Young Offenders and the Law - Essay Example

? Evidence work Evidence work Introduction Most laws and sta y provisions related to criminal justice draw a distinctive line between people who have attained the age of 18 years and those below this age1. These provisions typically treat people under the age of 18 years differently from adults. However, in most cases, when juveniles aged 17 years are taken into police custody for the purposes of questioning, they are considered as adults, thus treated as adults2. This is a notable anomaly in the eyes of provisions of the law, especially in terms of the treatment of detainees under criminal justice. Legal principles aim at promoting the rights of children throughout the administration of justice. This means that the legal system needs to uphold the fact that children, including individuals aged 17 years, are people in their own right and thus possess obligations and rights. These rights and obligations must be taken into consideration and respected by judicial and administrative authorities. 17 year olds enjoy special rights at police stations. The purpose of this paper is to examine the array of legal rights endowed on 17 year olds while in police custody for interviewing. The paper will further make pertinent recommendations to enhance the level of protection offered to juveniles in the initial stages of the juvenile justice process. Background International, regional and national legal principles hold that children possess special interests, needs and rights, which must be appreciated in all stages of the criminal justice system. This means that the administration of justice, both criminal and otherwise should always be guided by principal principles of non-discrimination, which are aimed at upholding the best interests of the juvenile. The European Convention on Human Rights is one of the most relevant regional legal principles that countries in Europe seek to incorporate into their domestic legal systems in order to provide guidance on the treatment of juveniles within the justice system3. The Convention has influenced the creation and implementation of legal provisions such as the Police and Criminal Evidence Act 1984 (PACE) and the Human Rights Act 1998 with the view to enhance the protection of juveniles’ rights in all spheres of life. Notably, recent court cases have revealed that PACE is inadequate in its protection of juveniles since it promotes the treatment of 17 year olds as adults during interviews at the police station. In R. (on the application of HC) v Secretary of State for the Home Department [2013] EWHC 982 (Admin) (QBD (Admin)), the court ruled that the failure to revise PACE 1984 Code C in a manner that differentiates between adults and 17 year olds is a direct contravention of the government’s legal duty under the Human Rights Act 19984. PACE 1984 Code C allows police officers to treat 17 year olds as adults5. For instance, police officers are allowed to delay juveniles’ phone calls to their guardians on the pretext that there are reasonable grounds to believe that the exercise of the right to a phone call will impair the investigations. PACE Code C considers juveniles as all individuals who seem to be below the age of 17 years in the absence of evidence to the contrary6. Since the ratification of the Children Act in 1908, the criminal justice system has maintained that young offenders must be treated differently from adults in all stages of the justice process. Other legal principles such as remand and sentencing legislation, for instance, Criminal Justice Act 2003, Powers of Criminal Courts Sentencing Act 2000 and the Rehabilitation of Offenders Act 1974 also differentiate between those below and over the age of 18 years7. Additionally, the Prison Service Instruction 08/2012 describes children as all individuals under 18 years. Under Article 1 of the United Nations Convention on the Rights of the Child (UNCRC) a child is essentially a person under 18 years, unless the law applicable to the child delineates that majority is attained at a younger age8. In the UK, the age of the majority is 18 years, thus anyone under 18 years is a child, and should thus be treated as a juvenile while in police custody. In 2008, the UNCRC found that the UK was unsuccessful in extending the protections offered to juveniles to 17 year olds9. This is because the treatment of 17 year olds as adults is inconsistent with the Committee’s views and other principle provisions of international law. Although international law provisions such as those of the UNCRC do not dictate the way states should maintain adequate protections for 17 year old detainees, they all agree that 17 year olds should be treated as children. Since Parliament has been unsuccessful in distinguishing between adults and 17 year old detainees, it is irrational to consider the Secretary of State’s inability to revise Code C as unreasonable. PACE 1984 instituted a robust legislative framework that covers the powers assigned to police officers in the England and Wales to deal with crime. The Act provides codes of conduct for the police in the exercise of these powers10. PACE aims at creating a sense of balance between the rights of members of the public, including juveniles, and the powers conferred on the police11. PACE encompasses a wide array of provisions, but it mainly deals with the powers of the police to enter into and search premises, and search people, handle exhibits acquired from searches and the treatment of suspects in custody, especially during interviews. Treatment of 17 year olds at the police station Upon arrival at the police station, 17 year olds should be seen by the relevant custody officer for the purpose of a risk assessment. This assessment should take into consideration the circumstances leading to the arrest, as well as all relevant uses of force or mental and physical health issues demonstrated by the juvenile12. The custody staff should also confirm that all individuals who have been in contact with the detainee have passed on all relevant information, as well as risk-related details regarding the detainee. Other protections afforded to 17 year olds while at the police station include the absolute right to have an adult informed of their arrest and interrogation. However, as noted, PACE Code C does not recognize 17 year olds as juveniles, therefore, denies them the right to have a caretaker informed upon the child’s arrest13. In addition to informing the juvenile’s parents or guardians, Code C. 1.5 requires that 17 year olds held at a police station, must be afforded the right to have an appropriate adult present during all interviews with police officers14. The term appropriate adult, in this case, refers to a parent, guardian or adult in charge of caring for the child whether at home or in an institution that is not a place of employment. In addition, an appropriate adult can also constitute a person representing a pertinent authority such as a social worker. However, a parent or guardian is only appropriate if he or she is not suspected of playing a part in the offence. Furthermore, the juvenile has the legal right to reject the presence of a parent or guardian who is estranged from the child. With regard to informing the appropriate adult, police officers at the station should ensure that the adult does not merely act as an observer, but rather actively advises the 17 year old being interviewed. The appropriate adult’s purpose is to ensure that the interviews are conducted fairly and properly in accordance with the law. It is the responsibility of police officers to facilitate free communication between 17 year olds and their adult representatives. Whenever the appropriate adult deems it necessary to obtain legal advice, police officers must take the necessary action to guarantee provision of legal advice even before the adult arrives at the station. The law requires that police officers caution 17 year olds only in the presence of an appropriate adult15. The law appreciates that while 17 year olds are capable of supplying reliable information and evidence, they are likely to unintentionally furnish unreliable, self-incriminating or unreliable information. Additionally, while at the police station, 17 year olds have the right to be treated in a dignified manner that takes into consideration their human rights and their diversified individual need16. Police officers also guarantee the privacy of all juvenile detainees, especially when the detainees are highly vulnerable. This also means that police officers who come into contact with 17 year olds should be respectful and responsive to the juveniles’ individual vulnerabilities. This involves checking all holding rooms for damages and harmful objects before placing the detainees in the rooms. PACE also requires police officer to take immense care when dealing with 17 year olds who demonstrate vulnerabilities related to consumption of alcohol or packed drugs and disabilities17. In addition, the treatment of 17 year olds at the police station should ensure the maintenance of their sexual and religious beliefs by meeting their specific religious needs. 17 year olds detained for police interviews must be guaranteed access to social and health care services needed to maintain their mental and physical health. However, medical care can only be provided after the 17 year old is visually observed for general health concerns, which are then recorded and interpreted in the context of risk and health issues18. In consultation with pertinent health care professionals, police officers must assess and determine the fitness of a 17 year old to be detained. Provision of mental and physical health care to 17 year olds in police custody should also entail the provision of appropriate support and medication depending on the juveniles’ needs19. Furthermore, the use of force, for, among others, extraction of information from 17 year olds is strictly prohibited in accordance with the fundamental rights prescribed in the Human Rights Act 1998 and other human rights legal principles. During the interview process at the police station, all actions undertaken by police officers should uphold the best interest of the child as the principal concern20. Throughout the handling and interviewing of 17 year olds, a lot of care should be taken to ensure that only approved restraint techniques and equipment are utilized. Furthermore, police officers should ensure that they use reasonable efforts when there is doubt regarding ascertaining the identity of detainees. While in police custody, it is right of 17 year olds to be protected against harm. Therefore, police officers are required to record and act on both information and behaviour that suggest the 17 year old may harm themselves. This involves searching for and eliminating all harmful items in line with PACE Code C and s.54 (1)21. Recommendations After the High Court made a breaking judgement concerning the enforcement of rules associated with 17 year olds in police custody, it became clear that existing laws are ineffective in enforcing the rights of 17 year olds as juveniles. In the case, the court decided that the failure of the Secretary of State to modify the codes that determine police actions in the treatment of 17 year old individuals constitutes a violation of the government’s obligation under the Human Rights Act 199822. Therefore, viable amendments need to be made in order to ensure that Code C of PACE enforces the legally provided rights of 17 year olds while at the police station. Notably, with regard to PACE, it is vital to do away with the distinctive omissions that facilitate treatment of 17 year olds as adults while at the police station23. Therefore, it is essential to ensure consistency in different codes and sections inherent in PACE. For instance, changes made to Code C should be mirrored in other codes such as Code H and vice versa in order to provide consistency in protection. The code should require all custody staff to perform various acts in accordance with the detainees’ rights and entitlements, for instance, informing an appropriate adult. Moreover, the legislation should make provisions for updates regarding the provision of access to legal assistance and advice, as well as safeguards, for detainees who alter their stance regarding wanting legal access. Furthermore, the law should be modified to allow for updated provisions of self-administration for controlled drugs. Viable adjustments to the law can also include the enhancement of the application of safeguards for 17 year olds suspected of being drunk or on drugs. Conversely, the law can ensure that 17 year olds in police custody are treated as children. This means that the Secretary of State should issue a revised Code of Practice linked to the treatment of 17 year olds by police officers. Currently, PACE is consistent with present laws since it confers special protections to individuals who seem to be under 17 years, but treats 17 year olds as adults24. Therefore, it is essential for the Secretary of State to revise all codes to ensure they include 17 year olds in the definition of children liable for special protection and treatment. Both Houses of Parliament and all relevant bodies should, in turn be ready to make the necessary approvals to help pass the revised law that considers 17 year olds as juveniles. Paragraph 1.5 of Code C defines a juvenile as any person who appears below 17 years provided that there is no clear evidence on the contrary25. The basis of appearance should be scrapped such that the law requires any individual, less than 18 years to be termed a child and thus afforded special treatment. In addition, the law can be modified to deter misunderstandings inherent in the application of section 3.15 of Code C. Presently, the Code requires police officers to inform the appropriate adult as soon as practicable26. The term practicable creates a misunderstanding since an officer can argue that a certain time is not practicable. Therefore, the law should be amended to require police officers questioning 17 year olds to inform the appropriate adult immediately after taking the juvenile into custody27. With regard to the appropriate adult, amendments should be made to alter the definition of an appropriate adult to include social workers working in a local authority. Conversely, it is vital to ensure translate all cautions into Welsh28. This translation will ensure that the police are able to caution Welsh-speaking 17 year olds being interviewed thus deter risks of legal challenges arising during court proceedings. Conclusion The principles that govern the treatment of 17 year olds while at the police station must uphold their best interests. Based on the examination of PACE and other relevant laws, it is evident that the present treatment of 17 year olds, in custody, does not meet international provisions on children’s rights. Both the court and international legal principles hold that 17 year olds should be treated as children within the juvenile justice system. This speaks to the need to amend the present applications of PACE, especially with regard to Code C that deals with the detainment of 17 year olds. This paper has examined the treatment of 17 year olds while at the police station, providing pertinent recommendations to resolve existing issues inherent in this treatment. References Arthur, R., Young Offenders and the Law: How the Law Responds to Youth Offending (London: Routledge, 2010). 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Hoffman, D., and Rowe, J., Human Rights in the UK: An Introduction to the Human Rights Act 1998 (2nd edn.; Harlow, Pearson Longman, 2006).  Home Office. Detainee Risk Assessment and the Prisoner Escort Record (PER) Form 2000. Home Office Circular 032 (London: Home Office, 2000). Jacqueline, M., The English Legal System (4th edn.; London: Hodder Arnold, 2005). Jehle, J.M., Lewis, C., and Sobota, P., ‘Dealing with Juvenile Offenders in the Criminal Justice System’, European Journal on Criminal Policy and research, 14/ 2-3 (2008), 368. Keane, A., and McKeown, P., The Modern Law of Evidence (Oxford: Oxford University Press, 2012). Kilkelly, U., ‘The human rights act 1998: Juvenile justice implications’, Child Care in Practice 6/3 (2000) 279-287. Merris, A., ‘Transplanting Human Rights Norms: The Case of the United Kingdom's Human Rights Act’, Human Rights Quarterly, 35/2 (2013) 386–407. 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