Curfews: No More Hanging Around
| Published date | 01 August 2002 |
| DOI | 10.1177/147322540200200202 |
| Author | Charlotte Walsh |
| Date | 01 August 2002 |
| Subject Matter | Articles |
Charlotte Walsh
Correspondence: Charlotte Walsh, Faculty of Law, University of Leicester, Fielding
Johnson Building, University Road, Leicester LE1 7RH. Email: ckw2Vle.ac.uk
Abstract
This article examines the recent extension of the scope of youth curfews. A critical analysis
of the desirability of this widening of status laws is then offered, with an initial focus on
libertarian issues, followed by a consideration of the predicted efficacy of youth curfews
in the field of crime control. As the use of youth curfews has been prevalent in the United
States since their revival in the early 1990s, a comparative analysis is possible. It is argued
that the use of youth curfews is questionable both in terms of their implications for human
rights and freedoms and as regards their utility.
Introduction
The aim of this paper is to analyse the recent extension of the power to impose youth curfews
in England and Wales. The new criteria for applying for a youth curfew scheme to be
established are contrasted with the old criteria, and the changes in emphasis and aims are
critically analysed. The potential for youth curfew schemes to amount to an oppressive system
of control is raised, and the legitimacy of this is questioned, with a particular focus on the
rights and freedoms of young people and their parents. It is submitted that issues of
compatibility can be raised in relation to articles 5, 8, 11 and 14 of the European Convention
on Human Rights. A comparative analysis is made, looking at constitutional challenges
mounted against curfew legislation in the United States.
This comparative approach continues and an analysis of the effectiveness of youth curfews
in the United States, in terms of crime control, is advanced: the results are found to be
unconvincing. In an attempt to locate an empirical basis for the Government’s support of
blanket curfews, the Hamilton Child Safety Initiative in Scotland is examined; however, it is
submitted that the relevance of the results of this scheme are questionable on a number of
grounds, not least due to the differences between it and statutory curfews. In conclusion, it is
argued that the imposition of youth curfews is undesirable, both in terms of their undermining
of human rights and of their limited efficacy.
Curfews in Context
The Crime and Disorder Act 1998
The potential to impose blanket curfews upon our nation’s youth was first provided for by
sections 14 and 15 of the Crime and Disorder Act 1998 (CDA 1998) (see further Walsh, 1999).
Local Child Curfew Schemes were just one amongst many measures that the Labour
Government introduced with a view to furthering their principal aim in relation to youth
justice: namely, the prevention of offending by children and young persons (CDA 1998 s. 37).
Crime is thought to be best prevented by ‘nipping it in the bud’:
The Government believes that early intervention before habits become ingrained and before a child has
started to identify himself or herself as an offender will often be more effective than waiting until that
child comes before the criminal justice system.
(Home Office, 2001a: 5).
Youth Justice Vol. 2 No. 2
71
More specifically, the stated dual aims of curfew schemes are:
To protect the local community from the alarm and distress caused by groups of young people involved in
antisocial behaviour at night, and to protect children and young people from risks of being unaccompanied
on the streets late at night.
(Home Office, 2001a: 4).
Under the original legislation, applications were to be made by the relevant local authority,
upon which the Secretary of State could approve the activation of a curfew scheme in a specific
local area (s. 14(5)(a)). If implemented, such schemes were designed to have the effect of
banning children under the age of ten (s. 14(2)) from being in a public place during specified
hours, between 9 pm and 6 am, unless they were under the supervision of a responsible adult
(s. 14(2)).
The consequences of breach of curfew, which remain unchanged, are contained within
section 15 of the 1998 Act. Those young people who are found to be in breach of curfew may
be escorted home by a police officer (s. 15(3)). The local authority is then under an obligation
to visit their family within 48 hours to assess whether or not there is a need for intervention
or support (s. 15(4)). Possible statutory responses from the local authority include an
application for a Child Safety Order for the under 10s (as contained within the CDA 1998, s.
11), or the commencement of welfare proceedings under the Children Act 1989.
The Criminal Justice and Police Act 2001
Recent legislation, in the form of the Criminal Justice and Police Act 2001 (CJPA 2001), has
amended section 14 of the 1998 Act, opening up the scope of curfews in two important ways.
Firstly, the power to apply for a curfew scheme to be activated in a particular area is now
conferred upon the local chief officer of police, alongside the local authority (CJPA 2001 s. 49
which amends CDA 1998 s. 14(1)). Secondly, the age range of those upon whom curfews can
be imposed is extended: section 48 of the 2001 Act increases their ambit to include the under
16s. Both of these changes were drafted largely as a result of the fact that not one local
authority used their power to apply for a curfew to be activated in their area under the original
provisions in the 1998 Act.
One of the reasons behind this reticence to apply for curfews has been identified by Jack
Straw as stemming from the ‘conservatism’ of local authorities (as quoted in House of
Commons Research Paper, 2001: 40). It is in order to circumvent this ‘conservatism’ that the
power to apply for curfews is now shared with chief police officers. Whilst the stated aim is
to ‘utilise officers’ detailed knowledge of known problem groups and areas’ (10 Downing Street
Newsroom, 2001), the unspoken assumption is that the police will be more eager to apply for
curfews than the local authorities have proven themselves to be. This assumption would appear
to be correct: at the time of writing, the first proposal for a curfew scheme has been reported
as being put together by the police in Corby, Northamptonshire (Wilson, 2002).
If the police in other areas were to follow this example it would not be surprising. In
weighing up whether or not to apply for a curfew scheme, local authorities must take into
account many factors, not least, given that they are a democratically accountable body, public
opinion. The police, however, are much more focused on the narrow issue of law and order:
this renders the increasing possibility of curfews appearing to be an appealing proposition.
Further, it is well documented that the practice of policing can lead to officers having a
pessimistic view of the state of the world, which can lead to over-reaction and support for
oppressive legislation (see further, Reiner, 2001: 90). Indeed, the signs would seem to indicate
that the police may take up their new power willingly nationwide: the Police Federation have
previously specifically requested that the age group to whom curfews potentially apply be
expanded (as quoted in House of Commons Standing Committee, 2001: Part 8).
72
Curfews: No More Hanging Around
Jackie Ballard identified the full significance of this new police power at Committee stage:
The idea of the measure is that the public should not be subject to intimidation from large groups of
young people, but when the Government talked initially about the provision for under 10-year-olds, they
said that child welfare was the key issue. Local authorities were to make child curfew orders, because
they have to provide for the education and welfare of children, through social services, youth services and
a whole raft of measures that may give young people alternatives to hanging around on street corners. To
say, as the clause does, that the police can also have the power to make local child curfew orders,
independently of local authorities, which are reduced to the level of consultees, is to move away from any
pretence of considering child welfare and into the sphere of criminal sanctions.
(House of Commons Standing Committee, 2001: Part 9).
However, if the police do embrace this new power, it may be a decision that they come to
regret, as it is one that will be likely to have unwelcome repercussions. Experience from the
United States shows that the existence of curfews makes police officers’ jobs more difficult
and adversely affects their popularity (see further, Harvard Law Review Association, 1997).
Unsurprisingly, curfews tend to be unpopular with the group which they seek to control; as
enforcers of unwelcome laws, police officers’ relationships with young people can degenerate
into ones which instill feelings of fear and hostility, rather than of respect. This sits uneasily
with the notion of policing by consent upon which our system is supposedly predicated (see
further, Reiner, 2001: 48–50). It should also be remembered that those who will potentially
come to equate the police with the oppressive curfew law they are enforcing will,
predominantly, be non-criminal youth: this is due to the fact that curfews affect all young
people and the majority of young people are not criminals. Whether the police are prepared
to alienate themselves from this group, and whether they are prepared for the consequences
of such alienation, remains to be seen. One such unintended consequence may be the
devaluation of more necessary laws in the minds of younger generations.
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