Human rights and youth justice reform in England and Wales: A systemic analysis
| DOI | 10.1177/1748895817721957 |
| Date | 01 September 2018 |
| Published date | 01 September 2018 |
| Subject Matter | Articles |
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Article
Criminology & Criminal Justice
2018, Vol. 18(4) 405 –430
Human rights and youth
© The Author(s) 2017
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DOI: 10.1177/1748895817721957
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Wales: A systemic analysis
Chris Cunneen
University of New South Wales, Australia
Barry Goldson
University of Liverpool, UK
Sophie Russell
University of New South Wales, Australia
Abstract
This article examines critically the persistently antagonistic relationship – across the past quarter-
century – between the provisions of international human rights instruments and the nature and
direction of youth justice reform in England and Wales. It introduces the core provisions of the
human rights framework that pertain to youth justice and it sketches the nature and direction of
policy reform over the 25-year period under scrutiny (1991–2016). To obtain a comprehensive
sense of the relationship between human rights and youth justice reform in the jurisdiction,
it applies a detailed systemic analysis; beginning at the point at which criminal responsibility is
formally imputed and progressing through each stage of the youth justice system, up to the point
where the child might ultimately be deprived of her/his liberty. By taking a ‘long-view’ of youth
justice reform and by adopting a systemic end-to-end analysis of the human rights–youth justice
interface, the article presents an analytical account of both change (policy reforms) and continuity
(the enduring nature of human rights violations).
Keywords
Children, human rights, policy reform, punitiveness, youth justice
Corresponding author:
Barry Goldson, Department of Sociology, Social Policy and Criminology, School of Law and Social Justice,
University of Liverpool, Eleanor Rathbone Building, Bedford Street South, L69 7ZA, UK.
Email: b.goldson@liverpool.ac.uk
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Criminology & Criminal Justice 18(4)
Introduction
This article derives from an extended programme of research – The Comparative Youth
Penality Project – which comprises the first comparative study of youth justice culture,
theory, law, policy and practice within and between selected Australian state jurisdictions
and England and Wales. A core concern of the wider project is to explore the relationship(s)
between discourses of human rights and discourses of youth crime and, more specifi-
cally, to examine critically the extent to which international human rights standards have
exerted influence, over time, on the evolution and development of youth justice policy
and practice. For present purposes, the analytical focus privileges the persistently antag-
onistic relationship – across the past quarter-century – between the provisions of human
rights instruments and the nature and direction of youth justice reform in England and
Wales.1 Within this context, the Criminal Justice Act 1991 might be taken to represent
the final piece of ‘moderate’ legislation before policy and practice took a distinctly puni-
tive turn. During much of the 25 years that followed, the jurisdiction evolved into one of
the most retributive and punitive youth justice sites in the western world. More recently,
financial crisis and conditions of austerity have been accompanied by substantial penal
downsizing in the youth justice sphere. Notwithstanding this otherwise welcome trend,
however, children’s human rights continue to be profoundly compromised. By taking a
‘long-view’ of youth justice reform and by adopting a systemic end-to-end analysis of
the human rights–youth justice interface, we attempt to present an analytical account of
both change (policy reforms) and continuity (the enduring nature of human rights
violations).
The Human Rights Framework
The contemporary international human rights framework within which youth justice is
located – in England and Wales and elsewhere – comprises three key instruments. First,
the United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(the ‘Beijing Rules’) (United Nations General Assembly, 1985), second, the United
Nations Guidelines for the Prevention of Juvenile Delinquency (the ‘Riyadh Guidelines’)
(United Nations General Assembly, 1990a) and, third, the United Nations Rules for the
Protection of Juveniles Deprived of Their Liberty (the ‘Havana Rules’) (United Nations
General Assembly, 1990b). Furthermore, the core provisions contained within the
‘Beijing Rules’, the ‘Riyadh Guidelines’ and the ‘Havana Rules’ were substantially bol-
stered, in 1990, when the United Nations Convention on the Rights of the Child (UNCRC)
– the most widely ratified human rights instrument in history – came into force (United
Nations General Assembly, 1989).
More recently, the United Nations Committee on the Rights of the Child (2007)
adopted General Comment No. 10 that encapsulates the ‘core elements’ of human rights
compliant youth justice policy and, more recently still within the European context, the
Council of Europe Committee of Ministers has extended the human rights principles that
inform the European Rules for Juvenile Offenders Subject to Sanctions or Measures
(Council of Europe, 2009) by formally adopting specific Guidelines for Child Friendly
Justice (Council of Europe, 2010).
Cunneen et al.
407
Taken together, therefore, the United Nations and the Council of Europe human rights
standards, treaties, rules, conventions and guidelines both impose a wide range of obliga-
tions and provide a well-established framework for modelling youth justice statute, for-
mulating policy and developing practice in England and Wales, alongside each of the
other nation states to which the same instruments apply.2 However, a note of caution is
warranted regarding human rights in general and, more particularly, children’s human
rights. Indeed, we are aware of the limitations of human rights discourses that uncriti-
cally conceptualize rights as ‘universal’. We are also persuaded by wide-ranging cri-
tiques of such discourses. Alston (2013), for example, details the ‘deeply critical’ body
of academic literature emanating from anthropology, history, jurisprudence, philosophy
and political science. We are equally aware of the uneasy relationships between critical
criminology and (some) human rights discourses owing to the ‘liberal’ derivations of
such discourses and their failure to recognize and challenge structural and institutionally
embedded social divisions, inequalities and injustices through which ‘rights’ are medi-
ated and differentially inflected. Harris-Short (2003), for example, notes that theoretical
problems – deriving from notions of ‘cultural relativism’ – are invoked by the concept of
universal human rights. On one level universalism might be conceived as an expression
of western liberal hegemony (recalling vestiges of ‘civilizing’ colonialism and imperial-
ist intervention), whereby rights obligations are imposed on nation states where cultural
and/or socio-economic conditions are such to render them unable or unready to meet
such obligations. Conversely, constructions of ‘cultural difference’ might be deliberately
mobilized to rationalize non-compliance with human rights obligations and, at the
extremes, even to justify or excuse human rights violations.
Turning more specifically to children’s human rights, if the practical translation of
universal human rights standards and principles is, at least in part, culturally relative, it
is also economically contingent. It is difficult to imagine, therefore, how international
human rights standards might be evenly and universally applied within a global context
that is unequal and deeply divided. Goldson and Muncie (2009a: xi–xii) question:
How do the provisions of the UNCRC apply, for example, to the poorest children in the world?
More than 1 billion children suffer from a lack of proper nutrition, safe drinking water, decent
sanitation, health-care services, shelter and/or education; every day, 28,000 children die from
poverty-related causes; in 2004 alone, an estimated 10.5 million children died before they
reached the age of 5, most from preventable diseases; in the same year, approximately half of
all refugees around the world were children; an estimated 143 million child orphans live in
‘developing’ countries; more than 1 million children in conflict with the law – most of them
poor – are detained in penal institutions; the precise number of street children is not known, but
estimates range within tens of millions; the International Labour Organisation (ILO) estimates
that 246 million children are engaged in child labour, 70% are working in hazardous conditions
and 73 million of them are below the age of 10.
Similarly, Penn (2005: 14) has observed that economic globalization serves to con-
solidate and deepen ‘unequal childhoods’ by creating a ‘wake of poor and victimised
people’. Furthermore, while the contrasting material conditions that distinguish the
‘minority rich world’ from the ‘majority poor world’ graphically reveal global dis-
parities, inequalities also exist within rich countries and rights are additionally
408
Criminology & Criminal Justice 18(4)
moderated through the prisms of age, class, disability, ethnicity, gender, ‘race’ and
sexuality.
Although we acknowledge the limitations of idealized and uncritical constructions of...
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