Life in crime | Former young offenders have been given a second chance by the court

In November’s Life In Crime ?(Solicitors Journal, Volume 156 Issue 44) ?I commented on the resurgence of article 8 throughout 2012 in support of the children of persons facing deportation, extradition, or sentence. The Court of Appeal’s decision on 29 January in R (T) v Chief Constable of Greater Manchester [2013] EWCA Civ 25 has bravely carried that theme forward ?into 2013, much to the chagrin of the ?Home Secretary.

Until the Criminal Justice and Immigration Act 2008, a child attending ?a police station could be reassured that if they accepted a warning or reprimand the ‘step down’ procedure would mean that it would not come back to haunt them in later life when they applied for jobs or higher education. Section 113A Police Act 1997 was then amended to include spent cautions within ‘relevant matters’ that ?must be disclosed in a Criminal ?Record Certificate.

This had the consequence that children who had previously accepted warnings or reprimands in the expectation that they would suffer no detriment when they grew up, were instead faced with a lifetime of having to explain – and potentially suffer the prejudicial consequences of – actions they had admitted to as children. Within this large cohort were inevitably some who had taken a pragmatic view of their options rather than made a genuine confession of committing a crime. It is hardly less unfair to brand children as young as ten for life even once the consequences of the admission are clear at the time.

T received two warnings in connection with stolen bicycles when he was 11 years old, but seemingly never looked back. As an adult, however, he became painfully aware of the effect of section 113A. In allowing the appeal in the case of T (and also of JB, who accepted a caution for stealing a packet of false nails at the age of 41), Lord Dyson stated “we are of the opinion that the 1997 Act is incompatible with article 8. The position is even stronger in relation to offenders who were children at the time of their offending. The courts have repeatedly stated that different principles apply to young offenders from those applicable to adult offenders.”

Theresa May wasted no time in issuing a statement from her department expressing disappointment, and an intention to avail of the 28 days in which the ruling would not take effect to allow for an appeal to the Supreme Court. The statement included the contention that “the protection of children and vulnerable groups must not be compromised”. Only a fortnight later she was heavily critical of immigration judges for continuing to halt deportations of criminals on article 8 grounds, here citing a need to protect the law abiding majority.

Both positions illustrate the Home Secretary’s failure to grasp (or perhaps to publicly acknowledge) that children, and the law abiding adults they usually go on to become, are at the heart of all these decisions. Also, as Vince Cable later reminded Sky News, “we can’t be in the business of second-guessing individual judges’ decisions. We have an independent judiciary and we have got to respect that.”