AYJ Explains: Police, Crime, Sentencing and Courts Bill - Children’s Rights
While the AYJ has numerous concerns across many different aspects of the Police, Crime, Sentencing, and Courts Bill, we have narrowed these down to three principal concerns regarding the impact on children’s rights as set out by the UN Convention on the Rights of the Child (UNCRC). These are the ways in which the Bill fails to treat children as children, will increase the incarceration of children, and exacerbate racial disparities.
A. The UN Committee on the Rights of the Child (CRC) is clear about the need to treat children in contact with the law differently to adults, and minimise contact with the criminal justice system:
“Children differ from adults in their physical and psychological development. Such differences constitute the basis for the recognition of lesser culpability, and for a separate system with a differentiated, individualized approach. Exposure to the criminal justice system has been demonstrated to cause harm to children, limiting their chances of becoming responsible adults.” (UN Committee on the Rights of the Child (CRC) in its General Comment No. 24 on children’s rights in the child justice system)
We are therefore concerned to see multiple measures in the Bill which treat older children as adults, fail to ensure all those who commit crimes under the age of 18 are treated as children, and fail to pay due regard to the distinct needs and best interests of children.
Article 1 of the UN Convention on the Rights of the Child (UNCRC) defines a child as any human being below the age of 18 years, while the CRC highlights in its General Comment No. 24 that “the developmental and neuroscience evidence indicates that adolescent brains continue to mature even beyond the teenage years.” For this reason, we are very concerned that measures in the Bill perpetuate a trend under recent Governments to include older children in measures designed for adults. For example, clause 100 (2) and (5) are aimed at increasing the use of mandatory minimum custodial sentences for 16- and 17-year-olds, while clause 36 around the extraction of information from electronic devices, defines “adult” as “a person aged 16 or over” and “child” as “a person aged under 16”. These measures are inappropriate and out of line with the UNCRC.
The UNCRC also states:
“The child justice system should apply to all children above the minimum age of criminal responsibility but below the age of 18 years at the time of the commission of the offence….Child justice systems should also extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process.”
This Bill misses a key opportunity to fix the injustice of ‘cliff-edge sentencing’ in the criminal justice system that sees those who allegedly committed an offence as a child but turn 18 before their trial being treated as adults by the criminal justice system. This is a significant and growing issue given court delays have been exacerbated greatly by COVID-19. Measures should be introduced to ensure all those who commit offences as children but turn 18 before their hearing are heard and sentenced as children.
A. The UNCRC states:
“States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.” (article 40)
Reforms to criminal records in Clause 163 are therefore welcome. But although the changes make improvements, the childhood criminal record system remains closely tied to the system for adults, and the reforms could go much further. Reforms should create clear distinctions between the treatment of childhood and adult records.
“The scale and magnitude of children’s suffering in detention and confinement call for a global commitment to the abolition of child prisons and large care institutions alongside scaled up investment in community-based services.”
The UNCRC sets out that the arrest, detention or imprisonment of children shall be used only as a measure of last resort and for the shortest appropriate period of time. In the CRC’s Concluding Observations to the UK it urged the government to:
“Establish the statutory principle that detention should be used as a measure of last resort and for the shortest possible period of time and ensure that detention is not used discriminatorily against certain groups of children.”
Custody is not currently used as a last resort for children, or for the shortest possible period of time, and over half of children in custody are Black, Asian, and Minority Ethnic. Measures in this Bill that increase the use of mandatory custodial sentences and increase the length of sentences and the proportion spent in custody will only exacerbate the UK’s failing to meet these standards. Changes to Detention and Training Orders (clauses 132-34) are predicted to reverse the downward trend of the numbers of children in custody, with a projected increase of up to 50 children in custody at any one time.
A. Article 2 of the UNCRC and Article 14 of the European Convention on Human Rights protect citizens from discrimination, and the government must pay due regard to its Public Sector Equality Duty under section 149 of the Equality Act 2010. However, the various Equalities Statements and Equality Impact Assessments that accompany the Bill set out that many of the measures proposed will exacerbate existing racial inequalities in the criminal justice system. The government justifies this as ‘a proportionate means of achieving the legitimate aim of protecting the public.’ However, the government admits there is ‘limited evidence that the combined set of measures will deter offenders long term or reduce overall crime.’ Read our previous guide on how the PCSC Bill will further entrench racial disparity here.
References
The United Nations Convention on the Rights of the Child
UN Committee on the Rights of the Child Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland
UN Committee on the Rights of the Child General comment No. 24 (2019) on children’s rights in the child justice system