Young Offenders: naming by the media (P.148/2009) – comments.

STATES OF JERSEY

YOUNG OFFENDERS: NAMING BY THE MEDIA (P.148/2009) – COMMENTS

Presented to the States on 17th November 2009 by the Minister for Health and Social Services

STATES GREFFE

2009   Price code: B  P.148 Com.(3)

COMMENTS

The  Minister  for  Health  and  Social  Services  noted  that  an  amendment  to  the proposition had been lodged au Greffe' by Senator B.E. Shenton in which he had proposed  16 years  as  an  appropriate  age  at  which  to  apply  amended  reporting restrictions.  Following  advice  from  the  independent  Chair  of  the  Jersey  Child Protection Committee, the Data Protection Commissioner, Law Officers and local experts in the field of child welfare, the Minister for Health and Social Services, on behalf of the Ministers for Home Affairs and Education, Sport and Culture, that together, make up the Corporate Parent, is unable to support the proposition by Deputy T. Pitman or amendment by Senator B.E. Shenton for 5 principle reasons set out below.

1. Compliance with the United Nations Convention on the Rights of the Child (UNCRC)

The Minister recalled that the Strategic Plan 2009 – 2014 included a commitment to seek extension of the U.K. ratification of the United Nations Convention on the Rights of the Child.

• The proposal to name children convicted of offences of violence in order to prevent re-offending and deter others is explicitly contrary to Article 40 of the U.N  Convention  on  the  Rights  of  the  Child  (UNCRC)  which  the  States Assembly agreed to ratify earlier this year.
• Article 40 (Juvenile Justice) states that children who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their rights. Governments are required to set a minimum age below which children cannot be held criminally responsible and to provide minimum guarantees  for  the  fairness  and  quick  resolution  of  judicial  or  alternative proceedings. Disclosure of a young person's personal details in the manner proposed would contravene this and could leave the young person open to abuse or retributive action.
• The proposal, as drafted, would lead to a greater degree of naming than is permitted in Courts in England and Wales. This is significant because England and Wales have been found to be failing to comply with the terms of the UNCRC in 2002 and 2008 for this, as well as other, matters. In its 2008 report, the U.N. Committee criticised England and Wales for failing to ensure full protection against discrimination against children. The report states that they (have not taken) sufficient measures to protect children, notably those subject to ASBOs, from negative media representation and public "naming and shaming".

The U.N. Committee report states that England and Wales should take urgent measures to address the intolerance and inappropriate characterization of children, especially adolescents, within the society, including in the media' and to:

Intensify its efforts, in cooperation with the media, to respect the privacy of children in the media, especially by avoiding messages publicly exposing them to shame, which is against the best interests of the child'.

• It would seem perverse to introduce such a measure when it has been found to be in direct conflict with the terms of the UNCRC, and would undoubtedly draw criticism from the supervising Committee of the UNCRC at the next review.

2. Evidence of effectiveness

• It  is  unclear  what  evidence  the   Deputy  has  to  support  his  assertion  that naming' has a deterrent effect, as it has not been possible to identify any academic reports or reviews which show that the naming of children convicted of criminal proceedings has any positive impact on their behaviour or the behaviour of others.
• There is ample evidence from research that being labelled' with a negative identity  can  have  an  adverse  effect  upon  the  wellbeing  of  the  individual involved,  can  thwart  the  achievement  of  their  full  potential  and  make  it difficult for them to gain an alternative, more positive, identity away from their marginalised group.
• If a child is labelled with an identity as a criminal, such a self-image can contribute to marginalisation, and would provide a further obstacle for the child, and those working with the child, to overcome. Important issues relating to re-integration and long-term impact are more significant in a small island community such as Jersey.
• Deputy Pitman argues in detail that the solution to successfully addressing youth offending is through a socially just society' which invests early in supportive services and in equitable distribution of resources. He states that if you  put  sufficient  monies  in  to  these  areas  earlier  enough  you  save  an absolute fortune over the following years. This is a fact and an inarguable one'. There is national and international research evidence to support this statement. Such an approach (i.e. substantial early investment into universal and targeted services for children and families) would no doubt find support from H&SS, Education, Probation, etc. However, the Deputy 's proposition is at the very least at odds with his support of the early investment' approach.

3. Restorative justice argument

• "Shaming" as Deputy Pitman states in his report, is a recognised tool in restorative justice, in which the perpetrator is made to see the damage that they have done to a victim'. However, in the context of restorative justice naming and shaming is used in a very specific and controlled way.
• The Parish Hall Enquiry System employs shaming' practices aimed at re- integrating youth offenders into their community and encouraging them back into  acceptable  behaviours.  However,  the  shaming'  in  this  and  other restorative justice work is a process which is supportive, not punitive, in nature.  It  usually  takes  place  in  settings  involving  the  victim/s  and  their family, the offender's family and other close associates who are significant in their lives. It does not involve publication of the name and offence of children as young as 12 years to the community as a whole as is intended by this proposition.

4. Impact on individual youth offenders

• Page 5 of the Proposition refers to the "shock of being held up for the entire world".  The  publication  of  personal  details  of  young  offenders  would necessarily become a permanent record, especially on the Internet. Individuals would be forced to live with a detailed record beginning with childhood that would stay with them for life, wherever that individual goes – searchable and accessible from anywhere in the world, as the Proposition rightly states.
• Public  naming  and  shaming'  risks  losing  sight  of  the  importance  of proportionality.  Unfortunately  there  is  no  clarity  of  objective  in  the Proposition. Unless the objectives are clear, it is impossible to discuss the proportionality of the measures proposed.
• The position of children in the care of the Minister for Health and Social Services is of particular concern. Looked-after children are vulnerable, having by definition already experienced disruption and difficulty in their family lives.  Such  difficulties,  rarely  of  their  own  making,  might  well  have contributed to their anti-social and offending behaviour. These children are often already characterised in a negative way in the media and in the minds of a  significant  proportion  of  the  public.  This  is  an  inaccurate  reflection  of children in care, the great majority of whom are not involved in offending behaviour. This proposition could well contribute further to the degree of prejudice and ostracism that these vulnerable children already experience.

5. Impact upon others

• The Proposition fails to take account of risk to third parties, referring only to the requirement placed upon the Court to assess the potential for serious risk of  physical  or  mental  harm  to  the  individual.  The  naming  and  shaming approach would certainly result in potential adverse impact upon the wider family, and most particularly and significantly any siblings within the family, who will have had no part in the criminal activity but would be rendered vulnerable to bullying and possibly worse, simply because of their brother or sister's actions. Again, this factor is of greater significance when applied to looked-after children and their family as a whole.

Recommendation:

The Minister believes that the proposition and its amendments raise crucial issues in relation to Youth Justice which have impacts that are wider than the specific matter of whether juvenile offenders should be publicly named.

The Minister considers that a comprehensive review of Youth Justice arrangements across  the  board  is  essential  to  understanding  and  implementing  the  many  and substantial  changes  to  current  legislation,  administrative  processes  and  service provision which are required in order to successfully resolve political and public disquiet. The Corporate Parent can confirm that the groundwork for such a review has already been completed and this should allow issues to progress in a timely manner.

The  Minister  believes  that  it  is  appropriate  to  ensure  that  all  legislative  changes relevant  to  the  Children  (Jersey)  Law  2002  and  the  Criminal  Justice  (Young Offenders) (Jersey) Law 1994 – including the pressing need to consider custodial sentencing to Greenfields – should be made at the same time.

Therefore,  the  Minister  would  recommend  that  any  debate  on  this  proposition  is deferred until the outcome of the Youth Justice Review is known, and any proposals can be considered on their respective merits.

The Minister for Health and Social Services, on behalf of the Ministers for Home Affairs and Education, Sport and Culture that together, make up the Corporate Parent, having considered the legal advice received, resolved to oppose both P.148/2009 and the related amendment lodged by Senator Shenton, as both would be contrary to Article 40 of the U.N. Convention on the Rights of the Child (UNCRC) which the States Assembly agreed to ratify earlier this year. The Minister recommends that members reject this proposition.