In conflict with the law

In conflict with the law detention, diversion and discretion

Youth crime and delinquency have provoked mixed responses around the world and legislation on criminal offences committed by young people differs from one jurisdiction to another and changes over time. In some countries, there are calls for improved rehabilitation, diversion from criminal proceedings and support for juvenile offenders. In others, more punitive approaches are advocated.

Whereas acts of theft and serious interpersonal violence are commonly considered to constitute criminal offences, alcohol consumption and sexual behaviour in young people are tolerated to varying degrees. Sometimes these differences arise as a consequence of historical or cultural factors and they may be underpinned by religious laws, as in some Middle Eastern countries. Currently, there is no agency whose jurisdiction is tracking worldwide juvenile delinquency but UNICEF estimates that over one million children and young people under 18 are in some type of detention globally.1

International guidelines

The UN Convention of the Rights of the Child supports the establishment of diversion programmes and includes a number of principles that are relevant to young offenders. Other key international standards that concern young

Diversion programmes

Diversion is the placement of youth in programmes that divert them away from the juvenile justice system or from secure detention in a juvenile justice facility. Diversion takes place after they have committed a crime and often involves children who have unstable lives. In some countries, diversion is also used with adult offenders. offenders include “The Beijing Rules”2, “The Riyadh Guidelines” and the UN Rules for the Protection of Juveniles Deprived of their Liberty, or JDL Rules. The UN General Assembly adopted The Beijing Rules on 25 November 1985. The drafting of these rules took place at a conference in Beijing and initially, they were called the Bill of Rights for Young Offenders. They are intended to strengthen the juvenile justice system everywhere.3

Mental health and juvenile crime

Public opinion surveys suggest that many people think mental illness and violence go hand in hand. In one such survey, 60% of Americans thought that people with schizophrenia were likely to act violently toward someone else, while 32% thought that people with major depression were likely to do so.4 In fact, research suggests that such perceived ideas do not reflect reality. Most mentally ill individuals are neither violent nor criminals. Although some people with psychiatric disorders commit offences, findings have been inconsistent about how much mental illness contributes to this behaviour and how much substance abuse and other factors do.5

Nevertheless, some research offers correlations. In the UK, for example, children who end up in custody are three times more likely to have mental health problems than those who do not. They are also likely to have more than one problem, a learning disability and drug and/ or alcohol dependency, for example.6 In the US, between 65% and 70% of the 2 million children and adolescents arrested each year have a mental health disorder and studies also have shown that up to two-thirds of juveniles in the justice system with any mental health diagnosis had dual disorders, most often including substance abuse.7

Overuse of detention of children

Human Rights Watch has reported many examples worldwide. Here are just a few examples: • In Saudi Arabia, girls as well as adult women may be jailed, imprisoned and flogged for vague offenses such as

“seclusion” and “mingling.”

In Chile, El Salvador, Ecuador, Peru and the Philippines, girls who seek or procure an abortion may face criminal charges—even if the pregnancy was the result of rape.

In Egypt, Iran, Maldives, Pakistan, Saudi Arabia, Sri Lanka, Sudan and the Yemen juvenile offenders have been sentenced to death. • In Russia, children with disabilities may be taken to institutions shortly after birth where they may be tied to beds and receive little or no attention or education or health care. Human Rights Watch has found similar abusive practices in

Croatia, Greece, and India. Source hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north

Street and gang activity

Young people roaming the streets have become normal in many urban areas of the developing world, especially in cities characterized by slums. They often have few choices and estimates say tens of millions of children and youth live or work on the streets. The majority are in the most populous cities of sub-Saharan Africa, South America and India.8 Many often become involved in clandestine and informal gang activities and are tempted into criminality for the sake of survival or lured by the idea of fast profits and the need for recognition, approval and protection by peers. Worldwide, the youth most likely to participate in delinquent or violent activities are gang members.

Detention systems

Although young people are held in specific juvenile facilities in some countries, detention conditions may be extremely poor. Furthermore, with dedicated juvenile justice systems absent in many developing countries, young people caught breaking the law often end up incarcerated in inappropriate facilities with adult criminals, putting them at risk on a number of different fronts. In the US, nearly 10% are incarcerated in adult jails and prisons, although there has been progress in the reform of the system in the past 20 years.9 Violence, including sexual violence, bullying, extortion and torture are the most typical forms of mistreatment and abuse inflicted on young people by adult inmates, and sometimes also by staff of such institutions who take advantage of age and power differentials. The good news is that several countries, including Finland, Malta and the UK have agreed to end or sharply reduce detention of migrant children. In France and Israel, the detention of migrant children is limited to “exceptional circumstances.” Panama, Japan, Turkey, and Taiwan have enacted legislation prohibiting detention of migrant children. South Africa’s High Court ruled in a series of decisions beginning in 2004 that migrant children may only be detained as a last resort.10

Preferred responses

Reform in response to juvenile offenders begins with the aim of preventing them from ever encountering the justice system. Failing this, diversion is central. There is evidence that most first-time offenders do not reoffend and that diversion and other community-based schemes are the best responses. These generate better outcomes for young people while still holding them accountable for their actions.

Diversion programmes are common in Australia, Canada, Hong Kong, the UK and the US,11 but they vary in their intervention philosophies. They can be police-led, public service coordinated or restorative. They also feature counselling and skills-building. Policeled programmes include cautioning and warning. The primary goal is to identify the offender’s needs and link them to appropriate community services.12 Nevertheless, imprisonment, including pre-trial detention, is still used frequently for juveniles worldwide, including for young people who have committed minor crimes involving drug use and shoplifting household goods.

Suicidal thoughts

Trauma

Legal problems

Educational disengagement

Homelessness

Family violence

Family troubles that require signi cant family supports

Secual health issues

Abuse neglect and exploitation

Risk signs and symptoms

Social and familial isolation or exclusion

Drug and alcohol addiction

Problematic sexualized behaviours

Offending behaviours

Violent or self-harming behaviours (including radicalisation)

Disability, learning, speech impairments, etc Culture, identity and gender-related issues

Mental health issues/ mental illness

Source

dhhs.tas.gov.au/youth/youth_justice/youth_at_risk

In Hong Kong, diversion includes the Police Superintendent’s Discretion Scheme whereby young offenders aged 10-17 are cautioned rather than having to appear in court.13 Cases may be referred to NGOs such as HKFYG for follow-up. In Britain, the cautioning scheme has been extended to all age groups because of its efficacy and the police now give simple cautions for low-level crimes to adult offenders aged 18 and older. Mainland China’s juvenile justice differs in certain respects from that of western countries. The first recognized juvenile court was established in Shanghai in 1984,14 but although juvenile offenders might be treated slightly differently from adults, the divergence is not yet significant, according to academic research.15 There have been calls from the public for lowering mainland China’s age of criminal responsibility from 14 to 12 but there is also a push for renewed juvenile justice reform that hopes to implement preventive laws to reduce juvenile recidivism through family education, procedural adjustments, and preventive measures. 16

Age of criminal responsibility

Internationally, the minimum age of criminal responsibility varies between 6 and 18 and criminal majority is usually 18 years. The United Nations defines “youth’ as between 15 and 24 years of age. The term “young offenders” can refer to those under 18 and include young adults up to their mid-20s. Belgium is a country with a strong welfare process for youth crime and has a high minimum age of criminal responsibility, 18 years. EU countries generally give 14 or older as the age of criminal responsibility except for France and Poland where it is 13 whereas in both Turkey and the Netherlands it is 12. Hong Kong’s age of criminal responsibility is 10. It was changed from 7 in 2003.17 According to the Juvenile Offenders Ordinance,18 a child is defined as anyone aged 13 or younger. A young person is aged 14 or 15 and anyone who is 16 or older is no longer considered a juvenile offender. He or she would be tried in court same as an adult. Those convicted of an offence aged 10 to 15 are referred to as “juvenile offenders” while those aged 16 to 20 are called “young offenders.” India has 7 as its age of responsibility, the same as was the case in the past in Hong Kong. Macau has a Penal Code according to which persons under the age of 16 are “exempt from punishment” but the minimum age of criminal responsibility is 12. Mainland China has two ages of criminal responsibility: 14 for intentional homicide or intentionally hurting another person so as to cause serious injury or death, rape, robbery, drug-trafficking, arson, explosion or poisoning. For other offences it is 16.19 Consideration is being given to lowering the age to 12 for homicide. 20

New Zealand’s age of criminal responsibility is 10. UK varies; 10 is the age of criminal responsibility in England and Wales but it is 12 in Scotland. US American states vary and some have a criminal responsibility age as low as 6. Note Brazil and India were at time of writing each considering lowering the age of criminal majority, the minimum age for trial in the ordinary criminal courts, for some crimes. If these proposals are enacted in their current form, children ages 16 and over who are accused of serious crimes will be prosecuted in adult courts.

Sources

1. unicef.org/spanish/protection/files/Justice_for_Children_Detention.pdf 2. ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf

3. icjr.or.id/wp-content/uploads/2018/05/The-Use-of-Diversion-in-Juvenile-Justice-Settings-in-Australia.pdf

4. health.harvard.edu/newsletter_article/mental-illness-and-violence

5. thegreatcoursesdaily.com/mental-illness-and-crime-causation-or-correlation/

6. centreformentalhealth.org.uk/youth-justice

7. ncsl.org/documents/cj/jjguidebook-mental.pdf

8. un.org/esa/socdev/unyin//documents/wyr11/FactSheetonYouthandJuvenileJustice.pdf

9.

prisonpolicy.org/reports/youth2019.html 10. hrw.org/world-report/2016/country-chapters/africa-americas-asia-europe/central-asia-middle-east/north 11. onlinelibrary.wiley.com/doi/pdf/10.4073/csr.2018.5 12. theinstitute.umaryland.edu/media/ssw/institute/md-center-documents/Youth-Diversion-Literature-Review.pdf 13. clic.org.hk/en/topics/policeAndCrime/Criminal-Records-and-the-Rehabilitation-of-Offenders-Ordinance/Criminal-Records/Police-Superintendents-Discretion-Scheme/ 14. researchgate.net/publication/339002442_From_Punishment_to_Control_Assessing_Juvenile_Diversion_in_China 15. researchgate.net/publication/281612947_China's_Juvenile_Justice_A_System_in_Transition 16. duihua.org/our-focus/#juvenile-justice 17. scmp.com/article/409141/minimum-criminal-culpability-age-raised 18. elegislation.gov.hk/hk/cap226?xpid=ID_1438402856544_001 19. archive.crin.org/en/home/ages/asia.html 20. caixinglobal.com/2020-10-13/chinas-lawmakers-consider-allowing-12-year-olds-to-be-charged-with-murder-101614314.html