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Les politiques de la jeunesse au Royaume-Uni et en France

 | 
Sarah Pickard
, 
Corinne Nativel
, 
Fabienne Portier-Le Cocq

Des politiques axées sur la répression

The Handling of Youth Offending in England and in France

Le traitement de la délinquance juvénile en Angleterre et en France

Elizabeth Gibson-Morgan

Résumé

No civilized society regards children as accountable for their actions to the same extent as adults”. Protecting children and young people against the full rigour of criminal law is indeed beyond argument. One question that immediately comes to mind is whether a young offender is to be considered as a child or not, the latter being defined by the 1989 United Nations Convention on the Rights of the Child 1989 in its Article 1 as: “a human being below the age of eighteen”. It states more precisely that: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”. This definition reflects the idea that emerged in France with the famous Ordinance of February 1945 according to which children who commit offences are first of all vulnerable people. The current analysis will deliberately focus on a new characteristic of the United Kingdom Youth Justice System, that is new measures such as parenting orders, curfews, or even ASBOs that can apply to children aged 10 or under who have not committed any criminal offence - nor have they been sentenced following a conviction. The targets of this more than ever repressive policy are very young children considered at high risk of anti-social behaviour – who are not in fact young offenders.
Although the Convention of 1989 is unequivocal about how children should be treated and does promote common strategies for dealing with juvenile delinquency, the United Kingdom and France have adopted policies that tend to undermine legal safeguards.
Both countries, where a collapse of confidence in the rehabilitative ideal can be felt, have adopted an explicitly punitive orientation although there are significant differences between them.

“Aucune société civilisée ne tient un enfant pour responsable de ses actes de la même manière qu’un adulte”. Protéger les enfants et les jeunes suspectés, accusés ou convaincus d’actes délictueux de la rigueur implacable du droit pénal tel qu’il s’applique aux adultes est une règle incontournable. La première question qui se pose est de savoir si le jeune délinquant doit être considéré comme un enfant, ce dernier étant défini par la Convention des Nations unies relative aux Droits de l’enfant de 1989 en son article premier comme “tout être humain âgé de moins de dix-huit ans, sauf si la majorité est atteinte plutôt en vertu de la législation qui lui est applicable” et de quelle capacité de discernement il disposait au moment où l’acte délictueux a été commis. Cette Convention de l’ONU réaffirme le principe directeur qui a vu le jour en France avec la célèbre Ordonnance du 2 1945 relative à l’enfance délinquante selon laquelle un enfant qui commet une infraction est d’abord et avant tout un être humain vulnérable dont le traitement doit être proportionné non seulement à l’infraction mais aussi à sa situation et à son âge. La présente analyse portera essentiellement sur les nouvelles mesures répressives telles que celles prises par les tribunaux contre les incivilités en Grande-Bretagne qui peuvent s’appliquer à de très jeunes enfants de dix ans ou moins alors qu’ils n’ont commis aucune infraction. Ils sont une cible privilégiée pour les nouvelles politiques répressives qui visent à neutraliser l’enfance prédélinquante. Dans ce domaine, le Royaume-Uni, comme la France s’éloignent aujourd’hui dangereusement des droits énoncés dans la Convention de l’ONU de 1989 encadrant les mineurs. Cette dérive répressive qui tend à perdre de vue l’âge des personnes concernées mais aussi l’équilibre délicat entre sanction et éducation au nom du tout sécuritaire, remet en cause les droits fondamentaux des enfants et des jeunes suspectés ou accusés d’infraction à la loi pénale dont les actes répréhensifs ne sauraient justifier la négation de leurs droits fondamentaux

Texte intégral

1No civilized society regards children as accountable for their actions to the same extent as adults” (Howard 1982: 343). Protecting children and young people against the full rigour of criminal law – as Professor Howard from the Faculty of Law of Sydney University advocates – is indeed beyond argument, all the more so since “criminal law is an overtly adult context into which the child does not easily fit” (Bandalli 2000: 81).

  • 1 United Nations General Assembly, Document A/RES/44/25 (12/10/1989), Part I, article-1.

2One question that immediately comes to mind is whether a young offender is to be considered as a child or not, the latter being defined by the 1989 United Nations Convention on the Rights of the Child1 in its Article 1 as: “a human being below the age of eighteen”. It states more precisely that: “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”. This definition reflects the idea that emerged in France with the famous Ordinance of February 1945 according to which children who commit offences are first of all vulnerable people. Yet, individuals under eighteen are far from representing a homogeneous category. Their levels of understanding differ enormously and criminal law seeks to reflect this in its approach to criminal responsibility for those who have not reached the age of majority. As he/she grows up, a child usually acquires some form of judgment, and it is precisely this judgment that explains that minors are treated differently when it comes to criminal liability. In France, unlike in England and Wales, there is no minimum age of criminal responsibility, in the sense that there is no specific age under which a juvenile cannot be prosecuted.

3Although most human beings gain some degree of judgment at a different age, the law has guidelines on how to deal with young offenders, starting with the most widely adopted international legal text, the United Nations Convention on the Rights of the Child (1989). Although the Convention of 1989 is unequivocal about how children should be treated, its implementation by the nation states that have ratified it is far from being straightforward and complete. It was ratified by France as early as 1990, then by the United Kingdom on 14 December 1991, although both countries do not always perceive it as a binding instrument and have applied it only partially. In fact, the 1989 Convention was ratified by the United Kingdom under the Conservative government of John Major, but not without reservation on the part of the British Government, especially regarding the separation of children from adults in custody under Article 37 which makes plain that custody should be used only as a measure of last resort, and that children and young people should “be separated from adults”. Indeed, young offenders need to be considered as a separate category of offenders and therefore must be placed in different institutions.

  • 2 In spite of efforts to secure legal uniformity with the setting-up of the new United Kingdom Suprem (...)

4This article argues that England,2 and to a lesser extent France, through their growing punishment-oriented approach based on the assumption that young offenders are responsible for their own actions, tend to deny them some of their fundamental rights as defined by international conventions and treaties. John Muncie and Barry Goldson (2006: 4) have identified “a growing unease with the recurrent scapegoating of young people, the consolidating reliance on punitive interventions and the further denial of children’s rights”. Thus, this article focuses on the various forms that the erosion of legal safeguards in handling young offenders in England and France has taken. It tries to show that beyond the deprivation of young people’s liberty what is really at stake is the denial of their status as children.

A fundamental shift of policies and practice via a plethora of new laws and sentences for young offenders

  • 3 Although the United Nations Convention on the Rights of the Child states that children or young peo (...)
  • 4 The United Nations for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN General A (...)

5At the national level both in the United Kingdom and in France there was a proliferation of laws dealing with children and young people between 2000 and 2007. The evolution of the legal language used in these laws concerning children and young people is significant. In England and Wales, the various statutes which make provision for young people use different terminology, for example “juvenile” – “young person”, “child”, “young offender”. By a practice direction – that is a rule of procedure established for specific courts – dated February 2000, young persons when tried in the Crown Court3 are to be called “young defendants” and in the family courts they are generally referred to as “children”. In France, the term “minor” – “mineur” – instead of “child” – “enfant” – is used and the French Civil Code defines this category of people as “an individual of either sex who has not yet reached 18 years of age”. International treaties and conventions for their part provide unequivocal definitions of young people involved in criminal matters, for example the United Nations Minimum Rules for the Administration of Juvenile Justice (1985) – also known as the Beijing Rules – Article 2(2 c) – state that: “A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence” (United Nations 1985). The semantic debate is more important than it seems at first sight as it reflects how young offenders are perceived by society. Sharon Moore (2000), a former Probation officer and Youth Justice Manager described how the case involving two children under ten – Robert Thompson and John Venables – in the murder of the two-year old James Bulger – in 1993, was covered by the media in a way that “did nothing to discourage the public vilification and de-humanisation of children and young people” (Moore 2000: 116). The impact of such terminology – and perception –can have a devastating effect on young people involved in criminal matters as they tend to stigmatize them and prevent them from having any chance of being rehabilitated. The United Nations Guidelines on the Prevention of Juvenile Delinquency warn that: “labeling a young person as ‘deviant’, ‘delinquent’ or ‘pre-delinquent’ often contributes to the development of a consistent pattern of undesirable behaviour by young persons”.4

6The ambiguities and hesitations of the United Kingdom in the handling of children and young people can be seen in the pieces of legislation introduced in the country in the 1980s and 1990s starting with the Children Act 1989 – in the drafting of which Lady Hale (currently a judge of the United Kingdom Supreme Court) played a key role. It significantly improved the status of children as judges were to give priority to their interests and it also put the emphasis on the welfare of children allegedly involved in criminal activities. Indeed, section 1(1) of the 1989 Act provides that the child’s welfare shall be the court’s paramount consideration in any proceedings under that Act. Not only was the Children Act 1989 enacted the same year as the United Nations Convention on the Rights of the Child, but it also best evokes the spirit of the UN Convention. In addition, some ten years afterwards, the United Kingdom passed the Human Rights Act 1998 which incorporated another fundamental convention into English domestic law: the European Convention on Human Rights and Fundamental Freedoms 1950. While it is not specifically directed at children it applies to them as it does to adults and is a crucial safeguard for children’s human rights. More precisely, Article 3 – which prohibits the use of torture – and Article 8 – which protects private and family life – are among the main provisions that have been widely used for children and young people. Nevertheless, that very year – 1989 – saw, paradoxically, a significant change with the disaggregation of the previously combined care/offence jurisdictions of the English juvenile courts. A separate care jurisdiction was established with its own Family Proceedings Court, leaving the Juvenile Court, which was soon to be renamed Youth Court, to deal exclusively with criminal matters.

  • 5 L’enfance délinquante.
  • 6 Juge des enfants.
  • 7 The Perben Law of 2002 establishes general principles and a programme for the French criminal justi (...)

7The system as a whole has been so significantly altered since 1998 – one year after the landslide victory of New Labour and its ambitious package of constitutional reforms and reforms of the English youth justice system – that it has been referred to as “the New Youth Justice”. The Labour party fulfilled to a fairly large extent its pre-election promise to be “tough on crime and tough on the causes of crime” which led to a marked increase in the use of custody. Although the United Nations Convention on the Rights of the Child promotes common strategies for dealing with juvenile delinquency, England and France have adopted different – and sometimes paradoxical – responses regarding the treatment of repeat young offenders. A major paradox is indeed that England has on the one hand one of the most prolific infrastructures of professional children’s rights and advocacy services anywhere in the world, and on the other hand, a growing number of children living in poverty, and a criminal justice system that is amongst the most punitive in the world. As for France, current French law on juvenile justice originated in the immediate aftermath of World War II and, indeed, is still governed by the Order of 2 February 1945 on child delinquency,5 which stipulates the sentences which may be applied to infants. This Order is based on the principle that educative measures have to take precedence over punitive ones. This Order based on a new rehabilitative and paternalistic model introduced the concept that education prevails over punishment, together with a system of specialist courts and the extenuating circumstance of the offender being under-age. Above all, it created a new category of judges specialized in youth delinquency – the Juvenile Court Judge6 – that were to play a central role in the handling of young offenders. Since then, however, no less than five statutes have altered the Order of 1945 towards a harsher treatment of offenders starting with the Law of 9 September 2002 – more widely known as the Perben Law.7 The right-wing front-runner Jacques Chirac in the run-up to the 2002 French Presidential election championed the American slogan of “zero tolerance” of crime, while the Socialist candidate, Lionel Jospin, adopted a French version of the Blairite slogan “tough on crime and tough on the causes of crime” used in the United Kingdom General Election campaign. The French youth justice system has in many respects become harsher and more repressive than it used to be – in line with the more punitive approach in England and Wales. Both England and France, where a collapse of confidence in the rehabilitative ideal can be felt, have adopted an explicitly punitive orientation although there are significant variants between the two countries.

The erosion of legal safeguards in handling young offenders in France and England

8France and the United Kingdom have conventional obligations and responsibilities in accordance with international standards, treaties and rules, but they have also enacted numerous national statutes that serve as a legal framework regulating the handling of young offenders. Today in France and England, children and young people who commit an offence are considered to be more of a threat than to be people in need, and the governmental priority is to protect society. Part of the problem is that youth justice tends to operate in a climate of public opinion that shapes the options available to youth courts. Thus, in the United Kingdom, the 1990s saw a dramatic swing in youth justice policy, following the murder, already mentioned, of a toddler James Bulger in 1993 by two ten-year-old boys. The James Bulger case became the epitome of a growing – and worrying – phenomenon in England, but also in France, of not necessarily an increasing number of young people committing crimes but of young people becoming offenders at an earlier age and resorting to greater and greater violence. This case, and the legislation that followed, led to a renewed emphasis on individual responsibility, earlier intervention, faster procedures from arrest to sentence, and the use of custody for young offenders in England.

9Thus, one key characteristic in the current handling of young offenders in England and France today is the paramount importance given to the notion of responsibility.

The prioritizing of the responsibility of children and young offenders

  • 8 UN Minimum Rules for the Administration of Juvenile Justice: the Beijing Rules, A/RES/40/33, 1985.

10In the United Kingdom, the White Paper published by the new government of Tony Blair in November 1997 – entitled – “No More Excuses – A New Approach to Tackling Youth Crime in England and Wales” – paved the way for the Crime and Disorder Act 1998 that significantly altered youth justice in the country. It was to introduce the most radical reform of the youth justice system in the United Kingdom for fifty years. The 1997 White Paper put the emphasis on the notion of responsibility stating that “Children above the age of criminal responsibility are generally mature enough to be accountable for their actions and the law should recognize this”. Yet, what was not clearly determined was the real “age of criminal responsibility” all the more so as the White Paper included a number of provisions concerning “children under ten”. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice are very clear. Under Rule 4-1, it is said that “If the age of criminal responsibility is fixed too low or if there is no lower age at all, the notion of responsibility would become meaningless”.8

  • 9 Law No 2002-1138.

11The French Law of 9 September 20029 aimed at reinforcing the responsibility of young offenders. It established general principles and a new programme for the French judicial system, introducing a tougher criminal response to juvenile delinquency. To a certain extent, it was an answer to the preoccupations of the police that very often felt helpless in the face of minors confident that they would receive no punishment and therefore developed a strong sense of impunity. Yet, although this Law has brought changes that can be analysed as a trend towards greater severity – with the introduction of fast-track measures, new types of penalties known as “educational sanctions”, as well as a new set of closed educational centres – the original principles of the 1945 Order have nevertheless been officially maintained.

  • 10 Criminal Division of the final Court of Appeal, 13/12/1956.

12One of the fundamental questions that need to be raised in the handling of young offenders is whether they have the capacity to fully appreciate the consequences of their actions. Criminal liability does not have much sense if one is deprived of judgment. The sole criterion to define the minimum age of criminal responsibility in France is that of moral discernment, which may vary depending upon the maturity of the child and the nature of the offence committed. The 1945 Order provides that the judicial response should vary according to the minor’s age. It states that only minors capable of understanding can be regarded as criminally responsible. The criminal concept of understanding, which is applied on a case-by-case basis, involves determining whether the child was able to “understand and intend” the offence with which he or she is charged. Depending on their age, some sentences may not be used, but in order to inflict any measure, the child’s judgment must be proved.10 The French Penal Code stipulates under Article 122-8 that any infant may be liable to criminal responsibility if he or she possesses judgment.

  • 11 L’excuse de minorité.

13In France, from the age of understanding to the age of 10, minors can be tried by a criminal court, but no penalties can be imposed on them. On the other hand, a youth court can order educational measures such as supervision of the incriminated minor in his/her family – Children older than 13 may be subject to much the same kinds of penalties as adults, yet, because education must prevail over punishment, they are exceptions. Besides, until recently, young offenders under 16 saw the severity of their penalty mitigated on the grounds of youthfulness11 (not being 18). It meant that any jail sentence would automatically be reduced by half. More recently, the French Law of 10 August 2007, that puts the emphasis on the fight against re-offending, has abolished the automatic use of a mitigated penalty for persistent young offenders aged 16 to 18. In fact, judges can still decide to mitigate the penalty on grounds of youthfulness but they have to justify it in their judgment.

14Similarly, until the Crime and Disorder Act 1998, English law left it up to the courts to decide whether a child could be criminally responsible. In England and Wales, some children are exempt from criminal liability. It is necessary to distinguish between two age groups, that is to say children below the age of ten and children between ten and fourteen. Children under ten are not considered criminally responsible. A child below the age of 10 cannot be convicted of a criminal offence – under Section 50 of the Children and Young Persons Act 1933. A child who commits a serious offence may be taken into care by the Local Authority, but it is a civil, not a criminal matter. The Law states that a child who commits a crime under the age of 10 needs the protection and support of social workers, rather than deserving the punishment and stigma of a criminal conviction. Until the 1998 Crime and Disorder Act, children between the ages of 10 and 14 were presumed not to understand the full consequences of their actions. They could not therefore be convicted of crime when it could be shown that they knew that what they were doing was seriously wrong. But in the 1990s – following the Bulger case – some regarded lowering the age of criminal responsibility as the best way to deal with the new features of juvenile delinquency.

  • 12 Doli incapax is a Common Law – non-statutory – principle that has historically been used to describ (...)
  • 13 Home Office White Paper, 27 November, 1997, No More Excuses – A New Approach to Tackling Youth Crim (...)

15Thus, a child between 10 and 14 can now be convicted of a crime. Indeed, Section 34 of the Crime and Disorder Act 1998 – announced in the 1997 White Paper – abolished the common law presumption that a child between 10 and 14 was doli incapax12 meaning that a child was not capable of committing a crime because he or she did not know the difference between right and wrong. The presumption of doli incapax used to protect children from the detrimental effects of the enforcement of criminal law. As the Home Office mentioned in the 1997 White Paper: “To reinforce responsibility, the government will abolish the English Common Law presumption of doli incapax”.13 In fact, under the present law, a child over 10 but younger than 14 can be guilty of an offence but only if, in addition to doing the prohibited act with such fault as is required in the case of an adult, he or she knows that what he is doing is “seriously wrong”. It should be borne in mind, however, that Section 34 of the Crime and Disorder Act 1998 places juvenile defendants in the same position as adults, but only as regards establishing fault. Special procedures and safeguards still apply as regards the trial process and the giving of evidence of young people. Yet, the abolition of the presumption of doli incapax could have serious consequences. As Lorraine Gelsthorpe and Alison Morris have pointed out (1999: 213) “The importance of the presumption lay in its symbolism, it was a statement about the nature of childhood, the vulnerability of children and the appropriateness of criminal justice sanctions for children”. Beyond putting an end to a strong symbol and a significant indicator of the perception of childhood, the abolition of the presumption of doli incapax could expose children and young people to the full criminal process at an earlier age than in most European countries.

  • 14 She took up her new post in March 2010. She is a former Director of Children’s Services at Gateshea (...)
  • 15 Scottish Government press release, Criminal age to be raised to twelve, March 2009.
  • 16 European Social Charter European committee of Social Rights, conclusion, XVII-2, vol. 2, chapter 18 (...)
  • 17 UN Minimum Rules for the Administration of Juvenile Justice, A/RES/40/33, 1985.

16The Children’s Commissioner for England, Maggie Atkinson,14 recently proposed to raise the age of criminal responsibility in England from 10 to 12. While the Scottish government has announced its intention to raise the age of criminal responsibility in Scotland from 8 to 12 years-old,15 there has been no similar move in England and Wales where at 10, the minimum age is one of the lowest in Europe and this has been described as “manifestly too low”.16 The provisions of the Crime and Disorder Act 1998 regarding the minimum age of criminal responsibility have been highly criticized and are still very controversial. They were denounced soon after their implementation by Barry Goldson (2000: 9), who wrote: “The abolition of the long-established rebuttable presumption that a child is doli incapax – as provided by the Crime and Disorder Act 1998 – represents a fundamental erosion of legal safeguards in respect of children in criminal proceedings. Indeed, the minimum age of criminal responsibility in England and Wales is not compatible with Rule 4(4-1) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) which requires that the age of criminal responsibility should not “be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”.17 However, unlike the United Nations Convention on the Rights of the Child (1989) which is legally binding on all members of the United Nations, the Beijing Rules can only provide guidance to states – they cannot compel states to abide by their rules and cannot sanction them. It also seems difficult to reconcile the English rule with the European Convention on Human Rights and especially its well-known Article 6 that guarantees everyone a fair trial; indeed, children and young people may not always have the capacity to stand trial.

17Yet, under the current legislation in England, as soon as young people are considered – old enough/mature enough – to be responsible for their actions, it is felt acceptable for them to be held accountable in law for what they have done; priority is therefore given to the acts they have committed rather than to their status as children.

18Therefore, the New Youth Justice System in the United Kingdom has moved away from certain international legal instruments – notably the Minimum Rules of the Administration of Juvenile Justice which place the emphasis on the fundamental objective in its Article 5-1 in handling youth offending that is to promote the well-being of the juvenile and apply the principle of proportionality when sentencing them, that is to say not only considering the gravity of the offence but also the personal circumstances of the child or young person. The fundamental problem with the current youth justice system in England is very well encapsulated by a former Probation Officer, Sharon Moore (2000: 125): “The government’s current approach to youth justice treats children and young people as offenders first and children second”. Hence, the importance given to sanctions. So a second major characteristic in the handling of young offenders in the United Kingdom, but also to a certain extent in France, is the importance given to sanctions.

Sanctioning young offenders more severely

  • 18 “If the health, safety or morality of a non-emancipated minor are in danger, or if the conditions f (...)
  • 19 When the juvenile court was first set up, a directorate for Correctional Education was created at t (...)

19In France, French juvenile court judges have a dual competence: criminal in the case of a young offender, based on the Order of 2 February 1945, and civil when protecting a child in danger, based on Articles 375 ff. of the Civil Code.18 In both cases, the measures the judge decides on are essentially educational: the 1945 Order gives priority to educational measures over criminal sanctions, and states the right to education for young offenders.19

20For many years in France juvenile court judges tended to open a file for educational assistance rather than a criminal file whenever possible, based on the idea that a young delinquent was above all a child in danger. Therefore, although the prosecutor has the legal power to launch criminal proceedings and compel a minor to appear before a judge, until recently, he/she actually seldom exercised this right.

  • 20 A decree of 05/01/2004 organises this training.

21Yet, since the adoption of the Law of 9 September 2002 – setting automatic minimum sentences for repeat offenders – children aged 10 to 13 have been subject to “educational sanctions”. They represent an intermediate solution between punishment on the one hand, and certain measures such as confiscation, prohibition to revisit the scene of the crime, community service or compensation on the other hand. The second part of Article 2 of the 1945 Order was amended to read: “They (juvenile courts) can, nevertheless […] either impose an educational sanction for minors aged 10 to 18 […] or impose a penalty on minors from the age of 13 to the age of 18 taking into account their diminished criminal responsibility.” Educational sanctions in fact fall between educational measures and criminal sanctions. In the event of non-compliance with the sanction, the judge may order placement in an institution. The expression “educational sanction” is essentially intended to enable the courts to apply a sanction to minors who have not reached the age of criminal responsibility (13 years) and who until the 2002 amendment escaped all punishment. The educational sanctions (Article. 15-1) now applicable from the age of 10 include confiscating an item belonging to the minor and linked to the offence, interdiction to frequent certain places or people (victims or co-authors of the offence), the obligation to follow a civic training course,20 an accompanying measure, and restitution – that is much higher than for adult offenders. Decisions by the prosecutor (for minors) not to bring charges in a given case represent only 10% of cases compared with 40% or even 60% twenty years ago. Once again, this illustrates the move towards a more punitive juvenile justice system.

22In addition, the Law of 5 March 2007 on the Prevention of Delinquency which primarily targets young offenders has introduced a fast-track procedure before the juvenile court judge – the young offender will be immediately brought before the juvenile court judge. Fast-track procedures are designed to reduce the time taken to deal with young offenders. Furthermore, the report emphasizes the role of local authorities, more specifically mayors, in the fight against delinquency. There is a similar trend in England in the importance given to local authorities in the handling of young offenders or potential offenders. Thus, the “New Youth Justice System” that was introduced by the Labour Party at the end of the 1990s gives paramount importance to the prevention of offending by young people – trying to prevent not only criminal behaviour but also acts of pre-delinquency referred to as “anti-social behaviour”. As stated in the 1997 White Paper: “There will be a new focus on nipping crime in the bud – stopping children at risk from getting involved in crime and preventing early criminal behaviour from escalating into persistent or serious offending”. So England has increasingly criminalized children and young people in recent years. As explained by John Muncie (2000: 14) “New Labour’s acceptance that crime runs in certain families and that anti-social behaviour in childhood is a predictor of later criminality has opened the door to a range of legislative initiatives which target disorderly as well as criminal behaviour”. Furthermore, “It also draws children below the age of criminal responsibility into formal networks of social control.” Indeed, one of these legislative initiatives, the Crime and Disorder Act 1998 – Section 37 – was to become the cornerstone of the New Youth Justice System in the United Kingdom. John Muncie (2000: 22) described the Act as, “The first piece of criminal justice legislation in England and Wales to act against legal and moral/social transgression”. Section 14 of this Act states that children under the age of 10 can be made subject to local curfews even though they have not been convicted of any offence, where the local authorities consider it necessary to keep them off the streets at night to maintain law and order. Child curfews are non-criminal measures that can be imposed on children under the age of 10 who have not committed any criminal offence.

23In addition, under the same Act, Section 11, a Child Safety Order can be granted by a Magistrates’ Court – a civil court. Child Safety Orders enable courts to place under supervision children under the age of 10 who have committed – or are thought to be at risk of committing – acts for which they might have been prosecuted if older. The paradoxical – and even worrying aspect – is that a civil court which has to give paramount consideration to children’s welfare, as it was clearly stated in the Children Act of 1989 can deliver these Orders. Besides, these measures have officially been introduced in the name of the protection of children or young people and not as a means of sanctioning them. What is clear is that both measures effectively lower the age of criminal responsibility (Fionda 1999: 36-47) as they are designed to restrict the movement of those under 10 whose behaviour is considered troublesome.

24An even more controversial provision of the 1998 Act was the introduction of Anti-Social Behaviour Orders (ASBOs) implemented in April 1999. They were introduced initially to tackle persistent minor offenders whose actions might not otherwise have been punished. At their peak – in 2004 and 2005 – more than 4,000 ASBOs for minors were issued annually. They are court Orders which prohibit the perpetrator from specific anti-social behaviours such as persistent nuisance, harassment, verbal abuse, intimidation and minor damage. The variety of behaviours and situations covered by ASBOs is well illustrated by Rob Canton (2010: 15): “Anti-social behaviour ranges from the very serious to the merely annoying, its perpetrators from aggressive intimidators to the harmless, the neglected and the troubled”. These various types of behaviour were felt not to be adequately regulated by criminal law. An ASBO can ban an offender from continuing the offending behaviour, spending time with a particular group of friends, visiting certain areas. ASBOs are issued for a minimum of two years. The aim of an ASBO is officially to protect the public from the behaviour, rather than to punish the perpetrator. An ASBO is a civil order, not a criminal penalty – this means it will not appear on an individual’s criminal record. However, a breach of an ASBO is a criminal offence punishable by a fine or up to five years in prison. An Anti-Social Behaviour Order is intended as a community-based intervention as local people are involved in collecting evidence, helping to enforce breaches of the prohibitions in the Order. ASBOs are designed to encourage local communities to become actively involved in reporting crime and anti-social behaviour, helping to protect the community.

  • 21 www.homeoffice.gov.uk/crime/anti-social behaviour

25According to the statistics of the Ministry of Justice, from 2000 to 2008, 55% of the almost 17,000 ASBOs issued were breached, leading to an immediate custodial sentence in about half the cases.21 These figures challenge the efficiency of such measures. Expressing his own doubts about ASBOs, Robert Canton, Professor of Community and Criminal Justice at De Montfort University, Leicester, (2010: 15) observed that: “on its own an ASBO is no more than a threat and, like any threat, is as likely to elicit defiance as compliance”. Undoubtedly, ASBOs are often breached with impunity but what these figures do not show is that young people sometimes breach an ASBO because they do not always understand the measure or cannot obey it because they are too immature. But more broadly speaking, the measure which applies to anyone under the age of 10 has been controversial from the start for many reasons. First of all, since it is a civil measure, it means that the level of proof is lower than that required for a criminal conviction. Besides, as John Muncie (2000: 23) pointed out: “The Order has also been condemned for granting local agencies unlimited discretion and disproportionate powers in acting against undesirable behaviour, irrespective of whether it is criminal or not”.

26The Children’s Rights Alliance for England (2009: 98) criticized the British authorities for “the serious breaches of children and young people’s privacy arising from ASBOs”. A watchdog was set up to supervise the implementation of the United Nations Convention on the Rights of the Child by the states that had ratified it – the United Nations Committee on the Rights of the Child (2008: 18) – which published its findings on the United Kingdom in October 2008. It denounced pre-delinquency measures applied in the country – such as child curfews – as “measures that may violate the rights of children to freedom of movement and peaceful assembly”. Moreover, as Barry Goldson (2000: 9) observed, they “tend to blur the boundaries between crime and anti-social behaviour”.

27As an answer to these criticisms, the new Conservative – Liberal-Democrat coalition that resulted from the May 2010 General Election in the United Kingdom seems determined to abolish them. Significantly, the new Conservative Home Secretary, Theresa May, in her first speech on anti-social behaviour, denounced ASBOs as very counter-productive, saying: “It is time to move beyond the ASBOs, which too often criminalize young people unnecessarily, acting as a conveyor belt to serious crime and prison” (Ford 2010). The alternative proposed by the Government would be to give more powers to the police to deal with minor offenders and make them repair the damage they cause. Previous policies of this type led in France did not prove to be very effective. Indeed, a 1998 Parliamentary Report on responses to juvenile delinquency in France highlighted the fact that police forces did not have a clear vision of the State’s policy on minors, and that they lacked specialisation in dealing with juvenile delinquents.

28Yet, judges themselves, especially youth court judges – who have special training in dealing with children and young people – have a central role to play in choosing the appropriate sentence, as carefully calibrating appropriate sentences is at the heart of good judgments. Although the United Nations Convention on the Rights of the Child encourages diversion of young people from courts whenever possible, in England the great majority of juveniles are tried in Youth Courts, formerly known as Juvenile Courts – under Section 70 of the Criminal Justice Act 1991. Yet, there are some exceptional cases – such as the Bulger case – in which young offenders can be tried in a Crown Court by a judge and jury.

29In France, before the 2002 reform, the rule was one of non-liability of minors. The youth court judge could prescribe protective measures or supervision and, only as a subsidiary measure, an actual sentence. Today, serious offences committed by 16-to-18-year olds are tried by the Juvenile Assize Court composed of three professional magistrates – a chief magistrate and two assessors who are youth court magistrates of the court district – and a jury of citizens. This court can either order educational measures, or impose fines and prison sentences. As the United Kingdom does not have a Court of Assizes for minors, the English former Court of Assizes, the Crown Court – a court for adults – can be used. When this happens, the public and the press are allowed in court, although the judge may make an Order that the names of those on trial should not be published. These are cases where the defendant is charged with murder or manslaughter, rape, and causing death by dangerous driving. In addition, the Youth Court may also send a young person to a Crown Court if the offence is sufficiently serious – i.e. a specified offence – and the sentencing powers of the Youth Court are thought to be insufficient. Without doubt the most controversial aspect of the New Youth Justice System in the United Kingdom concerns the overuse of remand for children and the treatment of juveniles deprived of their liberty.

Depriving juveniles of their liberty more often and for longer periods

30As Barry Goldson (2000: 9) noted: “Nowhere are the punitive dimensions of the New Youth Justice more visible than in the legal provisions and practical responses that lead to the incarceration of children”. This is also the case in France to a certain extent where young offenders who do not comply with “educational sanctions” – under the Law of 9 September 2002 – can be placed in a juvenile detention centre. Once they have reached the age of 13, minors can be given a prison sentence although international conventions in relation to children in the criminal justice system all insist on the fact that deprivation of liberty must be a last resort and for the shortest possible time.

31The United Nations Minimum Rules for the Administration of Juvenile Justice in its Rule 13-1 states that “Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.” The United Nations Convention on the Rights of the Child in its Article 37 states that custody should be imposed on those under the age of 18 only as a last resort and for the shortest possible period. In addition, the United Nations Rules for the Protection of Juveniles deprived of their Liberty (1990) set standards applicable when a child or young person under 18 is confined to any institution or facility.

  • 22 Ministry of Justice (2008), Offender Management Caseload Statistics 2007.
  • 23 Prison Reform Trust (2009), Bromley Briefings Prison Factfile.

32However, this principle has not yet been enshrined in English Common Law. De facto, children and young people in England continue to be sent to juvenile detention units too readily and for longer than necessary. England and Wales have one of the highest child custody populations in the Western world, standing at an average of 2,932 in the year 2007/2008. In 2008, 5,165 children aged between 15 and 17 were imprisoned; of those, 2,560 were to serve sentences up to and including six months.22 The Prison Reform Trust reports that the number of children sentenced to custody more than tripled between 1991 and 2006.23 There are a number of statutes covering the sentencing and detention of young people in the United Kingdom itself, but the key piece of legislation is the Crime and Disorder Act 1998. It introduced a new custodial sentence for young people aged between 12 and 17 – which became effective in 2000. It is imposed for offences which would be punishable with imprisonment when committed by adults. In fact, it has become the main custodial sentence. By 2002, the number of 15-17 year-old-boys who were sentenced to some form of custodial measure was 70% higher than it had been a decade earlier. Sandy Ruxton (1996: 443), an independent social policy expert – specializing in children’s rights – denounced the level of incarceration of children and young people in the United Kingdom saying that: “The very fact that the United Kingdom locks up proportionately more children than most of our neighbour states in the European Union reflects something of the severity of the criminal code”. By contrast, in France, in the case of incarceration, juvenile judges cannot impose a custodial sentence longer than half that of the sentence that would be incurred by an adult. Moreover, this can only be imposed in exceptional cases and only on minors over 16 years of age. Minors can only be incarcerated in a special prison section or in a specialised penal establishment for minors.

  • 24 Centres éducatifs fermés.

33Among its main provisions, the French Law of 9 September 2002 provided for the creation of so-called “Closed Educational Centres24 – closed, meaning that minors cannot leave them unless accompanied by an adult. They involve minors of 13 to 18 years of age placed by judicial decision, either by a supervision Order or under a conditional detention sentence. Most of these are persistent offenders who have already been sentenced in criminal proceedings. Each centre accommodates eight to ten minors who may be aged either 13 to 16 years or 16 to 18 years. The court fixes the period of placement, but if the juvenile is under judicial supervision, this is a once renewable period of six months. Many criticisms have been made concerning this use of coercion, notably because it leads to confusion between the educating and locking up of young offenders. Besides, minors leaving Closed Educational Centres often remain fragile and might re-offend at any time. If young offenders manage to escape, the law provides for them to be imprisoned or returned to prison.

34Yet, one serious problem out of many with sending a young offender to jail is that de facto minors are liable to come into contact with adults, although the law provides for them to be strictly separated. The Law of 9 September 2002 also provided for the construction of prisons for minors accommodating 40 to 60 young offenders to make it possible to separate minors from adults and provide them with more suitable care, since prison administration staff and Judicial Youth Protection staff will work together as part of an educational approach. Several questions nevertheless remain as to the future of the juvenile units in prisons. The reoffending rate among minors is higher than among adults: according to a report of the National Audit office (2010: 17) published on December 2010, between 50 and 60% reoffend on leaving prison, a rate which, in itself, demonstrates that prison is unsuited for minors and that the educational measures taken in prison are ineffective. Prison, which is at the heart of the French and English systems of sanctions, fosters reoffending rather than helping to prevent it. So efforts will need to be made to invent serious and effective alternatives to prison.

Conclusion

35The current analysis deliberately focused on a new characteristic of the United Kingdom Youth Justice System, that is new measures such as parenting orders, curfews, or even ASBOs that can apply to children aged 10 or under who have not committed any criminal offence – nor have they been sentenced following a conviction. The targets of this more than ever repressive policy are very young children considered at high risk of anti-social behaviour – who are not in fact young offenders.

36Although there is no easy way of responding to youth offending – notably first-time entrants into the criminal justice system – both England and France need to find an appropriate answer in order to improve the handling of youth delinquency, taking into account the causes of anti-social and criminal behaviour. Reducing the risk of offending among young people also involves responding to children and young people’s needs across different dimensions of their lives.

37Finally, there is also an urgent need to bring French and English youth justice systems into line with the 1989 United Nations Convention on the Rights of the Child in order to provide a compassionate and considered response to children and young people in trouble. This means that minors who commit an offence must not be regarded “as beyond redemption”, a view shared by Yves Roumajon (1981: 301), a psychiatrist who has devoted his life to helping young offenders, in his optimistic book entitled “Ils ne sont pas nés délinquants” (“They were not born delinquents”).

Notes

1 United Nations General Assembly, Document A/RES/44/25 (12/10/1989), Part I, article-1.

2 In spite of efforts to secure legal uniformity with the setting-up of the new United Kingdom Supreme Court in October 2009, the three separate legal systems of the United Kingdom – that is to say the one that applies to Scotland, Northern-Ireland and England and Wales – still exist all the more as there is a desire in Scotland and Northern Ireland in particular to protect the distinctiveness of their national legal identities. As for Wales, there is a significant emergence of a Welsh legal identity, especially in the field of administrative law.

3 Although the United Nations Convention on the Rights of the Child states that children or young people must never be tried as adults, in the United Kingdom homicide – murder, manslaughter – and rape cases are always heard in the Crown Court.

4 The United Nations for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), UN General Assembly, Document A/RES/45/112, 14/12/1990.

5 L’enfance délinquante.

6 Juge des enfants.

7 The Perben Law of 2002 establishes general principles and a programme for the French criminal justice system. As regards young offenders, it provides for the creation of centres for juveniles or “closed educational centres” for minors under a judicial supervision measure or given suspended sentences subject to a period of probation.

8 UN Minimum Rules for the Administration of Juvenile Justice: the Beijing Rules, A/RES/40/33, 1985.

9 Law No 2002-1138.

10 Criminal Division of the final Court of Appeal, 13/12/1956.

11 L’excuse de minorité.

12 Doli incapax is a Common Law – non-statutory – principle that has historically been used to describe someone who is not capable of having criminal responsibility.

13 Home Office White Paper, 27 November, 1997, No More Excuses – A New Approach to Tackling Youth Crime in England and Wales, London, HMSO.

14 She took up her new post in March 2010. She is a former Director of Children’s Services at Gateshead Council.

15 Scottish Government press release, Criminal age to be raised to twelve, March 2009.

16 European Social Charter European committee of Social Rights, conclusion, XVII-2, vol. 2, chapter 18, 2005.

17 UN Minimum Rules for the Administration of Juvenile Justice, A/RES/40/33, 1985.

18 “If the health, safety or morality of a non-emancipated minor are in danger, or if the conditions for his education are seriously compromised” (“Si la santé, la sécurité ou la moralité d’un mineur non émancipé sont en danger, ou si les conditions de son éducation sont gravement compromises”).

19 When the juvenile court was first set up, a directorate for Correctional Education was created at the same time to implement these educational measures. It is now called Directorate for Judicial Youth Protection.

20 A decree of 05/01/2004 organises this training.

21 www.homeoffice.gov.uk/crime/anti-social behaviour

22 Ministry of Justice (2008), Offender Management Caseload Statistics 2007.

23 Prison Reform Trust (2009), Bromley Briefings Prison Factfile.

24 Centres éducatifs fermés.

Auteur

Senior lecturer at the University François-Rabelais of Tours (lecturing in English Law and Legal English), and at the Bordeaux Law School (lecturing in English for trainee lawyers and judges). She is part of the research team of the Institut des Sciences Criminelles et de la Justice (ISCJ), University Montesquieu-Bordeaux 4. She graduated from Science-Po Bordeaux and completed a PhD in French Public Law on the House of Lords: Britain’s special case. She has written a series of articles on the Westminster Parliament, the New UK Supreme Court and the devolution

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