Youth justice: on the cusp of modernity?

Every December, the NI Human Rights Commission releases its annual report and, for years now, one of the report’s major concerns has centred on children and the justice system.

The minimum age of criminal responsibility in Northern Ireland is 10. This is one of the youngest minimum ages in Europe. It is also low by standards worldwide.

The 2012 NIHRC annual statement notes that the UN Convention on the Rights of the Child (UNCRC) says that the minimum age should be 12, as a minimum, and that anything lower than this is in breach of basic human rights obligations. Accordingly, it calls for NI to raise the minimum age.

The 2021 annual statement says exactly the same thing (note that a recent update to UNCRC recommendations now advises that the minimum age should be 16).

Objections about the minimum age are not limited to the Human Rights Commissioner. The Children’s Commissioner and large swathes of the entire children’s sector have been campaigning to see the age raised for years.

The minimum age of criminal responsibility is not the only problem with youth justice in Northern Ireland. However, it is emblematic of wider issues that see children not really treated like children.

Children are put into custody when this isn’t essential. They spent too much time in custody. The justice process takes too long, it can be harsh rather than productive, and the mistakes made by children can be a millstone that has a disproportionate impact on the rest of their lives.

Altogether, this represents an outdated, cold, ineffective approach to youth justice – one that runs contrary to best practice not only in youth justice, but in the wider criminal system full stop.

Criminalising children at the age of ten has consequences, and these are not good.

However, change may now be on the horizon. It’s taken some time.

A review, and a review of the review

In 2011, the Department of Justice (DoJ) completed a review into youth justice which made several recommendations, including raising the minimum age of criminal responsibility to 12, with consideration that it might shift to 14 after further research.

The review called for police to update their engagement policy regarding minors, and to work on both training for officers and community outreach to make this work.

It said that young people’s past criminal behaviour was too sticky, with their records tending to follow them too far through their lives. It also said the justice process often takes too long, is the subject of too many delays, and that certain offences lead to criminal records when different routes made more sense.

In the following decade, some of the recommendations were implemented, partially or fully. Some went nowhere.

Last November, a group of children’s organisations including VOYPIC, NIACRO, Include Youth and the Children’s Law Centre published Tracing the Review: Developments in Youth Justice in Northern Ireland, a report that “tracks the progress of several key recommendations made a decade ago in the Youth Justice Review”.

Per Tracing the Review: “The recommendation to raise the MACR [minimum age of criminal responsibility] is one of the key elements of the Youth Justice Review that has remained unimplemented. Northern Ireland’s MACR of 10 years is one of the lowest in Europe and in clear contravention of children’s rights standards.

“The lack of political consensus on this issue has been identified as a key barrier to progressing this recommendation, with many nothing that MACR is a ‘special issue’ in Northern Ireland.”

The report said progress on police engagement with young people has been “slow and piecemeal” adding that “additional concerns regarding the extent to which policing in Northern Ireland falls short of children’s rights standards have been raised” by the UNCRC in the past decade.

In terms of custody, it says that, although the overall number of young people in custody has declined, the “overuse of remand and the placement of children into custody… remain areas of concern” and “there is continued over-representation of some groups, specifically Looked After Children”.

Tracing the Review also notes that efforts to improve early interventions might be better moved outside of Stormont’s justice portfolio altogether. Early intervention, in this sense, means providing young people with help to reduce the chances they come into contact with the justice system at all.

The argument that this should not be a justice programme itself makes a lot of sense. A further criticism of current DoJ efforts to improve early interventions is that there are huge gaps in data, meaning it is difficult or even impossible to measure the effectiveness of current schemes.

Broadly speaking, the implementation of 2011’s Youth Justice Review has been partial, at best (which is not to say some significant changes have not taken place, such as the philosophical reboot of Hydebank College).

However, not long before the Assembly elections, another attempt at reform was announced.

Ministerial view

Attempts at real change have been in the works for years. A scoping study commissioned by then Justice Minister David Ford in 2015, ran into trouble round the Executive table at Stormont (and ultimately that scoping study was never published).

Current Justice Minister Naomi Long has been an outspoken supporter of changes, including raising the minimum age, for several years.

In March, she published a new Strategic Framework for Youth Justice, alongside a five-year action plan. Launching the new strategy, she said: “We have made significant inroads into addressing offending behaviour by children in recent years and this has resulted in a considerable reduction in the number of children and young people entering the formal criminal justice system.  This benefits everyone in our society, from the children themselves and their families, to their victims and the wider communities in which they live.

“My Department’s new Strategic Framework for Youth Justice recognises that in order to build upon past successes and make further improvements, the continued adoption of a “children first” approach is vital…

“I do not believe that criminalising children as young as 10 is in their best interests. A key action within the Framework, therefore, is to engage the public in a debate on this, with the aim of increasing the minimum age of criminal responsibility in Northern Ireland to 14.

“The vast majority of children in Northern Ireland will thankfully never enter into contact with the youth justice system.  For those who do, I am pleased that we now have a Framework dedicated to improving their life chances and ensuring they receive the support that every child deserves.”

The stated aim of the strategy is the creation of a new, progressive, effective justice system that treats children appropriately. The strategy notes: “A significant proportion of children who offend have difficult backgrounds and may have encountered a number of adverse childhood experiences (ACEs). Not all children with ACEs will enter the youth justice system but for those who do, we are determined to support them in turning their lives around and avoiding a downward spiral of further offending which not only has a detrimental effect on them, but also has an impact on their families and society as a whole.”

Strategy

The strategy cites some of the success of the past decade. They are worth looking at. Despite slow progress in many areas, there have been some wins, such as:

• a 54% reduction in the number of children entering the justice system for the first time for offending behaviour, from 1,555 children in 2011/12 to 710 children in 2019/20
• a 59% reduction in the number of children dealt with by the youth courts, from 3,023 in 2011 to 1,256 in 2019
• a 61% reduction in the daily average number of children held in custody, from 28 in 2011/12 to 11 children in 2020/215
• a decrease of almost 12% in the Youth Justice Agency’s (YJA) court ordered referrals to Youth Justice Services as a proportion of all their referrals, from 34.6% in 2016/17 to 22.8% in 2020/21, and an increase in the proportion of Earlier Stage Diversions, from 6.4% in 2016/17 to 20.2% in 2020/21

The policy paper includes plans to raise the minimum age, while its broader aims are indeed progressive and lean into modern ideas of best practice. Its four high-level outcomes are:

• Children are exited from the criminal justice system at the earliest point, with appropriate support
• Positive outcomes for children, families, victims, and communities affected by offending
• Children will only ever be placed in custody as a last resort
• Working in partnership to deliver wider, systemic change to improve the lives of children

In general, these changes concern reducing crime by addressing the risk factors associated with crime, providing support to young people who find themselves in trouble, and also being sensitive to the needs of the victims of crime.

People in the children’s sector consider the need for change to be urgent.

Speaking with Scope, VOYPIC CEO Alicia Toal said: “The commitment to undertake the Youth Justice Review was agreed as part of the Good Friday Agreement peace settlement. All parties signed up to this agreement and to delivering its objectives but have failed to fully deliver on the recommendations of the Review.

“Some of the most significant recommendations, including raising the Minimum Age of Criminal Responsibility, have not been taken forward. The partners involved in Tracing the Review remain steadfast in their view that full implementation of the Youth Justice Review’s recommendations is required.

“However, whilst we continue to seek this commitment from government, we are prepared to work with the Department of Justice to take forward the new Framework to improve the experiences of, and outcomes for, children and young people in contact with the criminal justice system.”

The current uncertainty at Stormont presents problems.

Ministers only have caretaker powers with little or no room to make big decisions or significant changes. However, these reforms might be actionable given they were published before the elections and the subsequent installation of the current zombie government.

That would be welcome news. Changes in youth justice are long overdue.