Professor Dame Sue Bailey OBE FRCPsych FRCPE

1. ‘Perspectives on a child friendly youth system National Association of Youth Justice AGM Criminalising Children Unnecessarily? : The Age of Criminal Responsibility15 April 2014 Professor Dame Sue Bailey OBE FRCPsych FRCPE

2. Recent History Late 19 century • Queen Victoria modelled family life • Decrease demand for child labour • Increased emphasis on education 1895 • Gladstone committee • Separation of young people in prison from adults

3. Recent History 1902 • First YP prison in the village of Borstal 1908 • Prevention of Crime Act • Education before punishment for 16 to 21 year olds 1913 • Needs of young offenders recognised as heterogeneous • Mental Deficiency Act allowed DIVERSION of young offenders with learning disability to appropriate institutions.

4. Real Recent History 1996 • Audit Commission "Misspent Youth " • Adolescents committed a disproportionately high number of crimes against the person • But also highlighted paucity of mental health, social care, and educational involvement with young offenders and mandates a multi agency approach 1998 • Crime and Disorder Act • Introduced to reduce offending YJB has been effective. Is the role now diminished?

5. Real Recent History 2006 • Commissioning health care transferred from prison to Primary Care Trusts Now we have Clinical Commissioning Groups So history has gone from Gladstone to CCGs and Coalition

6. ‘Keeping children and young people in the youth court and out of the Crown Court - a discussion paper and proposal’ John Bache Deputy Chairman, Magistrates’ Association Professor Sue Bailey President, Royal College of Psychiatrists Lord Carlile of Berriew CBE QC April 2013 Available via the NAYJ website www.thenayj.org.uk

7. Recent legal and political history The fall of a Doctrine • DOLI INCAPAX - a doctrine of over 700 years standing Required • "The prosecution to adduce the evidence not only that the child had committed the act alleged , but also that he or she knew that behaviour in question was seriously wrong ,rather than just naughty or mischievous" • It thus constituted a filter ensuring consideration of issues of Maturity Capacity and Culpability at the point of charge and trial Applicable up to 14years

8. DOLI INCAPAX • Labour government simply declared the doctrine to be : "contrary to common sense" • The abolition of doliincapax was de facto an act of lowering the age of criminal responsibility.

9. Rehabilitation of Offenders Act - 1974 • "If a 10 year old commits an offence considered to be a ‘grave crime’ he or she will be tried in the Crown Court and may be given a custodial sentence equivalent to that available in the case of an adult“ • Similarly a child of that age co-accused with an adult will be subject to trial in an adult venue.

10. (Hansard, House of Commons, column 171 WH – Crispin Blunt, 8 March 2011) • "Children aged 10 are able to distinguish between bad behaviour and serious wrong doing. It is entirely appropriate to hold them to account for their actions if they commit an offence, and it is important to ensure that communities know that a young person who offends will be dealt with appropriately. We have no plans to change the age of criminal responsibility“

11. (Hansard, House of Commons, column 171 WH – Crispin Blunt, 8 March 2011) Keeping children and young people in the Youth Courts • Why is the crown court inappropriate for children and young people? • Medical and psychological perspective which will expand on : • Legal Background • Solutions • Moving all young offenders to the youth court

12. Medical and psychological perspective • Brain development is a protracted process • Determining the starting point for brain development is fairly straightforward • But ascertaining the end point and the transition point from childhood to adult is more difficult

13. Medical and psychological perspective • Changes in the brain in adolescence are nearly as dramatic as those during infancy • Functional changes influenced by surges of hormones affect brain structure and functioning • Many forms of psychopathology take root during puberty and sex differences emerge

14. Culpability and capacity of children • Children as young as 2 years have some understanding of right and wrong • Ten year olds know the difference between right and wrong • BUT Knowing right from wrong is very different from being able to act in line with it

15. What we know • The development of the pre frontal cortex is particularly important • This is the main location for higher order skills those involved in : • Controlling • Planning • Decision Making • Problem Solving

16. Adolescence • In early adolescence young people are therefore experiencing high levels of emotional arousal BUT • Without the skills available to older adults to either channel it or constrain it "Starting the engine without yet having a skilled driver"

17. A "Just" system • For any system to be a "just" system it can only ; • Accuse • Try and • Sentence Individuals who have the CAPACITY to engage in it

18. Competencies required of a defendant The defendant must be ; • Fit to be interviewed • Fit to plead • Able to effectively participate in trial

19. They will need ; • To understand interview questions and the significance of the answers given • To understand charges and court processes • To decide how to plead • To instruct lawyers • To give evidence • To respond to cross examination

20. Same and Different Not infrequently the same children going through care proceedings go through criminal proceedings

21. Children in early adolescence are ; • More suggestible • More compliant • More likely to act in ways not in their own interest • More likely to confess falsely • And to adhere to this through trial proceedings

22. Children in early adolescence • Therefore does having young people in (however modified) the adult framed Crown Court compromise the ability of the SYSTEM to DISCOVER and ACT on the TRUTH? Which is what all parties want

23. The Memory of a child • Children are especially limited when asked to repeat events that were not repeated and / or occurred months earlier • Children’s memories are also adversely affected when they are being questioned by a ; "Detached" rather than a "Warm" interviewer

24. Therefore We cannot in the crown court deliver parity Tweaking the system is simply insufficient

25. What we know "Antecedents" of young people in criminal justice system ; • Often victims of abuse • Cumulative adverse life experiences Maltreatment impacts on children's Neuropsychological development Making them ; • more emotionally reactive • Less intellectual • And more prone to substance abuse The system, despite best endeavours of those working in it ; • Exacerbates reoffending rates. • Risk of entrenching young people in criminal sub cultures

26. What we know • Research on children aged 10 to through early adolescence demonstrates incontrovertibly they are not capable of participating as defendants in the adult criminal justice system • They have reduced culpability • And are not capable of participating in a crown court setting and process however modified

27. Because of their neuropsychological development these children have very different capabilities than adults

28. We submit It is a deficient system that does not sufficiently recognise this and thereby fails to meet its very three most basic aims. • To deliver justice • To prevent offending • To safeguard welfare

29. Reflections on T and V and others

30. Ways forward • Raising age of criminal responsibility • Choose route in most likely to be considered • To engage politicians who fear public retribution from the public, at the ballot box should they lower the age of criminal responsibility • We need to go round the back and over the hill and do something right now • Start with all young offenders irrespective of seriousness of crime should be dealt with in youth court • This battle won then raising the age of criminal responsibility is more likely but try 14 first (Look at nature of serious crimes in this age range)

31. The composition of the bench to hear cases in the Youth Court could be organised flexibly depending on the case • For grave cases a Youth court presided over by a High court or district judge experienced in such work (Lord Justice Auld 2001)(Recorders) • The Youth Court would provide the best court environment to render justice for all • and would be less traumatic for both defendant • and any child and or vulnerable witness

32. Our paper has called for the proposal to be included in all major party political manifestos for the general election 2015

33. Conclusion NAYJ rightly argue (Bateman 2012) ; • The current age of criminal responsibility is unconvincing in its rationale and unacceptable • It represents a breach of international standards on children’s rights • It does not take account children’s developing capacity • It imputes culpability inappropriately and • It is Illogical, Unnecessary and Damaging

34. Sunflower seeds (Ai Wei Wei) Contact Professor Dame Sue Bailey at ; jmudd@rcpsych.ac.uk till July 2014 then sue.bailey@gmw.nhs.uk after