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In England and Wales, the age from which children can be arrested, detained at police stations and questioned as part of an investigation is 10, writes Harriet Balcombe. This is called the age of criminal responsibility and is amongst the lowest in Europe. The law does provide for special measures to safeguard the welfare and rights of children in police custody up to their 17th birthday, but as a practitioner, I have been concerned for some years that these very measures might in some cases actually undermine those rights. My recent academic research suggests that my concerns are valid.
One of these special measures is the diversion system, which, for children, is provided for by statute. Diversion is a less draconian disposal than prosecution for a suspect who admits an offence and meets various conditions. It means that the suspect avoids going to court and the matter concludes at the police station stage. This is also known as a pre-court disposal.
Diversion is often viewed as a metaphorical slap on the wrist with no further consequences; but this is a simplistic view.
Adults are diverted via non-statutory cautions to which they are required to consent. Children (here, anyone from 10 years to 18) are currently subject to reprimands or final warnings under the Crime and Disorder Act 1998, but these will be replaced by youth cautions when the relevant section of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is implemented. Both schemes share aspects which may well undermine the legal rights of child suspects.
Final Warning Scheme
The conditions, to be determined by the police, under which a reprimand or final warning may be given under the current scheme are:
If these conditions are met, a reprimand may be given if the child has not been previously reprimanded or warned. The child may be warned if either they have not previously received a warning or if at least two years have elapsed since the date of a previous warning and the offence is not serious enough to warrant charging. The warning or reprimand must be given in the presence of the appropriate adult if the child is under 17. Unlike the adult cautioning system, which is governed by a Home Office Circular implying that the suspect’s consent is required, there is no condition for either the child or the appropriate adult to consent to a final warning or reprimand.
Youth Conditional Cautions
Youth conditional cautions are currently being piloted in some areas. These can be given if the child suspect has no previous conditions and if certain conditions are met, including:
When s.135 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is implemented, it will amend the Crime and Disorder Act 1998 to provide for youth cautions. The system will be simplified, and the conditions for a youth caution will be:
There is no requirement for consent, although the youth caution must be given in the presence of the appropriate adult (for children under 17) and the implications of the diversion must be explained. The changes do appear to allow the police more discretion, for example to impose a youth caution on a child who has a previous conviction. The problematic issues of consent, unreliable admissions and unrepresented child suspects are not resolved, however.
Consequences of diversion
Although these disposals are not convictions, there are some circumstances in which they must be disclosed, for example in connection with working with children, sick or vulnerable people, in the administration of justice or where financial probity is an issue. In some circumstances the child must register with the police for inclusion on the sex offenders register. Although registration in these circumstances is for two and a half years, in some cases a person must disclose if they have ever been on the register. Additionally, both reprimands and final warnings can result in restorative processes, and final warnings should normally be supported by an intervention programme. Youth cautions will involve a measure of rehabilitation although we have yet to see how this will take shape.
The two instruments which apply specifically to the rights of children in the criminal justice system are the United Nations Convention on the Rights of the Child (UNCRC) and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). The latter are intrinsically non-binding but are referred to in the preamble to the UNCRC, which was ratified by the UK in 1991.
The Beijing Rules stress, in Rule 11, the importance of a young suspect or their parent or guardian consenting to a recommended diversionary measure. Both the final warning system and the new youth caution system are in conflict with this requirement, as only youth conditional cautions require consent to be given.
The important question regarding the absence of a requirement for consent is whether the imposition of a diversion, and its attendant consequences, may be in breach of a child’s fair trial rights. These are enshrined in Article 6 of The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which was brought into the law of England and Wales by the Human Rights Act 1998.
R v Durham Constabulary, a House of Lords case from 2005, examines this question. R was a 14 year-old boy accused of sexual assault, accompanied in the police interviews by his stepfather as appropriate adult. Both R and his stepfather declined the opportunity to have a solicitor present. Following the investigation, a final warning was given, but it was not until a week later that the full consequences of the final warning were explained, including the obligation to register under the Sex Offenders Act 1997. R’s appeal to the House of Lords centres on the question of whether his fair trial rights were engaged, in that a final warning could actually be equivalent to the determination of a criminal charge. If this were the case, R’s Article 6 rights might have been breached due to the lack of opportunity to consent to, or refuse, the final warning.
The appeal was quashed and the court found that, although the final warning would be recorded on the Police National Computer and his name would be on the Sex Offenders Register, neither of these measures constituted a public announcement or declaration of guilt. Despite the failure of the appeal, however, Baroness Hale made some significant comments criticising the lack of requirement for consent. She professed ‘considerable misgivings because of the potentially serious effects upon the child’s future’ and had ‘grave doubts about whether the statutory scheme is consistent with the child’s rights under the international instruments dealing with children’s rights’ (presumably the Beijing Rules).
She said that reprimands and warnings do carry consequences and that ‘… cumulatively…they amount to a considerable modification of the child’s legal status’. She asserts that many people, including the child, might see these measures as punitive, and calls the recording of the child’s details on the PNC ‘widespread dissemination of the knowledge of [his] guilt’.
In the context of Baroness Hale’s comments, it is concerning that there is no provision for consent in the current scheme and that the situation will not change when youth cautions are implemented. If, at some point in the future, a court adopts Baroness Hale’s viewpoint that a pre-court disposal constitutes a public declaration of guilt, and therefore a suspect’s fair trial rights could be engaged, the lack of provision for consent could then be found to breach the suspect’s rights.
As we have seen, all of these diversionary measures require the child to admit the offence. The codes to the Police and Criminal Evidence Act 1984, which govern the treatment of suspects in police stations, make clear the potential pitfalls of relying on admissions, however:
‘Although juveniles or people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing it or wishing to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating.’
Faced with the choice between prosecution and admitting an offence and as a consequence receiving a reprimand or warning, for example, a child may feel pressurised to opt for the latter. This is precisely the scenario that occurred in M v Leicestershire Constabulary. M was a 13-year old boy, given a final warning for rape. Although consent is not required for a final warning, the suspect must sign a form admitting the offence, and M was told through his solicitor that if he did not sign the form he would be prosecuted. His admission was eventually found to be unreliable and unclear and the final warning was quashed.
Although the child suspect in this case was accompanied by his aunt acting as appropriate adult, and advised by a solicitor, the fear of prosecution still led him formally to admit the offence even though, on further analysis, it was found that the statement and answers he gave did not amount to an admission. In all likelihood, there are a significant number of children every year who receive reprimands and final warnings, and suffer the consequences described by Baroness Hale in the previous case, due to fear of prosecution.
A report from 2011 found that only about a quarter of child suspects requested legal advice when receiving a diversion. This means that 75% of children being reprimanded or warned are admitting the offence based on their own perception and understanding of their position, possibly aided by that of an appropriate adult whose role excludes giving legal advice. While, for some, diversion is the best outcome they could hope for, others may be able successfully to defend the matter in court and emerge without any form of criminal record.
The possible consequences of diversion I have described can amount to much more than a figurative rap on the knuckles, and it is regrettable that a significant proportion of child suspects may be suffering these consequences when they may have had a legal defence, about which they had no idea simply because they had not received legal advice. In my opinion, this situation could be remedied by ensuring more emphatically that both child and appropriate adult are fully aware of the availability of legal advice, and re-stating this specifically before a diversion is imposed.
The new youth cautioning system does improve slightly on the final warning scheme, it would appear. The most worrying aspects of the old scheme, however, will be carried forward. With no provision for consent, the pressure to make admissions due to fear of prosecution, and low uptake of legal advice, the system is not fair and a significant proportion of children could still suffer injustice as a result.