RESPONSE BY THE CHILDREN’S LAW CENTRE TO “MEASURES TO TACKLE ANTI SOCIAL BEHAVIOUR IN NORTHERN IRELAND”


INTRODUCTION

The Children’s Law Centre is an independent charity set up in September 1997 to advise children, their parents/ carers and professionals about the law relating to children in Northern Ireland and about children’s rights from a domestic and international perspective.

There are currently 10 full time members of staff employed at the Centre and one part time member. The staff is comprised of the Director, two solicitors, training co coordinator, international human rights adviser, advice line co coordinator, advice worker, youth rights worker, researcher, education advisory teacher, legal secretary, receptionist and part time administrator.

It is our view that the current proposals contained in this consultation document fall short of international children’s rights standards, that is, the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Minimum Rules for the administration of Juvenile Justice ( the Beijing Rules).

Furthermore, the introduction of anti social behaviour orders and anti social behaviour contracts which would apply to children from the age of 10 is in our view incompatible with the overall aims of the Criminal Justice Review and the Justice (NI) Act 1998.

Our comments relate to the applicability of anti social behaviour orders, anti social behaviour contracts and parenting orders to children and young people under the age of 18.




THE IMPLICATIONS OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND OTHER INTERNATIONAL HUMAN RIGHTS STANDARDS

It is our view that discussion about “tackling anti social behaviour” which impacts on children and young people should be set within the framework of the United Nations Convention on the Rights of the Child, the Beijing Rules, the Riyadh Guidelines and also should take into consideration all relevant recommendations of the United Nations Committee on the Rights of the Child.

Background to the United Nations Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (The UNCRC) was adopted by the General Assembly of the United Nations on 20 November 1989 and was ratified by the United Kingdom Government on 16 December 1991.

The United Kingdom Government has therefore given a commitment to implement the terms of the Convention by ensuring that United Kingdom law, policy and practice relating to children is in conformity with UNCRC standards.

Every 5 years the governments of signatory states are required to lodge a report with The United Nations Committee on the Rights of the Child about progress on the implementation of the Convention and hearings are held in Geneva where the Government is cross examined. Non - governmental organisations may also lodge reports about their concerns regarding implementation.

The UK Parliamentary Joint Committee on Human Rights in its recent report on the UNCRC described the obligations the Convention places on government as follows;

“It should function as a set of child- centred considerations to be used by all departments of government when evaluating legislation and policy making”

The key principles of the UNCRC which are relevant in the context of this consultation document are set out below;






Key Principles of the Convention

ARTICLE 2

“ State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his /her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

ARTICLE 3

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”


ARTICLE 12

“ State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose the child shall be given the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body in a manner consistent with the procedural rules of national law.”


ARTICLE 40 UNCRC

“1. State parties recognize the right of every child alleged as, accused of or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, State Parties, shall, in particular, ensure that:

a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
i) To be presumed innocent until proven guilty according to law;
ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
iii) To have the matter determined without delay by a competent independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance, and unless it is considered not to be in the best interests of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
iv) Not to be compelled to give testimony or to confess to guilt; to examine of have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent independent and impartial authority or judicial body according to law;
vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
vii) To have his or her privacy fully respected at all stages of the proceedings.

3. State parties shall seek to promote the establishment of laws, procedures authorities and institutions specifically applicable to children alleged as, accused of or recognized as having infringed the penal law and, in particular,

a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law
b) whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

4. A variety of dispositions, such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well being and proportionate both to their circumstances and their offence.




Relevant Recommendations of the United Nations Committee on the Rights of the Child

The United Nations Committee on the Rights of the Child considered the second periodic report of the United Kingdom on 19 September 2002 and issued concluding observations dated 4 October 2002. A copy of these concluding observations is attached at Appendix One to this submission. With respect to article 3 UNCRC, the Committee in line with previous recommendations recommended that the government should ensure that the “best interests of the child should be the paramount consideration in all legislation and policy affecting children and young people , notably in the justice system.”

With respect to article 12 UNCRC, the Committee recommended that the government should take steps to ensure that legislation governing procedure in courts and administrative proceedings ensured that children capable of forming their own views had the right to express those views and that they would be given due weight.

With respect to the administration of youth justice the Committee welcomed the initiatives which had introduced restorative justice and other constructive community based disposals for juvenile offenders, but noted with concern the low age of criminal responsibility which we have (10 in Northern Ireland) and the introduction in England and Wales of orders under the Crime and Disorder Act 1998 which in the Committee’s view may violate the principles and provisions of the Convention. The Committee also expressed concern about the privacy of children involved in the criminal justice system which was not always protected.

The Committee recommended that the government should establish a youth justice system which fully integrates into its legislation, policies and practices the provisions and principles of the Convention, in particular articles 3, 37, 40 and 39 and all other relevant international standards. In particular the Committee recommended that the government should significantly raise the age of criminal responsibility, review the new Orders introduced by the Crime and Disorder Act 1998 and make them compatible with the principle and provision of the Convention and ensure that the privacy of all children is protected when they come into conflict with the law in accordance with article 40 (2) UNCRC.

THE UNITED NATIONS STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE JUSTICE (THE BEIJING RULES)

A copy of the Beijing Rules is attached to this submission at Appendix 2.In the context of anti social behaviour orders and anti social behaviour contracts, we would draw particular attention to Rule 4.1, Rule 5.1, Rule 7.1, Rule 8, Rule 11.

“Rule 4.1 in those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity

Commentary

The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is whether a child, by virtue of his or her individual discernment can be held responsible for essentially anti social behaviour. If the age of criminal responsibility is fixed too low or if there is no age limit at all, the notion of responsibility would become meaningless.”

“ Rule 5.1 The juvenile justice system shall emphasise the well being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offender and the offence”

“Rule 7.1 basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to presence of a parent or guardian, the right to confront and cross examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of the proceedings”

“Rule 8 The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or in the process of labelling.
In principle, no information that may lead to the identification of a juvenile offender may be published”

“Rule 1.11 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority.

11.2 The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases, at their discretion, without recourse to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these Rules.

11.3 Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or his or her parents or guardians, provided that such decision to refer a case shall be subject to review by a competent authority, upon application

11.4 In order to facilitate the discretionary disposition of juvenile cases, efforts shall be made to provide for community programmes such as temporary supervision and guidance, restitution and compensation of victims.”





THE UNITED NATIONS GUIDELINES FOR THE PREVENTION OF JUVENILE DELINQUENCY (THE RIYADH GUIDELINES)

A copy of the Riyadh Guidelines is attached at Appendix 3 of this document. These guidelines emphasise the importance of preventative strategies and programmes to divert children and young people away from offending behaviour and emphasise the importance of education, family support and community based services which respond to special needs, problems, interests and concerns of young people. It is recommended in these guidelines that communities should provide, and strengthen where they already exist, a wide range of community based support measures and educational opportunities for children and young people, including community development centres, recreational facilities and services to respond to the needs of children and young people who are demonstrably endangered or at social risk.

THE CURRENT LEGISLATIVE FRAMEWORK IN NORTHERN IRELAND

The Criminal Justice Review, after detailed consideration of the youth justice system in Northern Ireland and widespread consultation, recommended the development of restorative justice approaches for juvenile offenders.

“We believe that restorative justice might be particularly useful in dealing with juvenile offenders without a long history of criminality but whose offending is a matter of real concern to local communities.”

It was recommended that restorative justice should be integrated into the juvenile justice system and its philosophy in Northern Ireland, using a conference model ( youth conferences) based in statute, available for all juveniles ( including 17 year olds once they come within the ambit of the youth justice system ) subject to the full range of human rights standards.

The implementation of these restorative approaches is evident in the provisions of Part 4 of the Justice (NI) Act 2002 which provides a statutory basis for youth conferences, reparation orders and community responsibility orders, all of which, it is submitted are restorative approaches. The restorative approach is also evident in the new Youth Diversion Scheme introduced by PSNI in September 2003 which has a stated aim of providing “an effective, equitable and restorative response to all children and young people throughout Northern Ireland who have offended or are at risk of offending or becoming involved in anti social behaviour”.

In addition there is a current legal obligation on health and social services trusts in Northern Ireland under articles 17 and 18 of the Children (NI) Order 1995 to provide services for children and young people in need – Schedule 2, paragraph 8 of the Children (NI) Order 1995 requires authorities (Trusts) to take reasonable steps designed to reduce the need to bring criminal proceedings against children and young people within their areas and to encourage children and young people within the authority’s area not to commit criminal offences.

It is our submission that anti social behaviour orders and acceptable behaviour contracts did not form part of the recommendations of the Criminal Justice Review, nor of the subsequent Implementation Plans or implementing legislation (the Justice (NI) Act 2002). We are not of the view that anti social behaviour orders or acceptable behaviour contracts which are essentially punitive in nature sit easily within an overarching preventative/restorative justice framework for children and young people.


WOULD ASBO’S BE AN EFFECTIVE MEASURE FOR DEALING WITH ANTI SOCIAL BEHAVIOUR IN NORTHERN IRELAND?

The Children’s Law Centre urges government to reconsider the implications of the proposal to introduce anti social behaviour orders which would apply to children and young people over the age of 10. We object to the application of anti social behaviour orders to children and young people under 18 on a number of grounds as set out below:


The United Nations Convention on the Rights of the Child and other International Children’s Rights Standards

The proposals to introduce ASBO’s which would apply to children and young people is incompatible with the provisions as set out above of the United Nations Convention on the Rights of the Child, the Beijing Rules and the Riyadh Guidelines.

The Human Rights Act 1998 incorporating the European Convention on Human Rights

The proposals fail to have regard to the implications of articles 6, 8, 11 and 14 ECHR as incorporated by the Human Rights Act 1998.

Section 75 of the Northern Ireland Act 1998

The proposal will undoubtedly have an adverse impact on children and young people and we are of the view that the statement on page 14 in respect of section 75 of the Northern Ireland Act 1998 which asserts that these proposals are not likely to have an adverse differential impact is incorrect as experience in England has shown that anti social behaviour orders have been used frequently against children and young people. In addition the consultation document itself at page 1 states that ABC’s will be most commonly used in respect of children and young people. It is our view, therefore that there is likely to be an adverse differential impact between persons of different age.



Criminal Justice Review/Restorative Justice Framework

The proposal is punitive and places an emphasis on enforcement and exclusion – we are of the view that this in not in keeping with an overarching restorative justice strategy for children and young people in our youth justice system as envisaged by the Criminal Justice Review, the Justice (NI) Act 2002 and the PSNI Youth Diversion Scheme.
In particular, we are concerned that youth conferencing which is based on a restorative approach has only just been introduced in Northern Ireland and is at present being piloted - in our view the introduction of ASBOs which would apply to children and young people inconsistent with this approach.


Grounds for Obtaining ASBOS

We are concerned by the wide, subjective grounds for obtaining an anti social behaviour order in section 1 of the Crime and Disorder Act 1998 which applies to England and Wales. In this regard we viewed with particular concern the categorisation in this consultation document of “teenagers hanging around” as a category of anti social behaviour (page 10). Such a categorisation fails to take into account the lack of amenities for children and young people in many areas of Northern Ireland.

In respect of referral mechanisms we have been concerned to note that the Youth Justice Board and local authorities in England have adopted a Risk Factors Screening Tool which specifies 29 risk factors including holding negative beliefs and attitude (supportive of crime and other anti social acts), family involved in offending or anti social behaviour, poor family relationships, friends involved in anti social behaviour, underachievement in school and “ hanging about with others involved in anti social behaviour”.

Standard of Proof

We have noted that although these orders are civil orders the courts in England have confirmed that the standard of proof should be closer to the standard required in criminal cases i.e. beyond reasonable doubt. We have also noted that because the ASBOS are civil orders hearsay evidence can be admitted and the court can rely on expert witnesses. It is our view that if the child or young person is not given the opportunity to participate in the hearing or challenge the evidence against him or her that his/her rights under Article 6 ECHR as incorporated by the Human Rights Act 1998 may be infringed.

It is a well established principle that article 6 ECHR applies to certain civil as well as criminal proceedings. The European Court of Human Rights in the case of T & V v UK (in the context of criminal proceedings) found that in order for children and young people to have a fair hearing they must be able to participate in and understand the proceedings in which they are involved.

In addition if the anti social behaviour order contains conditions, which require the young person to move out of the area in which he or she lives, this could constitute a breach of the right to family life under article 8 ECHR. It has been established by the European Court of Human Rights that there is an inherent right to procedural fairness under article 8 ECHR and that any interference with the right to family life must be in accordance with law, legitimate and proportionate. It is our view that these arguments are given further weight by the fact that breach of an ASBO will be a criminal offence, the maximum sentence for which is five years imprisonment.

Child Protection Implications

The fact that there are no automatic reporting restrictions in respect of anti social behaviour orders is a matter of particular concern. International children’s rights standards require respect for the privacy of children and young people who come into contact with the justice system. We are aware of the headlines in newspapers in England with photographs of children and headlines such as “Get Out and Stay Out”, “Thug at 13” and “First Yobbo to be Barred”. Such publicity breaches international children’s rights standards and puts the safety of the children and young people concerned at risk. In a recent article, Phil Scraton, on the subject of anti social behaviour orders and children said;

“Children neither charged with nor convicted of any criminal offence, have been named and shamed ruthlessly. As they are not covered by youth court regulations reports restrictions have to be requested. In each case communities ere invited to note the conditions attached to the ASBOS and report any breach to the authorities. As the academic debate regarding ‘responsibilisation’ and ‘communitarianism’ continues, it has become clear that in the public domain the responsible community is mobilised as a blunt instrument to regulate, marginalize and punish children and young people whose behaviour has been labelled in some way as anti social. Far from selective and exceptional use, the popular and much publicised assumption is that ASBOs apply primarily to the behaviour of children and young people.”

We have particular child protection concerns about the publication of children’s identities in a Northern Ireland context. The Children (NI) Order 1995 places strict reporting restrictions on children’s cases and we would expect similar standards to apply in all cases relating to children and young people.




Length of the Order

The Crime and Disorder Act 1998 specifies that an anti social behaviour order has effect “for a period (not less than two years)”.The consultation document does not indicate the proposed length of such orders in Northern Ireland and clarity is needed in respect of this.

Sanctions for Breach

We have noted with concern that in England breach of an ASBO is a criminal offence, for which the maximum sentence on indictment is five years imprisonment. We have also noted with concern that ASBOS can be imposed in addition to a criminal conviction and sentence and can impose restrictions for up to five years as this would appear to create a system of licence for children and young people of potentially lengthy duration. In our view, the fact that these orders can result in a child or young person ultimately being subject to criminal sanctions reinforces the need to ensure that children and young people are afforded a fair hearing during the course of all proceedings leading to this conviction. We have noted that the Magistrates Courts (Anti Social Behaviour Orders) Rules 2002 in England and Wales allow for an interim anti social behaviour order to be made without notice to the defendant – in our view this does not afford a child/ young person their right to a fair hearing or meet the requirements of article 12 UNCRC .


OFMDFM Strategy for Children and Young People

The Strategy for Children and Young People being developed by the OFMDFM is aiming to put the rights and needs of children at the heart of policy development in Northern Ireland. We support this rights based, whole child perspective and it is our view that the proposals for anti social behaviour orders which would apply to children and young people do not reflect this perspective and do not recognise the complexity of some children’s lives. We are of the view that resources should be focused on preventative, early intervention strategies which focus on the best interests of the child and the support of the child’s family.


Would Acceptable Behaviour Contracts be an Effective Means of Dealing with Anti Social Behaviour in Northern Ireland?

The proposals in relation to acceptable behaviour contracts are not in our view compatible with international children’s rights standards as set out above or with a restorative justice framework.

We are concerned by the proposal that the fact that a child or young person has been subject to an acceptable behaviour contract can be used in evidence when applying for an ASBO. ABC’s are allegedly voluntary agreements and evidential issues arise when the breach of a voluntary agreement is used to incur potentially criminal liability. This concern is heightened by the indefinite length of time during which an ABC could be used as evidence upon which an application for an ASBO could be used and the fact that the proposal is that the ABC agreement will be drawn up with the child and his/her parent. There is no provision for a legal representative or advocate to be present and we would suggest that consideration should be given to the implications of article 6ECHR in relation to these proposals.


The Children’s Law Centre

31 March 2004