Raymond Arthur - The Moral Foundations of the Youth Justice System: Understanding the principles of the youth justice system

Raymond Arthur is Reader in Law at Northumbria University, UK, and the author of Young Offenders and the Law (Routledge, 2010). He has collaborated with researchers, practitioners, non-governmental organisations (NGOs) and charities to develop new approaches to responding to youth offending.

Raymond Arthur

First published 2017

by Routledge

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2017 Raymond Arthur

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British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloguing in Publication Data

Names: Arthur, Raymond, author.
Title: The moral foundations of the youth justice system : understanding the
principles of the youth justice system / Raymond Arthur.
Description: 1 Edition. | New York : Routledge, 2017. | Includes
bibliographical references and index.
Identifiers: LCCN 2016026139 | ISBN 9781138781665 (hardback) |
ISBN 9781138781672 (pbk.) | ISBN 9781315769721 (ebook)
Subjects: LCSH: Juvenile justice, Administration of. | Juvenile delinquency.
Classification: LCC HV9069 .A78 2017 | DDC 172/.2dc23
LC record available at https://lccn.loc.gov/2016026139

ISBN: 978-1-138-78166-5 (hbk)

ISBN: 978-1-138-78167-2 (pbk)

ISBN: 978-1-315-76972-1 (ebk)

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by Apex CoVantage, LLC

This book represents a culmination and summation of my work on youth offending and the law over the past seventeen years. As such, I wish to thank colleagues and students at all of the universities I have worked at during this period of time University of Limerick, University of Birmingham, The Open University, Teesside University, and more recently, Northumbria University for their scholarly and friendly support and for the many discussions of the issues raised in this book. I am particularly grateful to Northumbria University for providing me with a period of research leave to complete this work. Thanks also to Heidi Lee, Thomas Sutton and Hannah Catterall at Routledge for their expertise and encouragement in bringing this book to print.

Most importantly, I want to thank Siobhn, who now knows as much about this subject as I do, for all of her encouragement, support and affection throughout, and Caitlin and Conor, who are an enormous source of joy and inspiration.

This book will consider the question of when is it fair to hold young people criminally responsible and to subject young people to the rigours of the criminal youth justice system. The book will examine whether young people should be treated as responsible moral and legal agents, and it will argue that the current English youth justice system has developed in a way that runs the risk of children and young people being prosecuted for crimes they are too immature to fully understand.

The law, as a system of rules that guides and governs human interaction, is premised on the view that humans can understand and follow rules. The laws concept of a person is a practical, reasoning, rule-following being who understands the difference between right and wrong. Therefore, when a criminal court convicts the defendant of an offence, it is because he is responsible for his conduct. Effective criminal law requires that citizens understand that certain conduct is prohibited, and that they understand the nature of their conduct and the consequences for doing what the law prohibits (Morse, 1997). Thus, criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and its consequences (Ashworth, 2003: 158). Hart (1968) similarly emphasises the principle that punishment should be restricted to those who have voluntarily broken the law and stresses that criminal liability is founded upon the simple idea that unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him. There is thus an expectation that for an individual to be convicted of a crime, he or she must be a moral agent, as conviction represents a moral criticism (Arenella, 1992; Kadish, 1987; Strawson, 1974). Judgements about whether particular conduct is blameworthy must operate within the framework of substantive moral values.

Adults are presumed to be mature and to have developed their decision-making capacities, and thus, they are held accountable for their behaviour. Under the normal rules of criminal law, an adults transgression is deemed less blameworthy than typical offenders if their decision-making capacities are impaired, for example, by mental illness, which is attributable to a condition falling within the MNagthen rules (Simester et al., 2010: 796). Currently, in England and Wales the defence of infancy excuses all children below ten years of age from criminal liability, as such children are considered morally irresponsible and lacking blameworthiness. The current law thus assumes all children are sufficiently mature at ten years of age to accept criminal responsibility for their behaviour. Although children between ten and eighteen years may understand the difference between right and wrong from a young age, they do not yet possess the emotional maturity to control their impulsivity and appreciate the consequences of their actions. Children and young people are less mature than adults in terms of the judgement factors of responsibility, perspective and sensation-seeking, and thus experience difficulties in weighing and comparing consequences when making decisions and contemplating the meaning of long-range consequences that will be realised five to ten years in the future (Modecki, 2008; Woolard, 2002). These cognitive difficulties also have implications for young peoples ability to be competent defendants in adversarial atmospheres (Woolard, 2002).