Response to the Northern Ireland Consultation on the Draft Criminal Justice (Northern Ireland) Order 2005



                                                      Children’s Law Centre
                                                                        And
                                                                Include Youth


                                                                    June 2005

Introduction

Thank you for the opportunity to respond to the above consultation. Our response is in the context of correspondence of 8 June 2005 (appendixed to this response) to the NIO in respect of the NIO’s equality duties which should be discharged in advance of any further progression of this draft legislation.
The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, their rights respected and guaranteed without discrimination and every child can achieve their full potential.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/information/representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth @ clc.
Our organisation is founded on the principles enshrined in The United Nations Convention on the Rights of the Child (UNCRC), in particular:
• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interests.
• Children have the right to have their voices heard in all matters concerning them.
Include Youth promotes best practice with young people at risk of social exclusion. We achieve this through the development and promotion of resources, the provision of training, information and support of practitioners and organisations. We also undertake activities which attempt to influence public policy and public awareness locally and nationally.

Include Youth promotes the development of positive choices and opportunities for vulnerable and challenging young people whether in the community, residential care or custody. Include Youth promotes the use of community alternatives to care and custody for children and young people.

Amongst the young people at risk with whom, and on whose behalf Include Youth works are young people from socially disadvantaged areas, those with a learning disability, those with special needs, those who have been truanting, suspended or expelled from school, those from a care background, those who have had a negative parenting experience, young people who have committed or are at risk of committing crime, misusing drugs or alcohol, undertaking unsafe sexual behaviour or other harmful activities, or of being harmed themselves.


General Comments
The Children’s Law Centre (CLC) and Include Youth believe that ASBO Orders breach international human rights standards including the United Nations Convention on the Rights of the Child, the Beijing Rules, the Riyadh Guidelines and the European Convention on Human Rights. We believe they were introduced into this jurisdiction in breach of s75 of Northern Ireland Act 1998 and this current consultation also breaches the NIO’s statutory duty under s75 by failing to consult on the policy which informed the legislation, “screen in” the policy and legislation, carry out an Equality Impact Assessments in respect of both and by failing to consult directly with children and young people. We requested information in respect of this matter by letter of 8 June 2005 in respect of which we have not yet received a reply. We reference the Equality Commission Investigation Report approved by the Commission on 27 April 2005 in response to a complaint lodged under Schedule 9 Northern Ireland Act 1998 by 10 NGOs. We also believe that the use of ASBO’s against children present very serous child protection issues. For ease of reference we attach a copy of our submission to the NIO’s consultation “Measures to Tackle Anti Social Behaviour in Northern Ireland”. The concerns we raised in that response prevail in respect of the current consultation and we would request it be viewed as an integral part of our current response.


Detailed Comments

We note the report published on 8 June 2005 by Mr Alvaro Gil-Robles, the Commissioner for Human Rights, Council of Europe. We refer to pages 34-37 of same and recommendations 19-23 which are particularly pertinent to this consultation. . He states that ASBOs are “particularly problematic” and states that “The ease of obtaining such orders, the broad range of prohibited behaviour, the publicity surrounding their imposition and the serious consequences of breach all give rise to concerns.” Given the declared intention of the Order in respect of ASBO’s is to legislate for additional powers we would respectfully submit that the NIO should give full consideration to this authoritative report before proceeding. The Commissioner’s comments in paragraphs 108-120 have considerable bearing on the proposed draft legislation and should be considered in full alongside his recommendations. The Children’s Law Centre would however like to draw particular attention to a number of concerns and recommendations within the Commissioner’s report which we believe are particularly relevant in this instance.

In paragraph 116 of his report Mr Gil-Robles outlines his concerns re the blurring of the boundaries between the civil and criminal justice systems. The very inclusion of provisions relating to ASBOs, which the NIO describe as civil orders, in legislation relating to criminal justice further blurs the already near invisible line between ASBO’s and the criminal justice system. If the intention was to amend the Anti Social Behaviour (Northern Ireland) Order 2004 the NIO should have introduced ASBO specific policy and legislation and consulted in respect thereof.

In paragraphs 111-114 of his report the Commissioner, in the strongest terms, notes his concerns re the ease with which ASBOs are obtained and the pressure on relevant authorities and indeed Magistrates to seek and impose ASBOs. In respect of Article 2 of the draft legislation in paragraph 114 the Commissioner states “I understand that consideration is currently being given to allowing individuals, or groups of individuals, to apply for ASBOs directly. This development should be strongly discouraged – the pressure of magistrates to award ASBOs is already considerable. Some form of responsible screening of ASBO applications by a responsible authority seems to me to be at least a minimum guarantee against excessive use.” This comment is reflected in Recommendation 21 of the Commissioner’s Report which recommends “Restrict the ability to apply to the courts for Anti-social Behaviour Orders to the Authorities currently invested with this right.” We share the Commissioner’s concerns and would be of the view that the proposed amendments in Article 2 should, to quote the Commissioner, “be strongly discouraged”. The NIO should give effect to recommendation 21 of his report: by removing Article 2 from the draft legislation.

Further it is not insignificant that the Commissioner has aired concerns in respect of the ASBO Guidelines under which relevant persons operate. Despite constituting policy for the purposes of s75 of the Northern Ireland Act 1998 the guidance currently operative by the current relevant persons has never been consulted on. It would be the opinion of the Children’s Law Centre that the guidelines are flawed, not human rights compliant and their operation will inevitably lead to breaches of children’s rights. The potential for such breaches will obviously increase significantly with the extension of the number of relevant persons. We have serious concerns re the quality and quantity of training on ASBOs, the guidance and human rights received by the current relevant persons. Were the list of relevant persons extended to include for instance individuals where no opportunity for operation of guidance and or training would exist, the potential for human rights abuses, vexatious litigation, the wasting of the Courts time at a considerable cost to the public purse is huge.

We further note the Commissioner’s concerns re empowering individuals to seek ASBOs. Noting this we would be particularly worried about the proposed Article 2 of the draft legislation which would enable the Secretary of State to empower individuals to seek ASBOs in the first instance or to bring proceedings for an offence in respect of a breach of an ASBO. Such empowerment especially in a small jurisdiction would lend itself to abuse and vigilantism. Empowering individuals to act in this way raises the general human rights concerns iterated in the Commissioner’s report however it is our belief that these are significantly aggravated by the fact that Northern Ireland is a society emerging from conflict.

Further, given the demonisation of children in our society the Children’s Law Centre would be particularly worried that the expansion of the “relevant persons” and the possible inclusion of individuals will result in an avalanche of ASBOs being sought against children for “hanging around” with the inevitable criminalisation of children for what may be annoying behaviour to adults but is not criminal. The demonisation of children including by the media will also feed the concerns aired by the Commissioner when he states “determination of what constitutes anti-social behaviour becomes conditional on the subjective views of any collective” leading, as he stated, to circumstances where “such orders look like personalised penal codes, where non-criminal behaviour becomes criminal for individuals who have incurred the wrath of the community,” consequently he commented “I do, however, question the appropriateness of empowering local residents to take such matters into their own hands.”. The proposals in Article 2 of the draft order will feed what the Commissioner describes as “ASBO-mania.”

On a reading of the proposed amendment the proposed Article 2 would enable the Secretary of State to legislate without compliance with s75 of the Northern Ireland Act 1998. This is totally unacceptable. In the light of above the Children’s Law Centre would be totally opposed to enabling the Secretary of State to legislate in the way provided for in the proposed Article 2.

In respect of the proposed provisions on ASBOs on conviction we again refer the NIO to Mr Gil-Robles report paragraphs 115-116 and in particular his serious concerns about the blurring of the lines between civil and criminal judicial process “I find the combination of a criminal burden of proof with civil rules of evidence rather hard to square” and the potential to breach Articles 5 and 6 of the ECHR. It would be our contention that no where is this more evident that in respect of ASBOs on conviction. ASBOs on conviction are we believe a double jeopardy. If a child has received a determination in respect of a criminal offence to then impose an ASBO using hearsay evidence and a lower standard of proof is to doubly punish the child in a criminal court for something that is not a crime using civil standards of proof, hearsay evidence and “professional witnesses”.

Further the use of ASBOs on conviction leads to the nonsense that a child for their own protection would be afforded anonymity in respect of a criminal act in respect of which they have received due process while being named and shamed for a non criminal act in respect of which their Article 6 rights are potentially abused. An equally absurd scenario is the potential of an imposition of a 5 year sentence in respect of a civil order given in a criminal court for a non criminal act while the children, recognising their particular vulnerability enjoy the “protection” of limited determinations in the same court for a criminal act. The proposed Article 3 further undermines the breaches of children’s rights introduced by ASBOs in that there is a breach of natural justice in empowering a court to protract proceedings after the matters in respect of which the child was before the court, have been completed. It could be argued that effectively the child is being subjected to a second trial and receiving a double punishment. We believe Article 6 ECHR is engaged here and potentially Article 5 if the child is arrested under warrant. International human rights standards and best practices demand that children who are processed through the criminal justice system are done so speedily. Adjourning proceedings for the purposes of imposing an ASBO on the back of criminal proceedings is we believe breaching Article 40 (2) (b) (3) of the UNCRC especially in the context of the current delay in the administration of criminal justice as it relates to children.

In the absence of a consultation on the policy which has informed this legislation the Children’s Law Centre fails to understand why there is a need for adjournments in respect of ASBOs on conviction or Interim ASBOs on conviction. The intended recipient of the ASBO will have been before the court and given the delay in criminal proceedings all parties will have had sufficient notice to enable proceedings in respect of any potential ASBO to be heard immediately on conviction. Adjournments and interim ASBOs are we believe an abuse of due process and in breach of the child’s Art 40 UNCRC rights.

Noting the proposal under Article 2 to empower the Secretary of State to extend the “relevant authorities” possibly to include individuals, the proposals in Article 5 to allow ASBOs to specify “relevant authorities” as “specified authorities” for the purposes of the proposed Article 6 (B) and Article 7 of the 2004 Order is highly alarming. For the reasons detailed above and noting the Commissioner’s report and recommendations such extension of powers to an extended list of relevant authorities, which potentially includes individuals, seriously undermines due process and in the context of a society emerging from conflict will fuel the vigilantism that has to date manifested itself in “punishment beatings” and “exiling”. Again we reiterate that this is particularly serious in the context of the potential custodial sentence for breach given the lower burden of proof, the admission of hearsay evidence and the use of “professional witnesses”. In the context of the blurring of civil and criminal proceedings especially in respect of ASBOs on conviction and breach of ASBOs, individuals who are designated “relevant authorities” by the Secretary of State are being “elevated” to the status of prosecutors. The fears detailed by Mr Gil-Robles in paragraphs 110-111 of his report will be exacerbated by this proposal. Further this proposal flies in the face of recommendation 21 of his report.

In respect of children the proposed Article 5 raises and increases child protection concerns if the relevant authority list is increased. If an extended list of specified authorities is notified in respect of ASBOs and especially ASBOs on conviction, then even when reporting restrictions have been imposed by the Court, it will almost be inevitable that the child’s identity will be disclosed. This will happen not just in respect of the ASBO but also in respect of the original charges, which as criminal proceedings and in compliance with international human rights standards, continue to enjoy protection for the child. As a consequence the child will be identified to those who would seek to do him/her harm outside of the rule of law. The nature of our jurisdiction i.e. size and segregation increase the inevitability of identifying children as a result of this proposal.

We have registered our concerns in respect of the restrictions re: application to discharge ASBOs made under Article 6 (11) of the 2004 Order exacerbated by the provisions of Article 6 (7). Our concerns are further increased by the provisions of the proposed Article 6 (B) (15) which will vest not only in the Chief Constable but also relevant authorities (and potentially individuals) the power of veto in respect of any application to discharge an ASBO. In the context of Article 6 (7) and (11) this power of veto is effectively allowing a non judicial body to extend the “sentence” for a non criminal act. We also note that “consent” is not qualified i.e. it does not have to be reasonable. These proposals we believe are in total breach of natural justice and undermine the authority of the court.

We note the provisions of the proposed Article 6. We would submit that the protection afforded in respect of reporting restrictions should be in compliance with international human rights standards and be extended to cover all ASBO proceedings involving children including cases where an ASBO is being sought against a child.

For reasons detailed above we are very concerned in respect of the proposed extension of the power of Councils and the Housing Executive to bring proceedings for breach not just when they are the relevant authority but also when they are the specified authority. This effectively allows these authorities to assume a “prosecutors” role in respect of non criminal acts incurring a potential 5 year custodial sanction in circumstances where they have no knowledge in the first instance and have not been involved in proceedings which resulted in the original ASBO. We note the comments of the Human Rights Commissioner in paragraph 112-113 of his report. We share his concerns that the pressure authorities are placed under in respect of ASBOs is being reflected in the number of ASBOs. Noting his comment in Paragraph 116 in respect of breach of ASBOs, the percentages of breaches which incurred custodial sentences and the huge potential for breach of Article 5 of the ECHR, we believe it is totally unacceptable and in breach of international human rights standards including Article 6 ECHR and the UNCRC, to increase the powers of these non criminal justice public authorities in circumstances where a child potentially could be imprisoned for 5 years for a non criminal act.

We welcome the extension of civil legal aid provided for under Article 8.

We believe the proposed legislation presents an opportunity for government to repeal Articles 12 (3) and part of Article 13 (1) (b) of the Criminal Justice (Children) (Northern Ireland) Order 1998, both of which run contrary to the best interests principle, and the principle of using custody as a measure of last resort and for the shortest appropriate time, as laid down in the UNCRC and the Beijing Rules.

It is our view that Article 12 (3) is unreasonably wide in its remit, and potentially brings young people charged and convicted within a two year period of very minor offences – ‘any arrestable offence’ - within its scope. This provision clearly makes it more likely that children and young people will be entered into the sharp end of the youth justice system at an inappropriately early stage and for relatively low level offending, which ought to be dealt with through diversionary and restorative measures, in line with both international standards and recommendations of the Criminal Justice Review.

In addition, we oppose legislative provisions which provide for the detention of children alongside adults, contrary to the UNCRC, the Beijing Rules, and the recommendations of the UN Committee on the Rights of the Child. In particular, we wish to draw your attention to Article 13 (1) (b) of the Criminal Justice (Children) (Northern Ireland) Order 1998, which provides that 15 year old children, who are at risk of harming themselves, can be committed to custody within the YOC. It is crucial that such deeply troubled and vulnerable young people, who may have a range of complex needs, including significant mental health issues, are cared for in an appropriate manner, and that necessary therapeutic and other services are provided in a safe and nurturing environment. In addition, it is our view that troubled young people aged 15 years or over and who are deemed to be at risk of harming others, should not be placed in the Young Offenders Institution. If it is found to be necessary to detain these young people, then they should be detained separately from adults, and engaged with in compliance with international standards. It is our view that this article should be repealed and that measures should be put in place to ensure that these vulnerable young people are provided with services and placements which are in their best interests.