievous discretion, the child was as fully liable as an adult to the penalties provided by law. Mischievous discretion means that at the time of the alleged offence the child was aware that what he or she was doing was seriously wrong as opposed to being merely mischievous or naughty. Otherwise there was no special protection for young offenders; once a child was aged seven the child was held responsible for any misdemeanour or crimes they committed. If children were old enough to commit a crime, then they were old enough to be sentenced the same as adults. Children convicted of offences were sentenced the same as adults.

The pre-Norman Laws of Ine dating from the eighth century suggest the age of 10 as the age of criminal responsibility. Bracton explained this by equating a child’s ‘innocence of purpose’ with a ‘lack of intention to harm’ (Bracton, c. 1250). The test was whether the child had the understanding of an adult. By the fifteenth century the pre-Norman age limits had been lowered. Hale, in his seventeenth-century textbook explains the laws incorporation of the distinctions between infancy (up to seven years of age), the age approaching puberty (seven to thirteen years of age), and puberty (over 14 years) (Hale, 1736). Other than this, the criminal law accorded no differentiations in the method of bringing offenders to trial, in the form of the trial itself and in the punishment that could be enforced. Young offenders were liable to the same forms of trial and punishments, including capital conviction, transportation and imprisonment.

Development of a separate youth justice system

In Victorian times the criminal justice system was very severe. The Victorians believed in institutions: mad-houses for the mad and prisons for the bad. Consequently the legal system did not differentiate on the basis of age. However during the nineteenth century concern developed about the moral contamination of young people. The first public body to investigate youth offending behaviour, established in 1815, was the Society for Investigating the Causes of the Alarming Increase of Juvenile Delinquency in the Metropolis. The Society’s evidence was taken from interviewing children already incarcerated in prison. It concluded that the main causes of juvenile offending in England’s developing and industrialising capital city were, amongst other things, the improper conduct of parents and the want of education. The causes of crime were found to be firmly rooted in the low moral condition of parents and in parental neglect. This resulted in the emergence of the view that adult and young offenders must be separated in order to avoid the ‘contamination’ of the younger offenders. Pressure to develop separate institutions for young offenders was also developing from voluntary organisations such as the Philanthropic Society and the Society for the Suppression of Juvenile Vagrancy. The Philanthropic Society was founded in 1788 and aimed to reform the ‘depraved’ and the ‘deprived’. An asylum with no surrounding wall was established in Hackney to provide some resemblance of home for up to 60 children. Each child was assigned to a local manufacturer to provide industrial instruction; daily prayers and church attendance were compulsory. In 1792 further property was acquired complete with its own dormitory and workshops. The distinguishing feature of these institutions was the principle of self-instruction under supervision.

Gradually highly-controlled institutions in which young offenders could be reformed and reclaimed were developed. In 1823 a separate convict prison ship for juveniles was introduced. In 1838 the first penal institution solely for young people was opened at Parkhurst. The opening of Parkhurst was applauded as a means of protecting young prisoners. Parkhurst was designed to segregate young offenders from adult offenders and thus prevent young people from being tainted by adults in prison. However its regime was very repressive: prisoners were manacled and confined to their cells for long periods of time except for brief periods of exercise and religious instruction. The new prison was designed to be ‘stern in its aspect, and penal in its character’ (Inspector of Prisons, 1836: 98; Inspector of Prisons, 1838: 112–14). The influential philanthropist Mary Carpenter was a forceful critic of penal regimes, such as Parkhurst. She was convinced that reformation depended on meeting the perceived needs of children for care and support as well as overt discipline. She viewed the causes of crime as being rooted in the deficiencies of working-class family life. Carpenter articulated her views to a House of Commons Committee: ‘I have great objection to calling them [children] even semi-criminal because the word has a moral meaning. I consider the condition they are in as that of extreme neglect’ (cited in Manton, 1976: 14). Carpenter described prisons as the ‘most costly, most inefficacious for any end but to prepare the child for a life of crime’ (Carpenter, 1853: 13). Carpenter promoted a more child-centred approach to youth offending. Carpenter’s views were to gain legal status. She did not believe in allocating specific periods of detention for young offenders; for Carpenter, the goal was ‘curing’ the young person and cures proceeded at varying paces and thus the period of detention must be indeterminate (Radzinowicz and Hood, 1990: 169).

The Juvenile Offenders Act 1847 was the first statute to distinguish between adults and juvenile offenders. Children under 14 years and accused of theft could be tried summarily, subject to their consent. Instead of committing children to prison to await their trials, summary powers of conviction made the process of trial for children quicker and more private. Cases were heard by magistrates in a court in the district where the offence is alleged to have occurred. The sentencing powers of magistrates were quite limited. Other important developments were the Youthful Offenders Act 1854 and the Industrial Schools Act 1857. These Acts acknowledged for the first time that youth offending was a distinct social problem and that children who offended lacked full responsibility for their actions. Both of these Acts introduced the concept of reformatory treatment rather than just punishment. Under the 1854 Act the courts were allowed to sentence any child convicted of an offence to a reformatory school for between two and five years, thus replacing prison with institutions designed specifically for children. Reformatory schools were designed to provide industrial training to juvenile offenders. Reformatory schools were managed by voluntary associations under the inspection of state authorities. They were financed by the state and parental contributions: the courts could order the parents of an offender to pay up to five shillings a week for the care and maintenance of the child, all other costs being met by the state. Reformatories reflected Victorian attitudes to ‘save’ delinquent children from a life of crime. The aim of the Reformatory school was to suppress inappropriate behaviour rigorously but within a family atmosphere suitable for misdirected children (Carlebach, 1970: 72).

Under the 1857 Act children found begging or who had no visible means of subsistence were deemed to be beyond parental control and could be sent to an industrial school indefinitely, though not beyond the age of 15. The purpose of industrial schools was to help vulnerable children before they committed a crime. Industrial schools contrast with reformatory schools in that industrial schools were for potential, rather than actual, offenders. The Report of the Department Committee on Reformatory and Industrial Schools 1896 explained the distinction: ‘[the] inmates of reformatories are always called youthful offenders, and those of industrial schools always children’. The law believed that parents should not be allowed to bring up their child in a way which would almost ensure that the child would become a criminal. The Amending Act 1861 widened the category of children who could be sent to industrial schools to include children begging, and in the company of thieves. Courts could also use their discretion to send a child under 12 years of age who had committed an offence to an industrial school, if they felt that an industrial school would be more appropriate than a reformatory school. The Consolidation Act 1866 widened the category even further to include orphans and children whose parents were in prison.

The Summary Jurisdiction Act 1879 allowed for all offences committed by children below 12 years of age to be tried summarily, except in the case of homicide. The Reformatory Schools Act 1884 allowed for children between the ages of five and sixteen years to be sent to a reformatory school for two years, however this had to be preceded by two weeks imprisonment in an adult prison. The Youthful Offenders Act 1885 allowed for children to be sent to reform school for between two and five years, preceded by two weeks in prison. The view was that the punishment would not take long, however the reform of the child would take years. This Act also allowed for parents to be ordered to pay for their child’s upkeep in reformatory school. The 1855 Act thus represented the first attempt to enforce parental responsibility; this is an issue which will be examined in more detail in Chapter 11. The Probation of First Offenders Act 1887 provided magistrates with the power to release young offenders convicted for the first time of committing a minor offence. However, because no supervision of the young person was required, magistrates did not use this power very much (Morgan, 2007: 203). The 1893 Reformatory Schools Act allowed magistrates to commit offenders to reformatories without the need to send them to prison. The 1899 Reformatory Schools Act abolished the prison element: children could either be sent to prison or reformatory school, but not both.

By the end of the nineteenth century reformatories and industrial schools held more than 30,000 inmates, that is one in every 230 children. However, industrial schools and reformatories were essentially prisons in all but name (Bedingfield, 1998: 462). Also under the 1854 Act magistrates could continue to send juveniles to adult prisons if they so wished. In fact between 1856 and 1875 sentences to reformatory detention formed only 13 per cent of all child commitments to prison. The reformatory school was thus grafted on to the existing institutions of punishment and justice, it did not replace them. Nonetheless it is important to note that, before the reformatory and industrial schools of the 1840s and 1850s, it was impossible to talk with any precision of the existence of young offenders. It was the very existence of the sentencing alternatives of reformatories and industrial schools that enabled juvenile delinquency and young offenders gradually to take on their modern meaning as a clearly identifiable and distinctive social problem.

Developments in the USA

During the nineteenth century in the United States of America, similar efforts were made to separate adult offenders from young offenders. Reformatory and industrial schools sprang up throughout the USA to provide corrective treatment and refuge for delinquent and neglected children. In the USA there was also a concern that adults and children were separated not just at the custodial stage but also at the trial stage. The first court of law dedicated exclusively to children was founded in Chicago in 1899 and allowed for cases of youth offending to be heard in special courtrooms separate from adult cases. The juvenile court was not a criminal court and the rules of criminal procedure did not apply. This court operated in a highly informal manner; unlike the adult courts, accused youth would not be tried in a formal, open and adversarial process. Instead the court aimed to provide children with care, custody and discipline. Accordingly dispositions were based on an examination of the young persons’ circumstances and needs (Morris and Giller, 1987: 11–12). The first juvenile court judge asked ‘why is it not the duty of the state, instead of asking merely whether a boy or a girl has committed a specific offence, to find out what he is physically, mentally, morally … ’(Mack, 1909: 107). Using broad discretion the juvenile court judge was to provide the necessary help and guidance to a young person who might otherwise proceed further down the path of chronic crime (Fox, 1996). The basis of the new juvenile courts was the concept of parens patriae. This is derived from the Chancery Courts which were primarily concerned with protecting property rights, but in this context the concept of parens patriae was developed to encompass the responsibility of the state to act in the best interests of the child (Morris and Giller, 1987: 12). In England for many centuries the Chancery Courts recognised the duty of the Crown to look after the prop

Table 1.1 Important dates in the development of the youth justice system, 1788-1899

erty of lunatics and children. Traditionally the Chancery Court would manage the estate of children whose parents had died until the child was 21 years old, thus setting a legal precedent for court intervention in the lives of children. Accordingly the US juvenile court applied the principle of parens patriae to dealing with young offenders and considered that the young offender lacked proper parental care, not because their parents had died, but because their parents were weak or criminal (Weijers, 1999: 335). Acting in its role as parens patriae, the US juvenile court could take children out of their homes and place them in a reform school without their parents having any say in the matter. By 1920 all but three states in the USA would have a separate juvenile court.

Discussion topic

How have concerns about children’s welfare influenced the development of official recognition that young offenders should be treated differen...

Table of contents

• Contents
• Tables
• Preface
• Part I Historical development of the English youth justice system
• Part II Legal principles underpinning the English youth justice system
• Part III The English youth justice system in practice
• Bibliography
• Index