Unfitness to Plead Consultation Responses - Law Commission ...

Charity No 1137430 Company No 6006552
15. Under the above circumstances (but not limited to), children should be referred to
Community Justice Panels to establish measures which address the offending
behaviour and additional support measures to provide an exit route from the justice
system. A significant element of support would be requirement of the Local Authority
to undertake a statutory assessment of the child’s educational needs – without an
option of refusal to undertake assessment.
Question 12: How far if at all, does the age of criminal responsibility factor into the
issue of decision-making capacity in youth trials?
16. The thrust of government policy - to intervene as early and as positively as possible
with young offenders - has been retained. A 10-17 year old is therefore presumed
capable of instructing counsel in his/her own best interest; or the burden is imposed
upon the parent/guardian, who may be equally indisposed in terms of decisionmaking
capacity.
17. Recent history has shown that, irrespective of an individual’s decision-making
capacity, procedural decision rules applied arbitrarily and without reference to holistic
application of the early intervention principle, had the catastrophic result of
criminalising and incarceration of young people at unprecedented rates. xii These
procedures include:
the ‘two strikes and you’re in’ system, fast-tracking young people into courts and
custody
perverse performance targets incentivised police to focus on the ‘low hanging fruit’ of
young people
sanctions were established in a complex matrix of rules least likely to be understood
by poorly educated, disadvantaged young people.
sentencing discretion gave rise to an arbitrary ‘custody threshold’ over-riding the
holistic principle, delineated in the decision rule: Referral Order or Custody
18. Lord Corbett of Castle Vale suggested xiii that while fewer children enter the criminal
justice system under the age of 14 than over the age of 14, the younger the child is
the more likely that she or he will go on to become a prolific offender.
19. Recent legislative changes and the ‘Breaking the Cycle’ Green Paper seek to redress
immoderation, however as the Standing Committee on Youth Justice has noted
(unpublished report 2009):
‘An adult of 40 years with the emotional maturity of a 10 year old ... can claim diminished
responsibility if they are diagnosed as having a ‘recognised medical condition’, yet a 10 year
old without such a recognised condition cannot succeed with the plea as their development
has not been arrested, it is simply ongoing. The fact that children develop consequential
reasoning as they grow older is disregarded and, in this way, more is expected of children
than adults.’