U.K. Youth Law Ruling May Have Broad Implications

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Hughes Cousins-Chang, a college student from Tulse Hil, south-east London, was arrested by Metropolitan Police and subsequently found to be innocent following a detention that lasted in excess of 12 hours. He’d also endured a strip search at a police station after being arrested on suspicion of a robbery.

A High Court has recently ruled that the 17-year-old was entitled to legal protections, and that U.K. Home Secretary Thereas May violated the law when she failed to act in repealing the legislation in question.

Young lives lost

The ruling followed after the high profile deaths of two 17-year-olds, Joe Lawton and Edward Thornber, who took their own lives after becoming entangled with the police.

Joe’s parents, Nick and Jane Lawton, said that their son would “still be here today” if he had received their support when he was taken into custody on a drinking and driving offence.

Joe was arrested when police stopped him after he drove his new car home from a party. He was held overnight at Cheadle Heath police station in Greater Manchester without his parents’ knowledge.

Two days later, Joe took his own life using the shotgun from the family farm.

Earlier in the day of the High Court’s ruling, Mr Lawton told BBC Breakfast: “If we get the change that we are looking for now, it would have meant that we could have been there to support Joe while he was in the police station and explain to him ‘It is not the end – we can get through this, we can help you and make sure that your future is as bright as you expected it’.”

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Edward Thornber had been sent a court summons “in error” rather than a final warning for possessing 50p worth of cannabis.

“If we had been told and had been informed we would have been able to support Edward going through that crisis and to reassure him that it was a mistake,” said his mother, Ann Thornber.

“He was 17 and he was being treated as an adult when in theory he wasn’t, he was a 17-year-old.”

The former head boy of a Catholic High School, also a Lacrosse star, was found hanged on September 15, 2011. The 17-year-old was a student at Loreto College and was hoping to coach lacrosse in America before going on to attend a university.

In both of these cases, the parents were not informed of the arrests because their sons were treated as adults in custody — even though if they had been actually charged, they would have been treated as children.

The surviving families of both youths said that if the law were changed, it would bring the UK into line with the United Nations convention on the rights of the child, which states that every person under 18 must be treated as a child if they are considered as such in the eyes of the law of that country.

In handing down the judgment, Lord Justice Moses said: “This case demonstrates how vulnerable a 17-year-old may be. Treated as an adult, he receives no explanation as to how important it is to obtain the assistance of a lawyer.

“It is difficult to imagine a more striking case where the rights of both child and parent under article 8 [of the European convention on human rights, guaranteeing family life] are engaged than when a child is in custody on suspicion of committing a serious offence and needs help from someone with whom he is familiar and whom he trusts in redressing the imbalance between child and authority.”

Justice Moses described how, four weeks after his 17th birthday – at 3.55 PM on April 19 2012 – Hughes was arrested on suspicion of robbery of a mobile phone on a bus. He had never been in trouble before.

Shortly after he was taken to Battersea Police Station “he asked that his mother be informed”.

That was not allowed, said the judge. “She did not learn that he was in custody for about four-and-a-half hours after he had been arrested.

An inspector authorised the delay in making a telephone call to his mother, writing: “…as the detained person is in custody for an indictable offence and has not been charged and there are reasonable grounds for believing that the exercise of that right/those rights will hinder the recovery of property obtained in consequence of the commission of such an offence.”

The claimant was released after 11 hours in custody. A month later, he was informed by a letter that his bail was cancelled, and that no charges had ever been brought against him.

17-year-olds as ‘anomoly’

According to the National Appropriate Adult Network, 75,000 17-year-olds are held in police custody in the United Kingdom every year.

A Criminal Justice Joint Inspection entitled Who’s looking out for the children? investigated juvenile detention, with an emphasis on whether the “Appropriate Adult” provisions of recent legislation was being applied by police in the proper manner.

The report, released in 2011, explains that: “The arrangements for Appropriate Adults were introduced under the same legislation that placed reasonable restrictions on the length of time any individual could be held by the police before being charged and taken to court, and thus provided protective measures important for us all. Under its terms, the presence of an Appropriate Adult is required before the police can interview and (where appropriate) charge any unaccompanied children or young person or vulnerable adult to ensure that their rights are met, in effect acting in the role of parent or concerned adult.”

The report continues on to explain: “The need for such a role is self evident. Police station custody areas can be very frightening places for adults, and are all the more so for young people. Children brought into police custody may be traumatised or distressed, or under the influence of alcohol or drugs (or their after-effects). A significant number have communication, learning, language or health needs, and many do not understand what is happening to them or the terminology used.”

This report considers juveniles (children and young people aged 10 to 16 years), because the special provisions of care under the Police and Criminal Evidence Act 1984 (PACE 1984) apply to that age group only. This makes 17 year olds an anomaly. Under all other United Kingdom law and United Nation conventions, a child or young person is considered to be up to 18 years old. However, in a police station, a 17 year old is treated as an adult.

It was that particular legal “anomaly” that the High Court was asked to consider.

As for how the Appropriate Adult provision works in practice for those children who are under 17 years of age, there remains considerable room for improvement. A prepared press release accompanying the report handily broke out some of the more serious problems:

  • Other than in one area, the flow of information between Youth Offending Teams and Appropriate Adults was found to be ineffective.
  • Appropriate Adults frequently knew little about the child or young person and there was evidence that this lack of knowledge hindered their efforts to provide support.
  • Police custody records, an important source of information for the Appropriate Adult, were inadequate, in many cases not correctly completed and lacking in detail.,/li>
  • The physical environment of custody areas (for example, a lack of privacy, noise and physical barriers) did not encourage children or young people to disclose vulnerabilities or special needs.
  • There was a lack of any credible assessment of the quality of service provided by Appropriate Adults. They were found to be passive in interviews and unlikely to challenge the police.
  • Other than in one area, there was a lack of awareness at all levels of both the police and local authority regarding how many children and young people continued to be held in police cells after being charged, and for how long.

Australia’s similar ‘anomaly’

According to a recent column by Madeleine Forster, secondee lawyer at the Human Rights Law Centre in Australia:

There is a similar irony in the way we treat young people aged 17 in the criminal justice system in Australia. In Queensland, 17 year olds are currently incarcerated in adult prisons and are treated more or less like adults in that system, contrary to Lord Justice Moses’ conclusions about the international definition of a child and state obligations to protect the interests of children.

Like the UK, the UN Committee on the Rights of the Child has also criticised Australia for tolerating laws in Queensland that do not prioritise the best interests of 17 year olds in the criminal justice system.

Forster concludes: “Even absent an Australian Human Rights Act, Lord Justice Moses’ judgment is instructive as an advocacy tool in the Australian context. The Lord Justice cites a wealth of domestic and international opinion about the need to protect vulnerable 17 year olds in the criminal justice system including numerous academic findings, governmental statements, judicial pronouncements and international commentary.”

Youth advocates the world over may benefit from an analysis of this learned judge’s ruling.


Sidebar

In April 2013, the Australian Institute of Health and Welfare released Youth justice in Australia 2011-12. The Institute provides a brief summary:

On an average day in 2011-12, there were almost 7,000 young people aged 10 and older under youth justice supervision in Australia due to their involvement or alleged involvement in crime. Most (83%) were male and the majority (79%) were aged 14-17. Indigenous young people were over-represented-although less than 5% of young Australians are Indigenous, 39% of those under supervision were Indigenous.

Among all those aged 10-17 in Australia, this equates to a rate of 26 young people under supervision on an average day per 10,000 in the population, or 1 in every 385 young Australians.



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[2013] EWHC 982 (Admin)
Case No: CO/7772/2012

Suicide boys’ parents in law call,” Express, March 28, 2013.

Joe Lawton and Edward Thornber’s parents petition over death, BBC News, March 28, 2013.

Another blow for Theresa May: human rights law means 17-year-olds in custody must be treated as children,” John Aston, Daily Independent, April 25, 2013.

Police must treat 17-year-olds in custody as children, court rules,” Owen Bowcott, The Guardian, April 25, 2013.

UK High Court of Justice holds 17 year olds should be treated as children in the criminal justice system, Case Notes, Human Rights Law Center, April 25, 2013.