Human Rights and Criminal Justice

In considering the extent to which the police have complied with the Police and Criminal Evidence Act (PACE) 1984 and the PACE Codes of Practice regarding the arrest, detention and interrogation of Graham and Nisha it is to be appreciated that a police officer (Ministry of Housing & Local Government v. Sharp, at p.266, per Lord Denning MR) who commits a breach of their common law or statutory duty by making an unlawful/wrongful arrest be liable for damages (M v. Home Office). This is because exemplary damages may be awarded in cases of oppressive, arbitrary or unconstitutional action by the police who may be described as exercising governmental functions (Cassell & Co Ltd v. Broome, at pp.1076-1078, per Lord Hailsham of St Marylebone LC). Moreover, whilst the mere fact a police officer or authority makes an ultra vires order or invalidly exercises statutory powers under PACE 1984 will not of itself found an action (Holgate-Mohammed v. Duke, at p.443, per Lord Diplock), ‘bad faith’ on the part of a police officer, like PC Kyle, will result in civil liability, but for the presence of statutory authorisation (Calveley v. Chief Constable of the Merseyside Police, at p.1030, per Lord Bridge of Harwich). Graham and Nisha would, however, still need to be advised proof of improper motive is necessary (Gregory v. Portsmouth City Council). Furthermore, they must be advised there also may be a cause of action for an independent tort of misfeasance in public office that consists of public officers like PC Burns and PC Donaldson causing loss to the claimant where the officer either intends to injure the claimant or knows they have no power to do the act complained of and will probably injure the claimant (Three Rivers District Council v. Governor and Company of the Bank of England (No 3), at p.8, per Lord Steyn). However, the exercise of power may include an act, or an omission in the sense of an actual decision not to act and there may be vicarious liability of the relevant governmental authority for the acts of the police officer (Racz v. Home Office). Nevertheless, whilst Graham and Nisha need to be advised someone may be lawfully arrested by warrant, or without one if certain conditions are satisfied (see PACE 1984 at sections 24-33 and Schedule 2 (as amended)), they may also be able to lay a charge against PC Burns and PC Donaldson for unlawful arrest. The reason for this is arrests would be unlawful if the police officers knew there was no possibility of bringing charges (Plange v. Chief Constable of South Humberside Police). Such a view is based on the fact that, for example, if an arrest does not conform with the conditions set down by law, then actions for false imprisonment and battery will lie, and no proof of special damage is required (Murray v. Ministry of Defence, at p.528, per Lord Griffiths). However, a police officer need only reasonably believe an arrestable offence has been committed because the test is whether the police officer had reasonable suspicion of any of the offences (i.e. the robbery) and this would have to be accounted for in any investiagtion. Although the arrested person must be told of the reason for their arrest even if it is obvious (sections 28(3)-(4) of the PACE 1984), however, if the reason given renders the arrest unlawful it is irrelevant there was a valid reason for the arrest if it was not communicated to the arrested person at the time of the arrest (Abbassy v. Metropolitan Police Comr). Graham and Nisha could effect a charge for false imprisonment (R v. Deputy Governor of Parkhurst Prison, ex p Hague) because their right to liberty (Bugdaycay v. Secretary of State for the Home Department) is protected against state interference by two principles.

This is because – (a) an individual may do anything not prohibited by law; and (by) the state may not interfere with the individual except where the law permits it (IRC v. Rossminster Ltd). Therefore, Mr Cartman needs to be advised he could only be lawfully detained for a period of time set out in statute (R v. Brown) and is afforded certain protections whilst in detention (PACE 1984 at sections 34-45) (as amended)). This is because false imprisonment not only affects someone’s liberty, under Article 5 of the European Convention on Human Rights (ECHR) 1950, but also their reputation and the damage continues until it is stopped by remedy of an ‘avowal’ the imprisonment was false (Hook v. Cunard Steamship Co Ltd). As for Graham and Nisha’s interrogation, police interviews are specifically covered by the PACE Codes of Practice (C11.1A-12.14) with the overriding principle being all those in custody must be dealt with expeditiously and released as soon as the need for detention has ceased to apply to avoid problems under Article 5 of the ECHR 1950 regarding the right to liberty. Additionally, interviews should only take place in a police station with the exception of few limited circumstances and a suspect should be told why they are being interviewed and the level of offence they may be charged with. After cautioning the suspect at the beginning of an interview (Code C10.1-10.9) at a police station, the interviewing officer should put to the suspect any significant statement or silence which occurred before the suspect’s arrival at the police station. At the police station they should then be asked to confirm, deny or add to their statement, since a significant statement or silence is one capable of being used in evidence against the suspect under the Criminal Justice & Public Order Act 1994. An accurate written record should be made of each interview unless it is recorded and the suspect has the right to see the record and sign it only if it is exactly what they said (Code E2.1-E4.19). However, less formal interviews subsequently written up by police officers in their notebooks are still common and a suspect usually has no chance to check the accuracy of their notes so as to potentially render confessions inadmissible in court (Kuruma v. R, at p.203, per Lord Chief Justice Goddard). The questioning and treatment by the police that a suspect receives in custody is also affected by the ECHR 1950 since Article 3 covers the prohibition of torture and degrading treatment, Article 6 covers the right to a fair trial and Article 8 the right to privacy. (b) As for the matter of the admissibility of Nisha’s confession at trial the admissibility of any implied statements of guilt need to be read under Article 6 of the ECHR 1950 (enacted domestically by the Human Rights Act 1998) regarding the right to a fair trial. But regardless of the need to recognise basic human rights and freedoms, under English law suspects are supposed to be protected regarding confessions – although evidence will not be excluded just because it was improperly obtained due to confessions probative value (Kuruma v. R, at p.203, per Lord Chief Justice Goddard). This is important because when she was taken to an interview room by DC Cole and DC Newby Nisha asks “Can we get this over as soon as possible please? I’m guilty, we went and did over a building society, and the loot is in Graham’s filing cabinet in his Dad’s office. Can I go now?” before the tapes were switched on. However, this is problematic because although DC Cole took a note of what she had said, Nisha refused to sign it and, when the tapes are finally switched on, Nisha informs them she will not answer any questions until she can speak to a solicitor (Tinney) who later urges Nisha not to answer any further questions.

Matters have then only been further exacerbated by the fact when Nisha was actually first checked in to the police station by the Custody Sergeant (DS Lowry) he gave her a copy of the PACE Codes of Practice to consult and also offered Nisha the opportunity to contact a friend or relative. However, Nisha informed him she only wanted to speak to her solicitor whereupon DS Lowry saide “Well, you could speak to one if you had to, but it might take a while to organise now that it’s after 5pm. Solicitors aren’t always necessary, and it’ll just mean that it’ll take a lot longer for us to sort this out”. This is important because it has been found courts can exclude a confession if it is obtained as a result of some form of oppression (PACE 1984 at section 76(8)) or in circumstance that serve to render it unreliable (PACE 1984 at section 76(2)(b)) unless the prosecution prove beyond reasonable doubt it was not obtained in this way (R v. Hughes). In addition, the courts may look to exclude a confession if its admissibility would serve to effect the fairness of proceedings (PACE 1984 at section 78), but only where a breach of the law arisen occurred (R v. Mason) whilst improper inducements may render a confession unreliable (Jemmott v. Commissioner of Police). Moreover, as in this case, it is commonly understood a deliberate breach in bad faith of the right to legal advice as was perpetrated by DS Lowry against Nisha (PACE 1984 at section 58) will almost certainly result in the exclusion of a confession and even such a breach without their being any act of bad faith may also do pretty much the same thing in such a case (R v. Alladice). However, on questions of admissibility of confessions, it is still for the judge to determine the issue after hearing evidence relating to any contested question of fact (R v. Burgess). On this basis, the test for admissibility of a confession was simply whether it was voluntary and as a matter of fact and causation until the policy was changed due to a lack of faith in the system and fears of police corruption because the trial judge’s findings could not be disturbed due to the difficulties involved with reconciling them with any findings of fact (R v. Rennie). Only now, underlying the basic rules concerning the admissibility of confessions, there is a need to be fair to the accused rather than merely looking to fulfil government targets (R v. Middleton). Furthermore, significant and substantial breaches of the law relating to the protection of suspects, whether in bad faith or not, may lead to what has been recognised as the exclusion of evidence (R v. Absolam). Therefore, significant and substantial breaches of the interviewing rules under PACE 1984 may result in the exclusion of evidence obtained consequently (R v. Keenan) and it may be deemed unfair to admit in evidence any confession made after a promise of immunity by the police (R v. Mathias). (c) With a view to considering the significance of Nisha’s decision to remain silent under questioning and the failure of both defendants to testify at court such a right was arguably most effectively espoused by Lord Mustill in R v. Director of Serious Fraud Office, ex parte Smith where the ‘right to silence’ was found to consist of six rights – (i) a general immunity from having to answer questions posed by persons or bodies in authority; (ii) a general immunity from having to answer incriminating questions on pain of punishment; (iii) a specific immunity for all people suspected of criminal responsibility whilst being interviewed by the authorities to not have to answer questions; (iv) a specific immunity for people subject to criminal proceedings from being compelled to give evidence or answer questions; (v) a specific immunity, possessed by people charged with criminal offences, to not have questions material to such offences addressed by the authorities; and (vi) a specific immunity for accused people undergoing criminal trial proceedings to not have adverse comments made about any failure to answer questions before or at the trial.

Therefore, adverse inferences from someone utilising this right could only be drawn in very limited circumstances since the European Court of Human Rights (ECtHR) recognised in Murray v. UK (at paragraph 45) the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards under Article 6 of the ECHR 1950 regarding recognition of the right to a fair trial. This right was then, however, somewhat limited by the Criminal Justice & Public Order Act 1994 that recognised adverse inferences should be drawn from someone like Bill (or Alf if he had chosen to) exercising their right to silence. This is because it was recognised under the Act that where before or on being charged an accused in a criminal matter – (i) fails to mention any fact which they later rely upon (R v. Webber, at paragraph 15) and which the accused could reasonably be expected to mention (R v. Argent); (ii) fails to give evidence at trial or answer any questions; (iii) fails to account upon their arrest for objects, substances or marks on their body, clothing or footwear or where they are arrested; or (iv) fails to account on arrest for their for their presence somewhere they will be subject to possible adverse inferences being drawn as a result. Such inferences have since been set out by the Judicial Studies Board that has provided a specimen direction (Crown Court Bench Book – Specimen Directions (as updated) (October 2008)) that the ECtHR now considers to be acceptable (Beckles v. UK) – particularly due to the UK’s implementation of the ECHR 1950 domestically through the HRA 1998. However, the prosecution and defence also need to be made aware that, whilst no conviction can be solely founded upon silence, evidence may be excluded where, for example, the police fail to follow the terms of PACE 1984 and do not make those suspected of the crime in this case (i.e. Alf and Bill) aware of the possible implications of their silence for the criminal proceedings to then be pursued against them negating the fairness of the proceedings (PACE 1984 at section 78(1) – see also Criminal Justice Act 2003 at section 126(2)(a)) to the detriment of the parties involved contrary to Article 6 of the ECHR 1950. (d) In determining as to whether it is permissible for the prosecution to rely on the fact the stolen money was recovered from Graham’s father’s filing cabinet there is a need to recognise any case is generally considered proven through the adducing of original evidence when it is proved by oral testimony in specific proceedings from witnesses who have first-hand knowledge of the facts and issues.

For example, in a statement made by a witness in criminal proceedings which – in accordance with a special measures direction such as sections 31(1) and (2) of the YJCEA 1999 – is not made by the witness in direct oral testimony in court but forms part of the witness’s evidence in those proceedings that is treated as if it has been made by the witness as such. Therefore, it is commonly understood if a witness is found to lack first hand knowledge because they did not personally perceive or experience the fact or event under scrutiny, but merely heard or read about it, any evidence they give will be second-hand and recognised as hearsay accordingly (R v. Sharp, at p.68, per Lord Havers). This is because a previously written or recorded statement like that of DC Coles’ notes of what Nisha said prior to the taped interview about where the stolen case was can also be considered to be hearsay in the circumstances if it is then given as evidence in the criminal proceedings against Graham and Nisha (CJA 2003 at sections 119-120). Hearsay evidence can, however, be given in court proceedings in the interests of justice if – (i) any statutory provision serves to make it admissible (section 114(1)(a) at CJA 2003); (ii) it is admissible under a common law rule preserved under the CJA 2003 (section 114(1)(b)); (ii) all parties agree it is admissible (section 114(1)(c) at CJA 2003); or (iv) the courts are satisfied it serves the interests of justice (section 114(1)(d) ay CJA 2003). This is particularly important because the judiciary now have a statutory discretion in court proceedings to admit hearsay evidence that could otherwise be considered to be inadmissible where it is found to be in the interests of justice (R v. Taylor). This area of the law of evidence is, however, complicated by the fact that although a witness can testify regarding what they have heard or been told in a statement by someone else, this is not necessarily hearsay unless the court or jury is invited to believe or rely upon it. Such a view is founded on the decision in Ratten v. R (at p.387) where it was recognised just because the evidence of a witness includes evidence as to something that was said by another person is no objection to its admissibility, but if the speaking of words is a relevant fact, a witness may give evidence that they were spoken (Teper v. R, at p.486). Nevertheless, it is not hearsay where it is proposed the evidence will be used to establish the statement relating to the stolen cash was made by Nisha (Subramaniam v. Public Prosecutor, at p.970) because evidence one or more people could demonstrate their knowledge of (or belief in) certain facts (R v. Kearley) could be considered equivalent to an ‘implied assertion’ of those facts by the people concerned. Therefore, such evidence could be considered inadmissible as hearsay if it was tendered to prove the existence of particular facts – even if the conduct was not intended to assert those facts. However, in contrast, conduct intended to convey information amounts to a statement and evidence given by someone who witnessed conduct could be hearsay (Chandrasekera (alias Alisandiri) v. R). This means interpretation of the ‘hearsay rule’ in the law of evidence has now been somewhat abrogated so the rules governing its admissibility (contained in the CJA 2003, Part 11, Chapter 2 (at sections 114-141) (as amended) & the common law rules preserved by section 118(1)) now applies only if the purpose of who is making the statement seems to have been to cause someone else to believe the matter (CJA 2003 at section 115(3)(a)) or cause someone else to act because the matter is simply as it was stated (CJA 2003 at section 115(3)(b)).

Section B

1. In seeking to discuss the idea “The United Kingdom has a woeful track record in safeguarding the human rights of children and young people in the criminal justice system”, this essay will first look to recognise why children and young people are considered to be so important in relation to the development of an effective criminal justice system. This essay will then consider as to where problems with the recognition of human rights for children and young people have been recognised in relation to the criminal process, before seeking to evaluate the way in which policy makers have looked to circumvent such problems through the development of further measures outside of the court process. At the same time, however, this essay will also consider the problems that have arisen with such developments in terms of the recognition of children and young people’s human rights despite the fact they were in fact meant to bring about a greater appreciation of their rights against abuse. Finally, this essay will seek to conclude with a summary of the key points derived from this discussion in relation to how successful or not the UK has been at safeguarding the human rights of children and young people in the criminal justice system.

Considerable importance is linked to a child’s welfare whenever they have dealings with the youth justice system because ‘labelling’ a child as criminal may have great repercussions for their ongoing development (Henslin, 1999). Difficulties in this area have very often only been exacerbated because this kind of ‘labelling’ commonly ignores the fact children will have often learnt their ‘bad’ behaviour because an unstable family life can have such an impact upon a child’s development (Arthur, 2007, pp.47-51 and 53-57). Therefore, it has been recognised that it is arguably society could actually be considered as responsible for increasing criminality amongst the young that may then impact upon their adulthood (Carlton, 2008, p.29). This is because, for example, during the past decade in particular it has been found that a series of unrelated disturbances in areas throughout these shores raised the profile of youth offending within the media to give the impression of a country overrun by delinquents (Goldson, 1997, pp.129-130). Such developments can have far-reaching consequences because it is arguable the problems started with society making rules and then selectively applying them to make ‘deviants’ of those with the misfortune of being ‘labelled’ for breaking these rules by ostracising them from society (Downes & Rock, 2003, pp.177-201). Not everyone who is recognised as criminal falls into a life of crime. Only a small percentage of antisocial children actually become antisocial adults since many get help to distance themselves from the path they may otherwise have gone down through successful reintegration (Kazdin, 1993, pp.277-310). Some studies even go so far as to suggest ‘labelling’ of young people as criminals does not necessarily compel them to embark on a criminal career (Robins, 1980, p.313). But many academics have argued that once young people have been ‘labelled’ as criminal it is then that much more likely that they will accept the role they have been assigned (Eadie & Morley, 2003, p.552). Such an understanding is then only exacerbated by the fact that, to identify patterns of criminality amongst the young, it has been found male children from both poor and rich families and recognised male children from poor families are more likely to be ‘labelled’ deviant and also explains why there are many more lower-class young male offenders (Walklate, 2007, pp.17-36). In addition, other academics argued children that live in poor communities very often become “inordinately physical and aggressive in their relationship with other children” because of a lack of education and discipline (Murray, 1990, p.12). It is a mark of the level of criminal behaviour amongst the young it costs taxpayers around £3.5 billion annually to put right (Respect, 2009) and children with persistent antisocial behaviour at the age of 10 cost society ten times as much in controls by the time they reach 28 (Kyle, 2006). Therefore, where the causes of young offenders behaviour are effectively recognised, it is arguable the Rehabilitation of Offenders Act 1974 was a step in the right direction for giving offenders at all levels another chance. At the same time, however, anyone “convicted of house-breaking … is presumed to be a person likely to break into other houses” (Becker, 1963). Such a view has since been developed so if someone has the misfortune of confronting a jury regarding the allegation of an offence against them, then their previous ‘bad character’ could influence the jury regarding the likelihood of them committing the offence they are charged with under the Criminal Justice Act 2003 (Roberts, 2006, pp.1064-1065). This point is particularly important for children in view of the fact that they do not commonly have the emotional awareness or experience to cope with the process of law. For example, it was recognised in the case of SC v. United Kingdom Article 6(1) of the European Convention on Human Rights (ECHR) 1950 (implemented into the UK under the Human Rights Act 1998) had been violated when an 11-year-old boy was tried in an adult court for attempted robbery and sentenced to two and a half year’s imprisonment. However, when the case was appealed to the European Court of Human Rights (ECtHR) the court found that, in view of the boy’s low intellect, he was incapable of fully understanding the proceedings and their consequences so as to contravene the remit of Article 6 of the ECHR 1950. This is because the court found that what should have happened is that such a young person should actually have been tried for their crimes in a specialist tribunal adapted to meet their specific requirements (Hollingsworth, 2007). This is not the first time that problems have arisen with regards to a child’s right to a fair trial. The reality is that Article 6 of the ECHR 1950 has generated more case law before the ECtHR than any other Article because this right is so fundamental (Thompson v. United Kingdom). However, although it is to be appreciated that the ECtHR has opted to consider proceedings before the courts as a whole, there is still a need to understand that specific incidents may have a significant impact because it is not for the ECtHR to pass on whether a previous court made errors in the consideration of either fact or law (Grotian, 1994, p.41). Nevertheless, there has still been some significant debate in the UK about the extent that a young person’s right to a fair trial is recognised domestically.

For example, it was recognised in the case of R (on the application of R) v. Durham Constabulary before the House of Lords that the giving of a warning to a 15-year-old boy about his admittance of indecent assaults was not a criminal charge under Article 6 of the ECHR 1950 so that the protection of such a right did not apply in such circumstances. In addition, in the case of R (S) v. Waltham Forest Youth Court it was held that it was impossible to look to include words in section 16 of the Youth Justice & Criminal Evidence Act (YJCEA) 1999 so as to then permit the particular young defendant to be able to give evidence via a television link where he was found to be afraid of repercussions. The reason for this that section 16 of the YJCEA 1999 specifically established when a court would be able to give protection to those that are giving evidence by reading in an extra facet into section 16 of the YJCEA 1999 so that this would then mean the courts in this country would be effectively legislating and not interpreting the law as it stands so that the specific principle relating to the presumption of innocence would then be able to be maintained and enhanced (Woolmington v. Director of Public Prosecutions). As a result, policy makers within government have sought to develop alternatives to redress criminal behaviour.

Principally, Anti-Social Behaviour Orders (ASBOs) as civil injunctions have been encouraged to apply for against those over 10 years of age for causing harassment, alarm or distress under the Crime & Disorder Act (CDA) 1998 (Home Office White Paper, 2003). Then, under section 1C of the CDA 1998 (amended under the Serious Organised Crime & Police Act 2005), if a defendant is convicted of an offence an ASBO may be implemented by a court if an offender has acted in an anti-social manner effecting people not of the same household. However, the CDA 1998 has not solely been about ASBOs to control criminal behaviour amongst the young through rehabilitative schemes. This is because it is to be appreciated the CDA 1998 is focussed upon children and young people under 18’s criminal behaviour since there is a duty upon local authorities to ensure youth justice services are available in terms of assessment and rehabilitation, bail support, demand placements, reports, and community sentence and post-custody supervisions (Scraton, 2004). In addition, the CDA 1998 also served to establish a national Youth Justice Board to establish multi-agency Youth Offending Teams (YOTs) to review Youth Justice Plans, along with Reparations, Action Plans, improved Supervision, Detention and Training Orders (Scraton, 2004). The CDA 1998 also looked to show an appreciation of young offenders’ welfare by abolishing the previously recognised presumption of doli incapax to permit courts to draw inferences from an accused child or young person’s failure to give evidence at trial. In addition, a series of Orders have been introduced including Parenting Orders to offer help and support for addressing a given child’s behaviour, whilst Child Safety Orders were directed at children under 10 as early intervention measures in an effort to stop children embroiling themselves in lives of crime by offering the authorities the chance to protect a given child (UK Government, 1999, p.181). Such an understanding of the approach to children and young people within the criminal justice system is reflective of the government’s submission to the United Nations (UN) Committee that it is not unjust or unreasonable to presume most children 10 years of age or older can understand the difference between what is right and wrong (UK Government, 1999, p.180). Therefore, ASBOs have been developed so as to emphasise a child’s welfare’s importance even in relation to dealing with them under the criminal justice system without ostracising them (Downes, 2001, pp.8-9). It is still to be appreciated, however, although ASBOs do not carry the same stigma as a period of imprisonment the ‘responsible community’ is still arguably being utilised as a blunt instrument for dealing with young people’s criminal behaviour (Scraton, 2004, pp.1-27). In addition, the potential for applying ASBOs with ‘real energy’ has not been lost on the judiciary. For example, in 2003, a Manchester district judge lifted reporting restrictions on a teenager served with a 10-year ASBO throughout the UK so, despite the disproportionate nature of the penalty, a Manchester council representative remained unequivocal in recognising “It stands as a stark warning – behave or risk a long ban” (Press Release, 2003). Therefore, despite ASBOs civil element they could still oppose the presumption of innocence (Woolmington v. Director of Public Prosecutions) leading to further concerns regarding the right to a fair trial under Article 6 of the ECHR 1950. However, that is not to say government policy makers are solely to blame for this because matters are not helped by the ambiguous nature of Article 6 itself because Article 6(2) has implied the right to a fair trial only arises in criminal proceedings whilst ASBOs are based in civil law.

For example, it was recognised in R (on the application of R) v. Durham Constabulary that Article 6 of the ECHR 1950 is not engaged by the procedure for reprimands and warnings (Ashworth, 2006a, pp.87-89). To deal with young offenders in the interests of society it was arguably too easy for government policy makers to circumvent innocence’s presumption (Woolmington v. Director of Public Prosecutions) by promoting legislation to provide for civil orders imposition. That such a development has arisen is firmly rooted in the government’s desire to protect its citizens from risk and prevent a criminal element forming in the young (Ashworth, 2006b). This is because ASBOs were implemented by government policy makers to bypass the standard criminal process and evade the aforementioned presumption of innocence along with the need for witnesses to attend and give evidence as they would in criminal proceedings – although such a gambit may still be ‘attacked’. The reason for this is that, although proceedings regarding young offenders may be civil under the CDA 1998, the standard of proof should still be as high as the criminal standard of ‘beyond reasonable doubt’ because ASBOs still often affect an individual’s right to liberty under Article 5 of the ECHR 1950 when they are restricted from going into certain areas at certain times (Birmingham City Council v. Shafi & Ellis). Nevertheless, the ‘autonomous meaning’ of “charged with a criminal offence” under Article 6(2) of the ECHR 1950 means the ECtHR could develop an ‘anti-subversion device’ to stop legislatures from evading the extra safeguards for criminal proceedings simply by considering them as civil (Engel v. Netherlands). Both of these lines were attempted by the appellants in Clingham v. Royal Borough of Kensington & Chelsea; R (on behalf of McCann) v. Crown Court of Manchester (at paragraph 83, per Lord Hope of Craighead) when the House of Lords had to determine whether the process of making an ASBO were to be considered civil or criminal and the unanimous decision was that the proceedings were civil – although the standard of proof should be applied sensitively. In conclusion, it is clear there is an appreciation of the need to safeguard the human rights of children and young people within UK society as part of the criminal justice system. This is because, as has been reflected upon at the start of this essay, the ‘labelling’ of children or young people as criminal can prove extremely detrimental to their future development in view of the way in which children and young people within the UK are perceived of in society as a whole. Therefore, there is a clear need to show an appreciation of children and young people’s human rights within the criminal justice system since where their are rights are not effectively recognised they may be subjected to unneccessary punishment. However, as has already been stated as part of this discussion, it is not only criminal proceedings through the courts that have posed a problem to the recognition of children and young people’s human rights.

This is because, although government policy makers have looked to endorse the use of alternative civil procedures to court proceedings such as ASBOs, civil procedures value have still been called into question for contravening human rights in relation to the rights to liberty and to a fair trial under the ECHR 1950.

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