The most frightening thing I’ve seen in almost a decade of acting as a criminal lawyer all over the world, was the sight of a 14 year-old boy sitting behind a very large table awaiting the start of his trial for murder at the Auckland High Court. I acted as part of the defence team fighting to keep him from life imprisonment. He was tried as an adult, because that is what our law requires. I’ve wondered since then about the origins of what seems like a total lapse of logic in our criminal justice system. What is it that makes us so comfortable turning our backs on some of the most vulnerable children in our society? Do we consider that at a certain point a child can be ‘bad’ and undeserving of protection? Is the intense and justified sympathy for victims of serious crime enough to negate the responsibility we have to protect child offenders? Or are there more complex socio-political forces at play?
As a starting point, it is important to note that by trying children as young as 10 years old as adults, or in fact charging these children with criminal offending at all, New Zealand is in breach of binding international law. The Convention on the Rights of the Child (UNCRC) is one of the most universally accepted international treaties (only Somalia and the United States are not parties to the Convention). In New Zealand, UNCRC came into force on September 2, 1990. Among other things, this means we agreed to develop a minimum age below which children are presumed not to have the capacity to commit crime. Internationally, the minimum age below which children should be considered incapable of responsibility for crime is 14 years old. New Zealand is well aware of this, since it has been criticised for breaching this standard on every occasion that the UN Committee on the Rights of the Child has assessed our compliance. It is also worth noting that, even where children aged older than 14 years commit crime, we are bound to deal with them within child-appropriate processes where their interests are paramount, and divert them away from formal justice institutions where possible, until they are adults. We also agreed that a child is someone aged below 18 years, a standard we’ve obviously been in breach of for some time.
After looking deeper into the plight of young offenders, the case of the 14 year-old boy I helped to represent appears demonstrative of all the grave concerns raised by a value system that prioritises punishment over both the rights of children and the fair administration of justice. I was part of the team of lawyers entrusted with representing him at his trial and I can admit now that the weight of the responsibility was almost crushing; none of us had ever worked harder on a case. But there was nothing we could do to protect the child placed in our care from the untold stress and trauma of the two-week trial (held in the same court room as some of New Zealand’s most notorious criminals), from the intense media attention, the police cells where adult offenders were also held, and the nightmare of a lost future at 14. In practical terms, we had trouble communicating with our young client to ensure he understood his rights and had given us all the information we needed to formulate his defence. We found that, like most children entering the criminal justice system, he suffered from mental health issues and learning difficulties, exacerbated by regular school changes as his family struggled to find affordable housing. He and his siblings were also known to CYPS (now Child, Youth and Family) for all the kinds of concerns that usually lead teachers and neighbours to bring authorities into the lives of children and families.
Two equally serious sets of problems arise when it comes to trying children as adults. The first is that we accept that a child as young as 10 years old is capable of the very complex mental requirements of committing serious crime while simultaneously accepting that they are not capable of full cognition when it comes to all lesser crimes. This is out of line with the usual application of legal standards, which are raised not lowered as the seriousness of the crime and consequences of convictions rise. So, in New Zealand, most cases involving child-accused are dealt with by our specialised youth justice system. This system provides specialised lawyers, judges and police teams, and attempts to divert children from formal judicial proceedings or custodial sentences. However, children can be tried as adults where the most serious offences are alleged, starting at 10 years old for murder or manslaughter. We legally strip young people of their status and rights as children, take them out of our model youth justice system and alienate them from any age-appropriate protections we otherwise deem it necessary to provide. Though cognitive development continues to attach to the child’s age rather than the objective consequences of his or her actions, children are suddenly presumed capable of knowing the consequences of their actions, the type and nature of physical harm, assessing risks when they swing a bat or act as lookout for older mates, and knowing the permanence of harm such as death.
The second problem is that the trial itself is unlikely to be fair without specialised processes that effectively meet the needs of children. While in the youth justice context we admit that specialised processes and trained professionals are needed to ensure children are able to engage with information and communicate according to their developmental needs, we routinely rely on verdicts against children resulting from an adult justice process where these safeguards are missing. This might be the only instance in our justice system where procedural standards designed to produce fair and reliable verdicts are actually lowered when an accused faces more serious charges.
That we are so willing to set aside accepted scientific facts about cognitive development and established procedural safeguards suggests that deeper socio-political or cultural forces are at play. It seems to reflect an almost vengeful need to punish these children, even through the act of stripping them of their status as young people. We seem to revert to a basic principle of an eye for an eye, fully focused on the loss caused by the offending to justify the taking of another, very young life through imprisonment and stigmatisation. In the case of the young murder-accused I assisted, the Crown had repeatedly refused to accept a guilty plea for manslaughter. Despite the accused’s acceptance that he had committed an unlawful act resulting in a death, the Crown felt he should go to trial for a more serious, more intentionally harmful crime, one that would result in him being held in prison well into his adult life. High Court trials are very expensive gambles, one the Crown lost in that case, but this indicates how strongly prosecutors believed it was in the public interest to hold this child accountable to the highest possible extent.
This reaction also seems to signal our wilful blindness to the context in which serious child offending takes place, disproportionately involving children from a background of child protection concerns, poverty and mental illness. Added to the socio-economic statistics are ethnic and gender demographic indicators. Children who are arrested and charged with serious crimes are disproportionately Maori or Pasifika boys. When considering this context, it is interesting to note that in another area of our justice system we apply evidence of child cognition very differently. The law deems children incapable of consenting to sexual activity if they are below 16 years old. Even 15 year olds are accepted to lack the necessary mental development to knowingly and intentionally engage in sexual conduct, so the suggestion that a 10 year-old could be anything but a victim in those circumstances is morally and legally obscene. This further leap of logic and inconsistency raises more questions about whom we choose to protect and who we are happy to demonise based on the demographics of youth offending. Are children involved with serious criminal offending victims of institutional biases that see one group as inherent victims and another as perpetrators? Or one group as deserving of protection and another as one society needs to be protected against – or worse, as a lost cause?
The answers to these questions are likely complex and shake our understanding of our institutions and ourselves as fair and free from prejudice. It may be that we don’t need to answer the causes of unfairness and begin instead by deciding to address them.
For me, as a criminal lawyer, the imperative lies in the notion that the criminal justice system needs to be fair because the way a society deals with deviancy is a reflection of the strength and goodness of its value system. But more basic than that is the obligation we have to protect vulnerable children. If serious child offending was treated as a child protection issue, we would admit the empirical truth that this type of offending is most symptomatic of something very wrong in the young offender’s circumstances and their heightened need for protection.
As the Director of the United Nations Office on Drugs and Crime, Yury Fedotov, warned in 2011:
“On any given day, children in conflict with the law encounter violence, including from police and security forces, from adult detainees, from staff at detention centres and from their own peers, while some even attempt suicide. These are the invisible children; our role is to bring their misery into plain sight.”