Trial and Treatment of Youth Offenders: Human Rights at the Coalface of Youth Justice

Introduction | The need for a principled approach | Persisters and desisters - two types of youth offender | Trial and treatment in a principled youth justice system | Conclusion

I INTRODUCTION [1]

“A calm and dispassionate recognition of the rights of the accused … a constant heart-searching by all charged with the duty of punishment … these are the symbols which measure the stored up strength of a nation, and are sign and proof of the living virtue in it”.

Winston Churchill, House of Commons, 1910

A nation’s treatment of its “juvenile”[2] accused, to use Churchill’s words in a more specific context, is a symbol of its strength and virtue. But globally, youth offenders present a challenge to every justice system and, despite “constant heart-searching”, solutions to the unique needs of this vulnerable group remain elusive. This is not least because youth offenders are not “small adults” to whom a cut-down version of the adult Court may be applied, but are young people at varying states of emotional, intellectual and cognitive immaturity. In its attempts to accommodate the needs of this group, the youth justice system has become a rather unusual animal. The system aims to hold children and young people accountable for criminal offences - often in a traditional, adversarial Court process – but because offending may be symptomatic of welfare needs or care and protection concerns, the Court may also need to unravel entangled justice and welfare issues.

It is into this entangled mass that the Court must venture to effect both “trial” and, where necessary, “treatment”. In this paper, we have taken “trial” to mean the process used to determine whether a charge against a young person is properly proved and “treatment” to mean the response taken if charges are proved, rather than the treatment of the young person during the trial process. As to “trial”, the Court must ensure that the young person is subject to age appropriate and timely due process, is properly represented and that charges are established according to recognised laws of evidence beyond reasonable doubt. As to “treatment”, the Court must determine a proper response if the offending is proved but the Court must not impose rehabilitative orders at the expense of the proportionality of the crime to the punishment and the public interest. Given the complexities of effecting trial and treatment it is little wonder that youth justice outcomes often attract criticism from politicians and the public. On the one hand, the youth justice system is often criticised for being soft and ineffective. On the other hand, youth justice processes and outcomes are sometimes seen as alienating, culturally inappropriate and failing to encourage family involvement – and although family can be part of the problem they can often also be part of the solution.

Research reveals that rehabilitative assistance is vital with youth offenders yet public opinion often favours a “get tough” approach featuring military-style boot camps and a lowered age of criminal liability. Rather than succumb to this public pressure youth justice systems must take as their foundation the principles that uphold the rights of children and young people and develop systems that are qualitatively different to their adult criminal justice counterparts. The 1989 United Nations Convention on the Rights of the Child (“UNCROC”) is the starting point for such a principled approach and the foundation upon which a delicate balance between trial and treatment can be achieved.

Most people would agree that the general principles enshrined in UNCROC are vital to ensure the protection of children’s rights – the difficulty, as ever, is in the detail. Most would agree that the principle of a minimum age of criminal responsibility is necessary but the exact age chosen by various jurisdictions is a matter for debate; most would agree with the principle of not criminalising what are in actuality welfare needs or problematic behaviours but some would disagree on how the youth justice system should accommodate these needs. Further, debate surrounds the principle that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter. Critics argue that some alternatives do not adequately deal with the offending and that Police discretion to chose the alternatives should be carefully regulated to avoid human rights abuses.

These are just some of the issues that face modern youth justice systems. This paper will discuss this selection of issues and consider the principled approach with reference to international instruments and New Zealand legislation and highlight that there are, in fact, two types of youth offender. It will consider the best ways to deal with these offenders by exploring the New Zealand Family Group Conference process where the offender, the victim, family members and the relevant youth justice professionals meet to discuss offending and how it can be put right and prevented in the future. Further, this paper will also consider treatment models that work, and others that have been shown to be ineffective, in curbing youth offending.

Footnotes

1 Paper compiled and written by His Honour Judge A J Becroft, Principal Youth Court Judge of New Zealand and Rhonda Thompson (BBS, LLB(Hons)), Research Counsel to the Principal Youth Court Judge. A copy of this paper is available on the New Zealand Youth Court website at www.justice.govt.nz/youth.

2 We have avoided the term “juvenile” in this paper because, in the words of the former Chief Social Worker of New Zealand’s Child Youth and Family Services, Mike Doolan, “… young people find [the word 'juvenile'] deeply offensive. They are the first to realise that juvenile is usually only used as a companion to the word delinquent. Juvenile is not a word used in relation to young people except where they are involved with the criminal justice system and thus it is a stigmatising term.” Mike Doolan quoted in E Watts A History of Youth Justice in New Zealand, January 2003 available on the New Zealand Youth Court website at www.justice.govt.nz/youth.