Until legislation in the 1990s, in England and Wales, children and young people under 17 were the ‘juveniles’ who were processed in a juvenile justice system and prosecuted in the juvenile court set up by the Children Act 1908. Since the implementation of the Criminal Justice Act 1991, the criminal court for minors has been the youth court, with the upper age raised from 17 to 18 and, since implementation of the Crime and Disorder Act 1998, minors who have offended are now dealt with in a youth justice system. There are youth offending teams and youth offending panels providing youth justice services and operating with a published youth justice plan, within a system overseen by a national Youth Justice Board.
In England and Wales, the word ‘youth’ has also gradually emerged through successive versions of the Code for Crown Prosecutors to refer to the child or young person; before that, the reference was to the juvenile, or a young person, or, in its penultimate version, a youth offender. Similarly, in Northern Ireland, where different legislation and terminology apply to many aspects of the treatment of minors, the same trend is to be found. In 1999, Northern Ireland re-named its juvenile court as the youth court (Criminal Justice (Children) Order 1998, article 27) and s 63 of the Justice (Northern Ireland) Act 2002 raised the upper limit from 17 to 18 years.
‘Juveniles’ have not disappeared from policy and administration: the Juvenile Offenders Unit at the Home Office sponsors the Youth Justice Board and ‘is responsible for youth justice policy, law, processes and organisation covering 10 to 17 year olds in England and Wales’.29 There is also still a Juvenile Operations Management Group in the Prison Service and juvenile secure accommodation. Further, in Youth Justice – The Next Steps,30 the companion document to the Green Paper Every Child Matters,31 the juvenile reappears in references to juvenile sentences, juvenile court orders and juvenile custody.32
Neither juvenile nor youth are morally or culturally neutral terms. ‘Juvenile’ has pejorative connotations: it suggests, perhaps, the offender as ‘young and silly’. Arguably, however, ‘youth’ not only has more negative associations but is inherently gendered. If our associations with the word youth are pleasant ones of youth clubs, youth and community projects, or youth orchestras and choirs, where the two genders mixed on equal terms and the age range was not confined to older teenagers, there is no problem with the word ‘youth’. However, Burney suggests that ‘youths hanging about’ have become ‘the universal symbol of disorder and, increasingly, menace’,33 so that the meanings constructed around ‘youth’ are negative.
The significance of this change in terminology is increased by the abolition, in the Crime and Disorder Act 1988, of the presumption that children aged 10-13 years old are doli incapax: that is, incapable of being held criminally responsible.34 From the tenth birthday, a child can legally be prosecuted and punished, so that a ‘youth’ in the criminal justice system now refers in law and practice to a girl or boy aged 10-17 inclusive. This has been widely criticised, not least by those concerned with the rights of children.35 Children in Trouble, a report by the children’s charity Barnardo’s, criticised this ‘tendency to criminalise children unnecessarily and at younger ages, and a corresponding tendency to treat them as adults too soon’.36 Such a trend is encouraged by the use of the word ‘youth’, with its connotations of the older male person. Further, if policy and practice is – consciously or otherwise – geared to older male youths, then there is a risk that female youths – as well as younger youths of both sexes – will receive inappropriate responses to their offending.