Older Child or Near-Adult? Resolving Age Boundary Quandaries
| Date | 01 April 2014 |
| Published date | 01 April 2014 |
| DOI | 10.1177/1473225413520363 |
| Author | Nigel Stone |
| Subject Matter | Legal Commentary |
520363YJJ0010.1177/1473225413520363Youth JusticeStone
research-article2014
Youth Justice
2014, Vol. 14(1) 77 –88
Legal Commentary
© The Author(s) 2014
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DOI: 10.1177/1473225413520363
Older Child or Near-Adult?
yjj.sagepub.com
Resolving Age Boundary Quandaries
Nigel Stone
Any youth justice system (YJS) has to resolve: (i) the applicable upper age limit that
marks a young person’s progression beyond the protections of the YJS to the adult system;
(ii) the fit between that age and the expiry of legal childhood status for safeguarding pur-
poses; (iii) whether different upper age limits should apply for different criminal justice
purposes or stages: and (iv) whether there is legitimate scope for differentiating between
children and young persons (CYPs) approaching that age limit and their younger peers,
perhaps adopting some form of incremental shading towards adult status, based on a prin-
cipled foundation in developmental capacity and other age-based considerations. Any
such sub-demarcations may be considered justified in respect of process determinations,
including the pre-trial stage when the CYP is a suspect or unconvicted defendant, and/or
the outcomes stage in respect of characteristics and consequences of sentence or disposal.
With regard to older children, a particular issue is posed regarding the recognition afforded
their parents and whether the child’s wishes or best interests in that respect should ever be
accorded priority over parental responsibility. This Commentary seeks to sketch some
aspects of the development and determination of these dilemmas within the YJS currently
operating in England and Wales, with particular attention to recent consideration of the
status of older youths detained by the police for questioning.
As regards international protocols pertaining to the age boundary for youth justice,
serving as a crucial benchmark for these purposes, it may be noted that the Beijing Rules
(United Nations, 1985) state that the age limit for juvenile status ‘will depend on, and are
explicitly made dependent on, each respective legal system, thus fully respecting the eco-
nomic, social, political, cultural and legal systems of Member States’. Subsequently,
Article 1 of the UN’s Convention on the Rights of the Child (UNCRC) (United Nations,
1989) has defined a child for all juridical purposes as a person aged under-18 unless,
Corresponding author:
Nigel Stone, School of Psychology, Elizabeth Fry Building, University of East Anglia, Norwich, NR4 7TJ, UK.
Email: n.stone@uea.ac.uk
78
Youth Justice 14(1)
under the law applicable to the child, majority is attained earlier. Neither source refers in
terms to differentiations that might validly be drawn within the juvenile age span, such as
for criminal as opposed to civil purposes and in Article 5(1) the Convention refers inclu-
sively to all children when stating: ‘In all actions concerning children, whether under-
taken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child should be of primary
consideration.’
England and Wales: A YJS Overview
Although England and Wales lacked a fully coherent youth justice system prior to the pas-
sage of the Crime and Disorder Act (CDA) 1998, the Children and Young Persons Act
(CYPA) 1933 had served to distinguish under-17s as juveniles for most criminal justice
purposes. Despite differentiating between those aged under-14 (‘children’) and those aged
14 to under-17 (young persons), that division has not served as a significant sub-boundary
for most YJS purposes. Both ‘children’ and ‘young persons’ are beneficiaries of the ‘wel-
fare principle’ specified in s.44(1) of the Act.1 The age of majority in the United Kingdom
was lowered to 18 from 21 on 1 January 1970, the safeguards of childhood under the
Children Act 1989 extending to all aged under-18. In its Green Paper Punishment, Custody
and the Community (Home Office, 1988) the Home Office had invited views on whether
17 year-olds should be brought within the ambit of the juvenile court system, also enquir-
ing whether there was a case for introducing a hybrid approach for 16 to 20 year-olds so
that this age group could be dealt with either in the juvenile court or the adult court
‘according to their maturity’. Most respondents favoured the former but not the latter
proposal.
In the ensuing White Paper Crime, Justice and Protecting the Public (Home Office:
1990), the government accepted these views but sought to differentiate conceptually
between ‘young people’ aged 10 to 15 and ‘near-adults’ aged 16 and 17, a category
intended to reflect that some of this age group are ‘more mature than others’ and so should
be subject to ‘more flexible’ arrangements, at least for sentencing purposes, exposing the
‘more mature’ to adult provisions. Given that some young persons aged 16 and 17 may be
leading independent lives, including the responsibilities of marriage and parenthood, flex-
ibility was also considered appropriate in respect of requirements to involve, and to hold
to account, their parents. As regards remand arrangements in cases where bail was refused,
the White Paper determined that 17 year-olds, irrespective of their maturity level, should
not be brought within the juvenile provisions for remand to the care of the local authority.
Remand provisions thus continued to be a sphere within the YJS in which 17 year-olds
were treated anomalously.
These proposals were effected by the Criminal Justice Act (CJA) 1991, primarily by
extending the ambit of most YJS provisions to include the under-18s (i.e. 17 year-olds)
within the category of ‘young persons’. Thereafter CDA 1998 sought to distinguish and
strengthen the YJS by: specifying a ‘principal aim’ (s.37(1)); creating a new governance
structure linking local authority ownership with national strategic leadership; and intro-
ducing a distinctive set of community-based and custodial sentencing disposals, exclusive
Stone
79
to all children and young persons. The Children Act 2004 s.11 requires public agencies,
including the police, to ensure that their ‘functions are discharged having regard to the
need to safeguard and promote the welfare of children’ (i.e. all aged under-18).2
This brief overview may serve to give some flavour of the familiar tensions and ambi-
guities that continue to pervade the YJS in this (and almost certainly any other) jurisdic-
tion, in particular between the spirit of safeguarding the welfare of all children and the
wish to appear resolute in not adopting a seemingly soft or sentimental approach to those
on the brink of adulthood. These tensions have been posed particularly starkly in the con-
text of the provisions governing youthful suspects detained by the police for
investigation.
Young Suspects in Police Detention
The Police and Criminal Evidence Act (PACE) 1984 s.56(1) confers a right on anyone
arrested and held in custody to have a friend, relative or other person told of his/her arrest
and detention as soon as is practicable. However, that right is significantly qualified in
that delay may be permitted where an officer of at least the rank of inspector believes that:
telling such a person will lead to interference with, or harm to evidence connected with,
an indictable offence or to a witness; or will cause others to be alerted to the possibility of
arrest; or will hinder the recovery of any property obtained as a result of such an offence
(s.56(5)). A half-century previously CYPA 1933 s.34 had made special and unqualified
provision for CYPs:
(2) Where a child or young person is in police detention, such steps as are practicable
shall be taken to ascertain the identity of a person responsible for his welfare.
(3) If it is practicable to ascertain the identity of a person responsible for the welfare of
the child or young person, that person shall be informed, unless it is not practicable
to do so:
(a) that the child or young person has been arrested;
(b) why he has been arrested; and
(c) where he is being detained.
The suspect’s parent, guardian or such other person who has for the time being assumed
responsibility for the young suspect’s welfare must be informed as soon as practicable.
Section 34 was one of the provisions amended by CJA 1991 (Schedule 8 para. 1(2)) to
extend this requirement to include the under-18s. However, for reasons not expounded at
the time, the relevant commencement order − CJA 1991 (Commencement No 3 Order)
1992 (SI 1992/331) − did not give effect to this reform, thus retaining the definition of
‘young...
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