Caitlin Lisle^*

Introduction

In March 2013, the House of Commons’ Justice Committee published their report on Youth Justice, highlighting a number of defects within the United Kingdom’s (UK) youth justice system, with special focus on the detention of young offenders. Taken in conjunction with the lack of significant recent substantive developments relating to youth justice rights, it is apparent that an analysis of the application and interpretation of international youth justice standards in the UK would provide a valuable contribution to the debate surrounding the current youth justice system.

The unique structure of power within the UK’s legal jurisdictions leads to a complex and not always harmonious approach to the rights of children and youth justice. As a devolved matter, youth justice is different in each jurisdiction, leading to different levels of protection for young offenders. This article will focus on the effect of devolution on UK compliance with international standards through a critical analysis of legal instruments, policies and cases from the UK national courts and the European Court of Human Rights (ECtHR). First, the situation in the separate legal jurisdictions – England and Wales, Scotland and Northern Ireland - and the UK as a whole and its relation to and interaction with the international obligations imposed by membership of the United Nations (UN) and the Council of Europe will be considered, establishing that the current system is fundamentally flawed and in serious violation of internationally accepted standards of child protection in youth justice. The remainder of the article will explore the debate surrounding the minimum age of criminal responsibility and detention of young offenders, aspects of youth justice which have an important impact on the protection of children’s rights, to provide further support for the conclusion that without a supervisory mechanism, devolution will continue to have a detrimental and divisive effect on the rights of children within the UK.

Application and interpretation of international youth justice rights

The UK is party to a number of international children’s and human rights treaties and conventions, most notably the 1989 Convention on the Rights of the Child (CRC)and its two optional protocols,¹ and the European Convention on Human Rights (ECHR).² As youth justice is a devolved matter, each jurisdiction within the UK has their own administrative powers. This leads to interlocking systems with different levels of compliance with the UK’s international obligations, and the lack of internal mechanisms for creating uniform levels of protection has been repeatedly criticised by the Committee on the Rights of the Child (the Committee). It feels that, in addition to the devolved systems currently in place, the UK could better benefit children within its territory by creating a single mechanism or body above the devolved systems to ensure a uniform level of minimum youth justice rights in the UK.³ The free provision of legal assistance for children charge with a criminal offence is the only aspect of youth justice on which jurisdictions agree, and is provided through the legal aid scheme.

The youth justice system in England and Wales

The system of youth justice in England and Wales is governed by the Crime and Disorder Act 1998 and is overseen by the Youth Justice Board (YJB).⁴ The functions of the YJB focus on the monitoring and provision of youth justice services in England and Wales,⁵ and include the responsibility for creating and maintaining high levels of compliance with the UK’s international obligations, primarily the CRC. The YJB is assisted in carrying out its functions on a local level by local authority youth offending teams to ‘co-ordinate the provision of youth justice services for all those in the authority’s area who need them.’⁶

The minimum age of criminal responsibility (MACR)is 10 years old,⁷ and the UK government does not appear to have any plans to increase this despite the recommendations of the Committee.⁸There is a separate youth court system⁹ with informal hearings presided over by three magistrates trained in dealing with youth cases, although in the cases of serious crimes¹⁰ the youth court may refer the case to the Crown Court for an adult hearing, as in the case of R v T.¹¹ This potential for a child’s case to be referred to the Crown Court raises issues of whether the system has been appropriately adapted as per the obligation of Article 6 of the ECHR to ensure a fair trial and the EctHR ruling that for the trial of a child to be compliant with the Article 6 the proceedings must take into account the child’s age, maturity, and intellectual and emotional capacity to understand the proceedings and their implication.¹² The automatic referral system belies compliance with these principles and the international standards. Sentences for children who are convicted are either community-based or custodial, and when deciding which sentence to impose the court will consider whether the child admitted the crime, the seriousness of the crime, their age and criminal history, whether they appear repentant, and their background and personal circumstances,¹³ and is aided by a pre-sentence report written by the local youth offending team. By taking into account such a variety of concerns the courts are attempting to consider the best interests of the child, a CRC requirement.¹⁴

The youth justice system in Scotland

Youth justice in Scotland is addressed within the children’s hearings system (operating in tandem with the wider justice system) as vulnerable children and those who need care are often the children that commit criminal offences. The Scottish Government believes that to effectively address both their individual needs and the root cause of their criminal behaviour a holistic system is the best approach.

In Scotland, the age of prosecution is now set at 12,¹⁵ although the MACR remains at 8 and until as recently as 28 March 2011 children in Scotland as young as eight could be charged and tried criminally. Children’s hearings were established in 1968,¹⁶ and were refined and expanded upon in 1995¹⁷ in respect of the remit of the hearings, the amount of guidance on procedure and the introduction of new measures to safeguard the child’s interest. The system is currently overseen by the Scottish Children’s Reporter Administration which bears the responsibility of deciding when to refer a child to a hearing, providing suitable facilities for the hearings and enabling full participation by children and their families. This system was recently overhauled under the Children’s Hearings Scotland Act 2011.Hearings are presided over by three members of the Children’s Panel, only take place upon the recommendation of a Children’s Reporter, and provide a variety of outcomes for young offenders which are dependent on both the crime and the child’s situation. Unlike in England and Wales the hearings are focused on rehabilitation and support, rather than punishment. Amongst other outcomes, the Children’s Panel can impose detention orders or movement restriction conditions (via electronic tagging) for serious offences or for less serious offences, which are an indicator of other problems in the child’s life, multi-systematic therapy or intensive support and monitoring through the Children’s Hearing System are available “sanctions”.

The youth justice system in Northern Ireland

Northern Irish youth justice is governed by the Justice (Northern Ireland) Act 2002,¹⁸ and has the aim of protecting the public by preventing youth offending.¹⁹ Most of the system is overseen by the Youth Justice Agency which is an Executive Agency of the NI Assembly created in 2003 on the recommendations of the Criminal Justice Review 2000²⁰ to fulfil the aims set out in s.53 of the Act: to prevent children from offending.

The MACR is, like in England and Wales, 10 years old.²¹ There is a separate youth court, which is more informal than an adult court and is presided over by three magistrates. However, there are exceptions to the use of the youth court system when the child is charged jointly with an adult or has committed a serious offence. As in England and Wales, this raises questions of whether the proceedings have actually been suitably adapted to the needs of the child. There are a number of potential outcomes of a court case, including reparation orders, probation orders, deferral of sentence, discharge, imposition of fines, and detention.

The UK and the UN’s youth justice regulations

The conclusion of the Beijing Rules by the UN in 1985²² was the first major international agreement addressing standard minimum rules for the administration of youth justice to which the UK area party. As the Beijing Rules have no binding authority, the UK does not have a direct obligation to enforce them, although their incorporation into later legislative measures creates this obligation. In order to assess the UK’s compliance with these Rules, it is necessary to examine its compliance with subsequent measures of the UN, especially the CRC.

The CRC was signed by the UK in 1990, ratified in 1991 and came into force in 1992. However, it has not been directly transposed into UK domestic law and so does not have direct effect, resulting in a situation where the rights guaranteed by the CRC may only be enforced through the provisions affecting them. This has a large impact on the application and interpretation of youth justice rights within the UK as, although the courts must take into account the UK’s international obligations, judges cannot prioritise such provisions over national law, even if the national provisions are incompatible. The exception is Wales who, as of2011, became the first jurisdiction in the world to directly transpose the CRC into primary domestic legislation via the Rights of Children and Young Persons (Wales) Measure 2011.²³ This Measure is of great importance as all actions which have a bearing on children’s rights must be made in full compliance with the CRC, or they will be regarded as invalid and breaching both the Measure and the CRC.

The international concept of youth justice can be divided into four general areas: attribution of criminal responsibility,²⁴ adaptation of proceedings, provision of legal assistance for children charged with a criminal offence,²⁵ and deprivation of a child’s liberty.²⁶ The primary youth justice principles are found in CRC Articles 37 and 40. As these provisions are not comprehensive in the guidance that they provide to States, and merely provide fundamental principles, both the UN and the Committee have provided more specific recommendations and rules on the implementation of youth justice rights through the Havana Rules,²⁷ the Committee’s General Comment No.10²⁸ and the Guidelines for Action on Children in the Criminal Justice System,²⁹ all of which apply to the UK.State-specific guidance is also provided by the Committee in their concluding observations after consideration of the regular reports made to them by individual States.

As a State party to all of the above measures, the UK is expected to ensure compliance with those measures within its territory. If the CRC is not directly transposed into national law, States are expected to create and adapt their legislation to ensure that the rights guaranteed within the CRC are enforceable before national courts. In the area of youth justice, the UK is thus obliged to pay particular attention to the Committee’s General Comment No.10 which has much more detail on ensuring the development of a fully comprehensive youth justice system.³⁰ Through this General Comment, the Committee places an emphasis on the importance of applying other principles found in the CRC when creating a youth justice system, namely Articles 2, 3, 6 and 12,³¹ and gives detailed guidance on the standards and core elements that should exist in a comprehensive policy which is internationally acceptable. For example, States should ensure a wide range of measures for dealing with young offenders, and not exclusively or habitually use judicial proceedings, which should be a last resort.³² The UK attempts to fulfil this requirement though a system of pre-court orders³³ used for anti-social children and a system of reprimands and final warnings is used by the police in the occasion of committal of a first or second minor offence.

The Committee’s observations, most recently made after the UK report in 2008,³⁴ are useful in examining what level of compliance the UK has achieved in relation to the CRC and related measures. The administration of youth justice is specifically addressed and the Committee expressed concerns about, amongst others, the MACR, the number of children in custody, and the existence of occasions when a child may be tried in an adult court.³⁵ It recommends that the UK raise the MACR in line with the Committee’s General Comment No. 10,³⁶ to provide a broad range of alternatives to detention and ensure that detention of young offenders is reserved as a measure of last resort, and that young offenders are always dealt with in youth courts irrespective of the severity of crime.³⁷ The UK has not fully taken into account these recommendations in the intervening years, despite the introduction of a private members bill in early 2013 designed to raise the MACR to 12.³⁸ Progress on the Age of Criminal Responsibility Bill has stalled, with a second reading (as of October 2013) yet to be scheduled. Given the Government’s repeated statements indicating that it does not have plans to raise the MACR, it is unlikely that the Committee’s recommendations will be implemented soon.³⁹

The use of multiple youth justice systems is not in and of itself contradictory to the UK’s international obligations, yet the conflicting approaches and mentalities, and the lack of a mechanism for ensuring uniform compliance often leads to a lack of application of the rights supposedly guaranteed by such systems. The enactment of the Rights of Children and Young Persons (Wales) Measure⁴⁰ by the Welsh Assembly and its increasing powers show the approach of the two countries are becoming more distinguishable, which could potentially lead to the creation of a separate youth justice system in Wales and further derogation from the Committee’s recommendations in England. The right of Scotland to retain its own legal and justice system was entrenched in the Treaty of Union 1707, and so, in the current political climate of Scotland, for Westminster to reclaim the right to regulate youth justice would be detrimental to the UK’s collaborative style of governance. Similarly, the Northern Irish jurisdiction was created after Irish independence in 1922 and for Westminster to reclaim powers over youth justice could potentially inflame the fragile political balance and be detrimental to the UK as a whole. These historic political and legal tensions show that at present, and in the near future, the UK cannot realistically implement a fully uniform system for youth justice. It is possible, however, that a non-governmental departmental body may be created to oversee the individual systems according to the Committee’s recommendations.⁴¹ As such, for the UK to refrain from creating such a body is to deviate from its obligation to create a youth justice system with uniform levels of minimum protections, according to Articles 37 and 40 of the CRC.

The UK and the Council of Europe’s youth justice regulations

The Council of Europe (‘the Council’) has not comprehensively adopted binding legislation specifically focused on the issue of children’s rights.⁴² However, the Council members have adopted the ECHR, which is binding and has general application to children as human beings, as well as the non-binding ‘European Rules for juvenile offenders subject to sanctions or measures 2008’ and the ‘Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice and their explanatory memorandum 2010’.

The ECHR and its Protocols contain four rights that are relevant in the discussion of youth justice: the prohibition of torture and inhuman or degrading treatment and punishment, ⁴³ the right to liberty and security,⁴⁴ the right to a fair trial,⁴⁵ and the right to appeal in criminal matters.⁴⁶ Although the UK ratified the ECHR on 8 March 1951, it did not become part of domestic UK law until the coming into force of the Human Rights Act 1998 in all of the jurisdictions in 2000. Prior to this, ECHR rights were not directly effective or enforceable in the UK, and individuals wanting to challenge a breach of their rights had go to the ECtHR in Strasbourg, a lengthy and cumbersome process.

Since ratifying the ECHR in 1951, the UK has subsequently signed and ratified the majority of the additional Protocols, with a notable exception relating to justice being that of Protocol 7.⁴⁷ However, a right to appeal in criminal matters does exist in the UK and did prior to the drafting of Protocol 7– in England and Wales it has existed since 1968,⁴⁸ in Scotland since 1975⁴⁹ and in Northern Ireland since 1980.⁵⁰ Thus, despite the lack of an obligation on the UK to apply the provision, the UK has acted ahead of the trend and by doing so has increased the level of protection for children’s rights in the justice system.

The enactment and implementation of the Human Rights Act 1998 is a vast step forward for the UK’s compliance with the ECHR in the issue of justice rights and in ensuring the compliance of the individual youth justice systems. The main check on UK compliance in this area is the new power granted to high level courts in each jurisdiction to make a declaration of incompatibility.⁵¹ Although the declaration has no power to halt the validity or enforcement of legislative provisions,⁵² and is not yet considered an effective remedy by the ECtHR,⁵³ it is nonetheless a powerful tool of the courts to indicate a need for legislative reform and their intention not to enforce a certain provision in light of its incompatibility with the ECHR. Despite not officially being a regulatory mechanism, the power to make such declarations therefore helps to ensure correct application of rights relevant to youth justice.

After the Human Rights Act came into force, the UK courts became legally obliged to interpret legislation, as far as possible, in line with the ECHR and to take into account decisions of the ECtHR when ruling on relevant issues.⁵⁴ As youth justice is not specifically provided for in the ECHR, the ECtHR approaches such issues generally and by interpreting and applying the rights listed above, such as in Tv United Kingdom⁵⁵ where the ECtHR looked at Articles 3 and 6 to determine whether the age of 10 is too young to attribute criminal responsibility. It was held that in setting the MACR within their jurisdictions, States must take into account the average level of maturity of a child at the proposed age, their predicted maturity and intellectual levels, and their emotional capacity to understand the proceedings and the implication thereof, a ruling which follows a similar approach to Beijing Rule 4.⁵⁶ Providing Westminster, Holyrood and Stormont considered these issues when setting the MACR in their jurisdictions, they will be considered compliant with the rights guaranteed by the ECHR.

In order to promote general children’s rights within the member States of the Council of Europe, the Council has implemented a series of programmes to achieve the promotion, protection and implementation of children’s rights, with a particular focus on international standards and the CRC. The policies do not pay specific attention to the issue of youth justice however, and so States must continue to look to the wider international arena in order to find the minimum standards of youth justice that they must apply within their territory. The remainder of this article explores the minimum age of criminal responsibility and the detention of young offenders in more depth to analyse the extent to which the UK complies with internationally accepted levels of children’s rights in these specific areas.

Minimum age of criminal responsibility

The CRC creates an obligation for States to ensure the ‘establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law,’⁵⁷ an obligation which is intended to act as a legal safeguard for children in the criminal justice system.⁵⁸ In the Committee’s General Comment No. 10 this obligation is expanded upon⁵⁹ to give States more guidance on the imposition of acceptable levels, with the principles therein having been established in line with Beijing Rule 4 which states that the MACR ‘shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.’

The Committee stated that a MACR below 12 years is not considered internationally acceptable, and so States should raise their MACR to 12 and continue to increase this,⁶⁰ with a commendable age being identified as 14 to 16 years.⁶¹ In England, Wales and Northern Ireland the MACR is regulated by a variety of legislative measures and is set at the age of ten.⁶² This level is instantly recognisable as being lower than the age indicated as acceptable and is, alongside Scotland and Switzerland, amongst the lowest MACRs in Europe. In Scotland, the minimum age of prosecution was set at 12 years in 2011,⁶³ but the official MACR remains set at eight years old.⁶⁴ By increasing the age of prosecution Scotland acted in response to the repeated recommendations of the Committee’s General Comment No.10 and Concluding Observations on the UK’s report from 2002 and 2008.

Although the UK is clearly below CRC standards, following ECHR standards, if the governing bodies in each jurisdiction consider the wide range of issues surrounding the setting of the MACR at 10 (in line with the judgment in T v United Kingdom and Beijing Rule 4) when prosecuting youths, the UK will fulfil the standards expected of it in Europe. However, it has been argued that the current levels are inhumane, do not fully take into account the level of a child’s maturity, and that the various governments did not fully consider these issues in face of public pressure to maintain the long-standing MACRs.⁶⁵ If these arguments are true, the UK will have failed in both its CRC and ECHR obligations.

The Committee also stipulated that States should not lower the MACR to12 from a commendable higher age to prevent the deterioration of youth justice rights in countries with high levels of protection.⁶⁶As of 1998, the rebuttable presumption of doli incapax that a child between the ages of 10 and 14 years is incapable of committing a criminal offence was abolished in England, Wales and Northern Ireland.⁶⁷ This presumption required the prosecution to supply evidence to the court that demonstrated the child’s individual capacity to understand that the act was criminally (and, arguably, morally) wrong in every case of a child between the ages 10 and 14 years.⁶⁸ By repealing the doli incapax principle, the UK Government has refused to accept the increasing view of childhood, not as a biologically and chronologically determined state, but as a ‘moving image’ subject to flux.⁶⁹ The abolishment of this presumption, with no equivalent period of transitional criminal responsibility being implemented as a replacement,⁷⁰ has been highly criticised by the Committee as it effectively lowers the age at which criminal responsibility may be attributed to a child from 14 to 10, with the result that children between 10 and 14 are now being deprived of their liberty.⁷¹ Despite repeated recommendations to raise the MACR and review the abolishment of the doli incapax presumption, the UK Government has still not done so and states that it does not intend to raise the MACR in England and Wales,⁷² leading to a lack of proper application of the youth justice principles in CRC Article 40. Notably, the minister responsible for youth justice in Northern Ireland confirmed his commitment to raising the MACR in line with international recommendations,⁷³ a move which, if implemented, will further fragment the UK’s approach to its obligations under international law.

The number of, and different types of, legislative measures regulating the MACR in England, Wales and Northern Ireland shows that, despite unity in the age chosen, there is disparity and discord in the policies and motivations behind choosing the age of 10. This variety of legislative authority has also led to some confusion over what defences and exceptions are available to the child, if any. Despite the categorical legislative abolition of the doli incapax presumption, it has been the subject of subsequent proceedings⁷⁴ to determine whether both the presumption and the defence were abolished, or if the presumption was removed while the defence remained, which emphasises the discordant approach taken to regulation of the MACR in the different jurisdictions. In R v T⁷⁵ the House of Lords clarified this issue by upholding the decision of the Court of Appeal that when the Crime and Disorder Act 1998 was passed the concept of doli incapax was intrinsically linked with the presumption,⁷⁶ and by ruling that ‘having regard to the mischief which section 34 of the [Crime and Disorder Act 1998] was designed to obviate and to its consequences…on a true construction section 34 had abolished the defence, as well as the presumption, of doli incapax.’⁷⁷ This confirms that the UK has not fulfilled its duty to increase the MACR, and to refrain from effectively reducing it.

Despite the abolition of this principle, the UK courts have subsequently held that in cases of recklessness, a subjective test is to be imposed to assess the culpability of a defendant, replacing the objective test previously used where the offender (regardless of age) was simply compared to the ‘reasonable adult’.⁷⁸ The test of R v G states that ‘if a defendant, due to his age and personal characteristics, genuinely did not appreciate or foresee the risks involved in his actions, then he could not be regarded as culpable so as to be guilty of the offence.’⁷⁹ This test, although not applicable in all criminal prosecutions, provides some protection for children accused of criminal offences by providing grounds for excluding criminal liability.

The Committee also expanded the requirement to provide a guarantee of protection for the rights of a child when it cannot be established that the child is at, above, or below the MACR, by asserting that they may not be held criminally responsible where to do so could potentially breach the requirements of CRC Articles 37 and 40.⁸⁰ In Scotland, this protection is not guaranteed as despite statutory provision that after enquiring into the true age of the child, the age that a court declares a child to be is deemed the true age of the child,⁸¹ there is no guidance on the procedure if the child’s true age cannot be conclusively determined. The same provision appears in English, Welsh and Northern Irish law,⁸² with guidance for the determination of age given by the High Court in R (on the application of R) v London Borough of Merton.⁸³ By requiring an assessment of a wide range of factors in order to determine age of a child offender, England, Wales and Northern Ireland provide partial application of this protection, yet as a whole, the UK does not sufficiently apply this principle in the area of youth justice.

In T v United Kingdom the ECtHR held that the age of 10 is not so young as to be disproportionately different to the MACR in other European countries, and so the attribution of criminal responsibility to a 10 year old is not, in and of itself, a breach of ECHR Article 3 (the prohibition of torture and inhuman or degrading treatment and punishment).It was also held that holding a trial of a 10 year old child is not in and of itself a violation of Article 6, the right to a fair trial.

Although devolution of powers works well in other areas, in respect of the MACR it does not seem to be the most appropriate path in light of the UK’s international obligations and duties. The extensive range of legislative measures used to implement the MACR and the wide differences in policy between jurisdictions mean that, although the UK has established a MACR in each of its jurisdictions, the substantial differences signify that a full and correct interpretation of CRC Article 40(3)(a) has not been made, requiring an extensive review on reformation of the MACR in each jurisdiction to ensure full CRC compliance.

Detention of young offenders

The detention of young offenders is primarily governed internationally by the principles set down in CRC Article 37, with further guidance on the interpretation of those principles found in the Committee’s General Comment No. 10.⁸⁴ Also relevant in the setting of minimum levels of rights for young offenders in the UK are the Havana Rules,⁸⁵ ECHR Article 3, and the ECtHR ruling in Güveç v Turkey that depriving a child of their liberty should be a measure of last resort⁸⁶ (made in compliance with Beijing Rule 19).⁸⁷

In England and Wales custodial sentences for youths are regulated by the Powers of Criminal Courts (Sentencing) Act 2000, which gives judges strict guidelines on when detention may and must be imposed.⁸⁸ For example, a sentence of detention may not be given unless the severity of the offence is high, the child is a repeat offender and detention is the only suitable way to protect the public from the child repeatedly offending. Detention is also dependant on the age of the child when they committed the offence –under fifteen’s may only be detained if they are persistent offenders, and under 12’s may only be detained if the Secretary of State gives a special dispensation and to do so would be the only way to prevent further offending. These strict rules on detention and the range of alternatives available to the court prima facie appear to ensure compliance with the CRC requirement that detention be reserved as a measure of last resort, yet the reality is quite different, as can be seen in both the Observations of the Committee and in the high numbers of young offenders in custody.

The Committee remains concerned at the high numbers of young offenders in custody, and recommends that to combat this, the UK needs to adopt a broader range of alternatives to detention and to enshrine CRC Article 37(b) in statute.⁸⁹ In 2008-2009, 4963 children were remanded in custody⁹⁰ which accounted for 2.5% of the total prison population of England and Wales, placing England and Wales as the seventh highest in Europe for child detention.⁹¹ Also of concern is the fact that during 2007 513 children aged 12 to 14 were detained, of which 465 would not have been prior to 1998 because of the doli incapax presumption,⁹² and that in 2009, 349 children received custodial sentences despite not having committed a previous criminal offence, with 50%of these children subsequently receiving community sentences in place of detention or being acquitted when their case is reviewed.⁹³ However, it must be noted that according to data released in November 2012⁹⁴ there has been a significant downward trend in the number of children detained in custody (an overall fall of 48% from 2007 to 2012), but, given that the average sentence length has increased from just 10 months to a year, these figures clearly show a non-compliance with the guidance to judges in s.100(2) Powers of Criminal Courts (Sentencing) Act 2000, and demonstrate that UK judges do not always fully appreciate that they are sentencing children. As these figures show, detention of young offenders is not always used as a measure of last resort in England and Wales, and as such there is a breach of CRC Article 37(b).

In Scotland, if it is deemed necessary for the offending child to be supervised, a ‘Supervision Requirement’ will be made, with an annual review until the child reaches the age of 18. In the majority of cases, the child will be supervised by a social worker while remaining at home, but the hearing may decide the child needs to be detained in secure accommodation or a young offender’s institution.⁹⁵ Due to the nature and philosophy of the children’s hearings system it should be the case that few children are detained, yet 169 children were imprisoned in Scotland, the 10th(of 47 countries) highest rate in Europe.⁹⁶

In Northern Ireland detention of young offenders is provided for and governed by the Criminal Justice (Children) (Northern Ireland) Order 1998 ss.39-44, which provides a default sentence length of six months, with a possible extension of up to two years. Although the deciding magistrates have a range of alternatives to detention in accordance with the Committee’s recommendation in 2008,⁹⁷ young offenders still form 1.2% of the total prison population of Northern Ireland, which, although much lower than in England and Wales, is still high compared to the rest of Europe where in many countries the youth prison population forms less than 0.5% of the total prison population.⁹⁸ The imposition of a default sentence length for detention in a Juvenile Justice Centre is contrary to the requirement of CRC Article 37(b) that ‘detention or imprisonment of a child shall be…for the shortest appropriate period of time.’The default length of six months is also the minimum length provided for by s.39 of the Criminal Justice (Children) (Northern Ireland) Order 1998, which means that, although part is spent under supervision within the community, the deciding magistrates are prohibited from sufficiently taking into account a child’s right not to be arbitrarily deprived of their liberty by the imposition of a standard sentence and not allowing consideration of a shorter sentence.

The issue of detention in the UK was discussed in a European context by the ECtHR in T v United Kingdom, where the detention of two under-12swas considered in light of the ECHR. Article 3 was not held to be breached as a period of punitive detention does not objectively amount to inhuman or degrading treatment, and the ECHR ‘did not prohibit States from subjecting a child or young person who had been convicted of a serious crime to an indeterminate sentence, which allowed for his continued detention where necessary for the protection of the public.’⁹⁹ As the Secretary of State made the decision to detain the children, and not the court system, there was no opportunity to present evidence against a sentence of detention, and Article 6(1) was breached, as continued detention should be decided by an impartial judicial body, and not part of the executive. This system is still place, meaning that any such decisions by the Secretary of State continue to breach Article 6(1).

In 2009 in England and Wales, 22% of children in custody were reported as showing evidence of self-harm,11% had attempted suicide and in the past 21 years 29 children have died in custody, of which 28 were through suicide.¹⁰⁰ Data provided by the Government in 2002 covering a sample four-year period from 1998 to late 2001 indicates a steady rise in the number of reported self-harm incidents, and the number of suicides in detained children between 15 and 17 years of age.¹⁰¹ These figures show that the mental state of many young offenders is consistently poor, and indicate that the conditions they are held in are not conducive to optimal mental health. By not caring more carefully for the mental state of young offenders, the UK is allowing breaches of Havana Rule 31,which states that young offenders have the right to facilities and services that meet their health requirements (which includes their mental health), and CRC Articles 19(1), 24(1),and 27(1), which collectively impose a duty of care upon the UK for the physical and mental health of children in detention. This conduct is also potentially a breach fork Article 37(a) and ECHR Article 3 which prohibits degrading and inhuman treatment, as such treatment is a likely cause for such high levels of depression in child detainees. Although not a binding measure, this low level of care contravenes the European Rules that children in detention should be treated in a manner that does not aggravate the suffering inherent to it, and have their mental integrity protected.¹⁰²

As with the MACR, devolution does not seem to be the best path for detention of young offenders in the UK. The wide range of differences in policy and regulation mean that, although the UK claims to impose detention as a measure of last resort, oftentimes this is not the case, as can be seen in the high numbers of child detainees and the high rankings of the UK jurisdictions for detaining young offenders on a European scale. Of more concern are the commonplace breaches of the UK’s duty to maintain and promote the health of children in its care, and an immediate overhaul of the treatment of children in custody is necessary to remedy the UK’s breaches of its international obligations in this area and to prevent further mental and physical harm falling upon those children who are currently in custody.

Conclusion

It can be seen that the UK applies and interprets internationally advocated youth justice rights to varying degrees of compliance with the international obligations of the UN and Council of Europe, yet it does not sufficiently fulfil any of these obligations to the Committee’s satisfaction. Any variation in compliance within the UK reflects upon the whole State, and consequently the failure of a single jurisdiction to fulfil the obligations imposed on the UK results in a lack of compliance for the whole State. This effect can be seen across the whole spectrum of youth justice rights, and particularly in the issues surrounding the MACR and detention of youth offenders in each of the jurisdictions.

The devolution of powers to administrate youth justice from Westminster to Holyrood and Stormont, although politically desirable, has been shown to be detrimental to the UK’s international standing in this area. This is primarily due to a lack of a body or mechanism that supervises the separate systems and ensures the implementation of the correct standards within the UK territory. For the UK to successfully and consistently raise the standards of youth justice currently implemented it is necessary to create such a supervisory body or mechanism with the power to ensure full compliance with, at least, the minimum standards expected, without which youth justice rights will not become a reality to the children of the UK.