Publication - Independent report

The KILBRANDON Report

Published: 1 Oct 2003

Report of the expert committee on how to deal with children in trouble which influenced the establishment of the Children's Hearings system

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111 page PDF

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Contents
The KILBRANDON Report
Page 8

111 page PDF

351.7 kB

THE KILBRANDON REPORT

CHAPTER III
The Underlying Principles

CONCEPTS UNDERLYING THE JUVENILE COURT

50. The existing juvenile courts, despite their differences of personnel and organisation, form part of the system of courts of summary jurisdiction, i.e., all are courts of criminal law. The essence of this system lies in the following sequence of events. A criminal prosecution is instituted: either there is an admission of guilt by the accused or a finding of guilt or innocence after trial, and where guilt is established the court passes sentence. It is true that, under the Juvenile Court Rules, the juvenile court procedure is modified in certain respects in the interests of simplicity and intelligibility for the juvenile, but this does not represent any fundamental alteration in the principles of criminal procedure. It is true that once guilt is established, the juvenile court does not proceed to a conviction, but records a "finding of guilt", except where a probation order or order of absolute discharge is made-in which case no finding of guilt is recorded. These are, however, differences of nomenclature rather than of fact. Moreover, most of the court's orders apply, with modifications on account of age, the forms of sentence which may be passed by a criminal court on an adult. Criminal procedure in the sense described is clearly well-adapted to determination of questions of fact, from which the accused's innocence or guilt may be inferred. By its nature it focuses attention on the specific act alleged, which, if proved, constitutes a crime or offence. In relation to juvenile offenders, however, statute law introduces a further set of considerations. A court in dealing with a juvenile is required to have regard to the welfare of the person before it. "Welfare" is, of course, irrelevant to the question of determination of innocence or guilt, and relates to the second stage of the proceedings, namely, the form of treatment appropriate to the case once the facts alleged have been proved.

51. It is evident that the system of criminal prosecution assumes a high degree of personal responsibility-of choice in doing right or wrong, and that doing wrong-where this involves the commission of an act recognised by law as a criminal offence-merits punishment. In the ultimate, this might seem to imply that every crime detected ought to be followed by criminal proceedings so that the offender can receive the punishment he deserves. Although in practice this consequence does not invariably follow, it is the case that, where prosecution does follow, the possible legal consequences demand the most stringent safeguards to ensure that the innocent are not punished. The law provides these safeguards for the protection of the accused, and the prosecutor must undertake the whole burden of proving the guilt of the accused beyond reasonable doubt by competent evidence.

52. The court's first function is thus the determination of guilt or innocence, and where it convicts, its further function is then to determine, after taking account of any mitigating circumstances, the appropriate punishment. The first determination depends on evidence of facts (i.e. past events) which are sufficient to support a judicial finding of guilt, and the acquittal of the accused if that evidence is deficient. The second of the court's functions-that of sentencing has, certainly in more recent times, increasingly had regard not simply to fitting the punishment to the crime, but to the future. Sentencing looks to the future in that considerations of deterrence are or may be present, both in relation to the offender and to others, and in that the principle of educating and reforming the criminal has in more modern times received increasing attention.

53. If the underlying principle were simply the prevention of crime at all costs, and this were to accepted in pure form, a very different scheme would be necessary. Since the criterion would be simply the protection of society, primary concern would then rest in the prevention of future criminal actions by the treatment of all the factors, whether personal or environmental, likely to conduce to such actions by a person who, either because he has already offended or on some other evidence, has shown himself prone to delinquency. Punishment need not be alien to such a concept, since punishment might be good treatment for the particular person concerned in his particular circumstances: but punishment would be imposed for its value to the purpose of treatment, not for its own sake as some sort of reward for ill-doing.

54. In drawing a contrast between a system resting primarily on ideas of crime, responsibility and punishment and one proceeding primarily on the principle of prevention, we are not, of course, suggesting that the methods of dealing with adult crime are entirely governed by the first concept or that a working compromise between them is not possible. In practice the present arrangements represent such a compromise, and, at any given time and certainly in relation to any individual offender, a balance has to be sought on an empirical basis between the conflicting claims of the two principles. While, however, compromise on such a basis is possible, it seems to us important to indicate points at which the two concepts are incompatible or militate against each other

(1) Early preventive measures: the "crime-responsibility-punishment" concept militates against preventive action against potential delinquents. Because of the high degree of personal responsibility which it attaches to the criminal, a stigma is attached in the public eye to conviction of a crime, which bears no necessary relationship to the harm done by the action itself or the actual responsibility of the person who did it. Because it is concerned with the deserts of a criminal, the standard of proof is high. In the absence of such proof-even though it is clear that the surrounding circumstances are such as to call urgently for preventive action-no such action can be taken since it would involve treating as criminals persons who have not been convicted by a criminal court.

(2) Environmental factors: punishment cannot be extended to any substantial degree beyond the individual offender, since no other person has the degree of guilt for the offence which would be acceptable as a prerequisite for punishment. But treatment can be applied beyond the individual who committed the act, to others, an alteration in whose behaviour might result in a substantial improvement in that individual.

(3) The needs of the individual: the "crime-responsibility-punishment" concept, because the punishment must fit the crime, may inhibit the court in ordering the treatment the offender needs. Indeed, it may work in the other direction, for example, in the case of the offender before the court for an offence which, in the eyes of the law, is comparatively minor, but which has causes which require long-term treatment. The court cannot, in such circumstances, impose what would be considered a heavy punishment; indeed, the causes of the crime might well be regarded as mitigating circumstances which would make a lighter than normal punishment appropriate. No such difficulties would arise on the "preventive" principle since there the prime consideration would be the need for treatment measures.

(4) Alteration of treatment: somewhat similar considerations apply in relation to alteration of treatment. Punishment by its nature is "once for all". The criminal is entitled to ask that the judge should decide his punishment on the information available at the time of his conviction and, once the judge has weighed out the appropriate punishment, there are no good grounds for its alteration, since the acts which merited it have been done and cannot alter. Subsequent mitigation of punishment-shortening of treatment because of good response to treatment-may be acceptable, but the court, because its essential function is the taking of final decisions alterable only by a higher court, is not felt to be a suitable instrument for achieving this. This concept, however, is unhelpful from the point of view of treating or training an individual. Even were our knowledge about causes of crime and the reformation of offenders much fuller than it is, it is inconceivable that a court could ever guarantee to have chosen, at the moment of the commencement of its sentence, the exact treatment-to be given perhaps over a period of years-appropriate to the individual person before it. A doctor treating even a comparatively well-understood disease could not operate in this way. The doctor prescribes a course of treatment and observes the patient's response to it over a period. On the basis of his observations he continues the treatment or prescribes a different course, more drastic or less, as the situation appears to him to require. But he does not continue a course of treatment where, as a result of his observations, he is satisfied that it is doing no good, or that it has served its purpose and its continuation is either unnecessary or positively harmful.

THE CRIMINAL LAW AS APPLIED TO JUVENILES

55. Turning to the criminal law as applied to juveniles, which is, of course the specific field within our remit, we find that while the general principles are inherently the same as we have described earlier, the balance has been modified in several important respects, the main modifications being that -

(1) The common law, while assuming the criminal responsibility of juveniles, accepts that youth may be a mitigating factor. This appears to be a recognition of the varying moral and intellectual capacity of children; and in some significant sense marks them off, for the purposes of the criminal law, from adults. If the fact of youth is in itself a mitigating factor, this seems to represent an important qualification of the. "crime-responsibility-punishment" concept.

(2) Statute law imports the "welfare" of the child as a major consideration. While it is arguable that this concept is not completely unknown in the general criminal law, it is certainly not stated in explicit form. In relation to juveniles, it appears to have similarities to the civil law concept in relation to custody and guardianship, i.e., it presupposes in relation to the parents that in certain circumstances their wishes may be overridden and the child removed from their control-society pro tempore assuming parental rights. To the child, the idea of penal measures being imposed for his welfare must often be hard, if not impossible, to understand; it presupposes the same concept-in loco parentis-the measures being imposed on the child as by a father on the basis, "It's for your own good". Thirdly, "welfare" looks not to the past act itself, but to the whole surrounding circumstances and above all to the future; and therefore implies a "preventive" or protective concept rather than judging the offence and the punishment which it deserves.

(3) The general criminal law is not greatly concerned with motive and cause. In relation to a juvenile, the natural question must be-why did he do it? Statute law provides for the furnishing of background reports in every case (other than trivial). This appears to be a fairly explicit application of the "preventive" concept.

56. These three considerations together place heavy emphasis on the 66 preventive" concept; and the resultant conflict between the two principles to which we have already referred is in practice brought out even more sharply in the juvenile court than in the adult criminal court. For example

(i) committal to an approved school is often seen by parents and child as a punishment out of all proportion to the gravity of the offence committed;

(ii) of two offenders dealt with for petty theft one is sent to an approved school; and the other to detention in a remand home. (The background reports show the first to be a persistent offender, over-indulged at home and in need of radical treatment. The second needs a short, sharp lesson.) The parents of the first regard the punishment as altogether out of proportion to the offence, and " unfair " as between the two offenders convicted of the joint offence;

(iii) a very high proportion of juvenile offenders are dealt with by admonition and by absolute discharge. On the basis of the offences committed this may be justified; a high proportion of those subsequently graduating to approved schools and borstal probably start off in this way. On the "preventive" principle, custodial or other more positive treatment at a much earlier stage might have more chance of success, but is ruled out as being altogether out of proportion to the gravity of the offence;

(iv) a child pleads guilty to theft of lead from derelict tenements. He undoubtedly realises that in some sense he did wrong. The parents' attitude is that the local authority should have had the buildings fenced off, if not under watch. Against such a parental outlook, where parental standards are in conflict with those of society, it is clearly difficult to regard the child as responsible for his actions.

57. We do not believe that this apparent conflict of aim can ever be wholly eradicated, though the arrangements which we discuss later in our Report are capable, we believe, of reducing considerably such conflicts in the eyes of the parents, if less frequently in the eyes of the child. It would, however, be unrealistic to imagine that cases will not continue in which public measures for a child's protection and future welfare will still be seen as amounting to compulsion and punishment. Such attitudes, even if diminished, will remain as an inherent feature in the situation which has to be faced by those to whom the child's supervision and further training may be entrusted by public action. Attitudes of the kind are, of course, not confined to situations proceeding only from court action in relation to juvenile offenders, but may be found-possibly even more strongly on occasion-in situations where a child is removed from the home as being in need of care or protection.

CARE OR PROTECTION PROCEEDINGS

58. It is useful to contrast at this point committal on grounds of need for care or protection. This is a civil, not a criminal, proceeding. At first sight, the distinction is a clear and simple one. The child has committed no criminal offence but on the basis of certain defined facts and circumstances is alleged to be in need of care or protection. Proceedings are taken by petition, not on criminal complaint, and from the outset, the whole surrounding circumstances and background are in issue. The truth or otherwise of the allegation that the child is in need of care or protection is determined on the basis of the facts and general surrounding circumstances as presented, and is decided on standards of evidence provided for by the civil law, i.e., on standards of probability which are less stringent than those demanded in a criminal prosecution. "Care or protection" proceedings in fact represent an extension of the "preventive" principle, in that they may entail the application of compulsory measures in situations where no criminal offence may have been committed either by the child or the parent. Questions of criminal responsibility do not arise.

59. We have no reason to think that "care or protection" procedure does not meet with fairly general acceptance. As indicated in Chapter 1, the procedure is comparatively rarely invoked. It may be that in present-day circumstances situations so deplorable as to justify proceedings for criminal neglect are less frequent than formerly. * It is, we think, also the case that, notwithstanding the difference in the standard of evidence in criminal and civil procedure, the criterion of need for care or protection as defined in the 1937 Act is such as to require evidence by the petitioner of weighty and fairly specific facts and circumstances justifying the need for intervention. By comparison, the presentation of evidence of an offence committed by a juvenile, related to a specific act on a specific occasion, may be a relatively simple matter. Nevertheless, we think it important to recognise that "care or protection" procedure is an implicit recognition of the "preventive" principle, which may be applied in circumstances in which no criminal offence has been committed by child or parent; in which the standards of evidence are in principle less stringent than those applied in criminal proceedings; but from which the consequences, in terms of interference between parent and child, may in practice be indistinguishable from those ensuing from a finding of guilt in relation to a juvenile offender. The tenor of much of the evidence we received was, as we have indicated, that these legal classifications, while relevant as pinpointing a series of definable facts or circumstances, were ultimately of significance only in so far as they indicated an underlying unsatisfactory situation calling for public intervention which might take any one of a wide variety of forms. Their true significance could be judged only on a thorough assessment of the surrounding facts and circumstances, and only on that basis could the child's needs be decided and his further training taken in hand with any realistic prospect of success. Under "care or protection" procedure (and this can be taken as including proceedings relating to persistent truants and children beyond parental control) that whole background is put clearly in issue as affording a reasonable, objective, factual basis on which to assess the child's needs, which are judged accordingly. The true needs of juvenile offenders on the other hand cannot always be so freely and objectively judged as a result of the nature of criminal procedure which, even with the modifications already introduced by statute, still imposes constraints on those to whom the task of adjudication is entrusted, in that the measures applied are in danger of being scaled down out of regard to the nature of the offence viewed in itself, and the scale of punishment appropriate thereto.

CONSIDERATIONS WHICH HAVE GOVERNED THE APPLICATION OF CRIMINAL PROCEDURE TO CHILDREN

60. Such considerations inevitably raise questions as to the appropriateness of applying criminal procedure to juveniles. As already indicated, the criminal law assumes a high degree of personal responsibility and, though the law recognises youth as a mitigating factor which may be relevant to sentence or disposal, the concept of responsibility is still inherent and fundamental to the initial adjudication issue of guilt or innocence. It has, of course, always been recognised that the personal and moral responsibility of children may vary widely, age itself offering no reliable guide.

61. Equally, a child's capacity to distinguish right and wrong, i.e., his intellectual knowledge of moral standards, may, though well developed even at an early age, not be accompanied by a corresponding degree of emotional maturity which would enable him to act on that knowledge. Again, for a child an active moral sense-as distinct from intellectual knowledge-is developed through practical insight, gained from those with whom he is in the closest day-to-day contact and relationships, these insights being acquired not through formal instruction but from practical experience and example of others in so far as they themselves give practical embodiment to certain standards. Difficult questions for the child may equally arise where the standards of the home and of his immediate associates are in conflict with those generally accepted by society; or for that matter where it appears to the child that there is a marked discrepancy between generally accepted standards, as conveyed to him at home and in school, and the actual practice of other individuals with whom he comes into contact in society.

62. The legal presumption as to age of criminal responsibility, contained in section 55 of the Children and Young Persons (Scotland) Act, 1937, is one of the comparatively few conclusive presumptions of the law, and it shares with such presumptions this characteristic; it enshrines a proposition which is not necessarily true. It is because the proposition may or may not be true, and because it is considered expedient that the law should provide that matters are to be regulated on the basis of the universal truth of the proposition, that the questioning of the truth of the proposition is for practical purposes prohibited. We think it is important, in considering this aspect of the problems before us, to realise that the age of criminal responsibility has been laid down for purely legalistic reasons; it cannot possibly be said that the age so laid down either bears, or was ever intended to bear, any relation to the observable phenomena of child life.

63. A glance at the common law of Scotland will show just what it was that influenced the selection of certain ages beyond which certain consequences in law were attracted. The common law is conveniently set out in Alison's Commentaries on the Criminal Law, published in 1832. The author divides those of less than full age into three categories:

(1) "Minors, whether male or female, who have attained the age of 14 years are liable to any punishment, not excepting death itself for grave offences."

(2) "'Pupils', those below 14 years of age, may, though only 9, 10 or 11 years of age, be subject to an arbitrary punishment if they appear qualified to distinguish right from wrong, but not to the pain of death."

As instances, the author quotes two cases occurring in 1827, one of a boy aged 9 sentenced to 18 months hard labour, and another of two boys aged 13 who were sentenced to be transported for 14 years.

(3) "Children under 7 years of age are held to be incapable of crime and not the object of any punishment."

And in a further comment on this category he says, "At that tender age whatever vice exists must be ascribed to improper tuition or bad example, and the child cannot be considered as answerable for a violation of what he could not understand."

64. There is one very striking feature of the doctrine of the common law of Scotland as laid down by Alison, a feature indeed which provides the justification for the existence of the doctrine at all. It will be noticed that each category is related to forms of punishment. Minors may be punished by death, pupils may not be punished by death but may be punished by any arbitrary punishment, and children under 7 years of age may not be punished at all. Looked at from this point of view the doctrine makes sense, otherwise it does not. It is quite understandable that the conscience of society should have revolted against the imposition of certain punishments upon children of less than a certain age. It is, however, quite outside human experience to assert that there is any age at which children change from being persons who are incapable of forming a criminal intention into persons who are capable of so doing. A moment's reflection will show that there was nothing about the climate of the year 1932 which could have justified anyone in Scotland saying, "At the age of 8 a child can be guilty of an offence whereas at the age of 7 he can not". Again, Alison justifies the rule that children under 7 are held incapable of crime by saying that the child cannot be considered as answerable for a violation of what he could not understand, and by, "answerable" the author means properly liable to be subjected to punishment. That may be true if the punishment of the law is being regarded, but it is certainly not true of other forms of punishment, which, being acts of regulatory discipline, are commonplace in every home from the age at which the objects of them may be held capable of reasoning at all. No witness who gave evidence before us was prepared to say that by clinical observation or otherwise it was possible to come to a conclusion that chronological age as such has any direct bearing on the capacity to form a criminal intent and to commit a crime.

65. The legal presumption by which no child under the age of 8 can be subjected to criminal proceedings is not therefore a reflection of any observable fact, but simply an expression of public policy to the effect that in no circumstances should a child under the age of 8 be made the subject of criminal proceedings and thus liable to the pains of the 'law. Equally, at various intermediate stages prior to adulthood, the effect of statute law is to exempt juveniles below certain ages from certain forms of judicial action. Thus, legislation restricts the imprisonment of offenders between the ages of 17 and 21, the committal to borstal training of juvenile offenders under the age of 16, and (save in exceptional circumstances) committal to an approved school of a child under the age of 10. It is clear, therefore, that the "age of criminal responsibility" is largely a meaningless term, and that in so far as the law refers to the age of 8 as being the minimum age for prosecution, this is essentially the expression of a practical working rule determining the cases in which a procedure which may result in punishment can be applied to juveniles.

CONSIDERATIONS APPLYING IN OTHER FIELDS OF LAW

66. The legal presumption to which we have referred is a presumption for the purposes of criminal proceedings. Looking to various other fields, and in particular to more recent statute law, the position is at first sight somewhat confusing. As one witness put it graphically

"8 -under this age a child is not criminally responsible.
10 -under this age a child must not-other than exceptionally-be sent to an approved school.
12 -the age at which a girl can acquire a separate domicile.
13 -under this age a child may not be employed.
14 -under this age is a child for the purposes of the 1937 Act.
14-21 -the age group for detention centre training.
15 -must attend school up to this age.
16-21 -the age group for borstal training.
16 -under this age may not marry.
16 -under this age may not purchase cigarettes.
17 -under this age is still subject to the juvenile court.
17 -under this age, and over 14 is a "young person".
17 -under this age cannot be sent to prison.
17 -under this age may not be employed in street trading.
18 -under this age may not purchase liquor."

The result of these restrictions as expressed shortly by this witness may be said to be as follows

"At 12 a girl may leave home, but for the next year until 13 she may not be employed. She must attend school until she is 15. She may not purchase cigarettes until she is 16. She may marry at 16, but she is still subject to the jurisdiction of the juvenile court until she reaches the age of 17, and may not purchase a bottle of stout until she is 18, by which time she may be a wife and a mother."

67. It seems clear from these examples that the various age limits in question cannot be justified on any narrow basis of fact. They are simply a broad recognition of the varying capacity and development of children at various ages. In the eyes of the civil law and the law relating to social and educational provision children are not regarded as completely free agents, and over a wide variety of fields of civil responsibility are debarred from rights of choice available to adults. Under the civil law a child in pupillarity is -held to be in a state of absolute incapacity. He has no "person" in the legal sense of the word, and is incapable of acting or even consenting. In civil law the state of pupillarity (i.e., under 14 in the case of boys and under 12 in the case of girls)-the period during which a child may be regarded as in a state of tutelage under his parents and undergoing education-has been accepted as disqualifying him entirely for those rights and responsibilities accruing to adult persons, and indeed this seems to us no more than a practical expression of what from the earliest times have been recognised to be the underlying facts of childhood. In contrast,. it is only in the sphere of the criminal law that any different assumption operates. As we have seen, the legal presumption which the criminal law applies does not purport to reflect any objective facts about the actual age of attainment of responsibility, but was adopted as a practical rule with the object of exempting children of tender years from the pains of the law. Subsequent legislation has had the effect of modifying substantially the rigours of the law so far as disposal is concerned, and has introduced a further series of broad distinctions at later ages, the effect of which is to debar the application to children below those ages of various penalties and forms of custodial treatment. At the same time, the introduction of another form, of non-criminal proceeding, namely, "care or protection" proceedings-the practical effects of which may in many cases be indistinguishable from those taken against juvenile offenders-and indeed the emphasis which statute law places on the 41. welfare" of juvenile offenders,. serve to indicate society's concern that effective preventive measures should be applied at the earliest possible stage wherever children come into trouble of such seriousness as to bring them within the ambit of the law. Since, however, judicial action in relation to juvenile offenders in all cases takes place within a framework governed by criminal procedure, the proceedings as a whole and in particular, the consideration of measures to be applied once the offence is established, cannot avoid being coloured by the underlying general concepts of responsibility and punishment which, for the reasons we have indicated in paragraph 54, may be positively detrimental in their practical application, in that they may inhibit the application of the preventive measures which the circumstances clearly demand, or the variation of measures already applied in circumstances in which it is clear that their continuance is serving no useful purpose. Moreover, as we have seen, the original reasons for exempting children of tender years from criminal proceedings-the rigours of the criminal law as operated in earlier times-have largely disappeared. It is, of course, arguable on the basis of observable fact that children under the age of 8 do sometimes commit acts amounting in law to criminal offences, and do so in the knowledge that they are doing wrong. There may well be occasions, e.g., where they are acting in concert with slightly older children, in which it would be equally appropriate even at that early age that they should be the subject of action under criminal, as distinct from ~4 care or protection", procedure. Such cases would on any criterion be likely to be rare. What is undoubtedly of greater practical importance, however, is whether, in the light of the considerations already mentioned, the application of criminal procedure to juvenile delinquents above the age of 8 has compelling practical advantages, or whether delinquent children above that age might, in the interests of effective preventive measures, be better dealt with by some form of non-criminal procedure.

A SUGGESTED ALTERNATIVE

68. As we have indicated, "care or protection" proceedings offer an existing example of a procedure aimed at early preventive action and not involving criminal procedure. Some of our witnesses suggested-again on the basis of some of the arguments discussed above-that all children below a certain age (for example, 10, 12 or 15), whether alleged as at present to be in need of "care or protection" or alleged offenders, should be brought before a juvenile court on petition. The basis of action in all cases would be the child's need for protection and training as shown by the facts alleged, irrespective of whether these facts consisted of a delinquent act or acts, or comprised other general facts and circumstances showing a clear need for protective and training measures. On that basis, children below the specified age-limit would be deemed to be incapable of committing crimes or offences, and delinquents below that age would then be brought before a juvenile court on the basis that they had committed acts which, if done by an adult, would amount to crimes or offences.

69. We see little advantage in a change of this kind, which to some extent seems to us little more than one of nomenclature. One consequence of such procedure would, however, be that, since the proceedings would be of a civil nature, all cases would be determined on civil law standards of probability, rather than on the criminal law standard under which the court has to be satisfied beyond reasonable doubt. In theory, this could result in the acquittal of a child or young person only slightly above the specified age-limit after trial for an offence, whereas a younger associate in the acts in question, brought before the court under "care or protection" procedure (in which the whole background circumstances would be in issue from the outset and in which proof would rest only on a balance of probabilities), would be the subject of judicial action. While the practical force of such objections has, we think, sometimes been overstated, this does not alter the question of principle. We consider that the present grounds which the law recognises as properly affording a basis for "care or protection" proceedings should continue, subject to certain subsidiary amendments which we discuss later. It seems to us, however, that any, attempt to determine the truth of an allegation, where this is founded on the commission of an act constituting a legal offence, on the basis of the present "care or protection" procedure is both artificial and inherently undesirable.

70. At present, action in relation to juvenile offenders is entirely dependent on the initial establishment of the specified acts alleged which, if established, amount to the commission of an offence. If society is prepared on the proof of such acts by juveniles to authorise fairly sustained measures of education and training-in the interests of the child for the prevention of crime and for his own longer-term well-being-on the basis of thorough and searching enquiry into the whole surrounding circumstances including the child's home background, it is clearly of paramount importance that the initial basis for action should be established beyond doubt by stringent and testing procedures. This is precisely what criminal procedure aims to do. As a practical method of ascertaining and resolving disputed questions of fact, where the facts alleged amount if proved to the commission of a legal offence, it has stood the test of time and we do not believe that any erosion of it would meet with acceptance. It is clear to us, therefore, that under any arrangements that may be devised for the adjudication of juvenile offences, any dispute as to the allegation of fact must be determined on the present standards of evidence under criminal procedure by a court of law. That issue-resulting in a judicial finding of fact- is, however, an entirely separate one and calls for quite different skills and qualities from those to be applied in deciding on the action to be taken in relation to delinquent children once the fact is established.

71. In some countries, this dichotomy of function is recognised by completely separating the two in practice. The courts of law are concerned solely with the establishment of the truth or otherwise of the allegation issue, the treatment of juvenile offenders then being entrusted entirely to a separate and specialised agency, whose sole function is the consideration and application of training measures on referrals from the courts. That agency has the widest possible discretion, within the legal powers of disposal conferred on it, to select those training measures appropriate to the needs of the individual child and to vary these subsequently as circumstances require. - The shortcomings which cause dissatisfaction within the present juvenile court system (and this is no reflection on those who serve in such courts) seem to us to arise essentially from the fact that they seek to combine the characteristics of a court of criminal law with those of a specialised agency for the treatment of juvenile offenders, proceeding on a preventive and educational principle. On that principle the offence, while the essential basis of judicial action, has significance only as a pointer to the need for intervention. Its true significance will not necessarily be found on the basis of any pre-conceived standard, i.e., by viewing the offence simply as an act in isolation and judging its potential seriousness simply by the ready-made standard offered by the range of sanctions which the law (and thus society at large) attaches to the particular class of offences which it exemplifies. In our view, criminal procedure does undoubtedly affect the whole atmosphere and manner of proceedings in juvenile courts; it also colours the entirely separate stage of the proceedings at which, the issue of fact having been resolved, the question of practical action in the form of training measures appropriate to the needs of the individual offender falls to be resolved. The underlying conflict between the two separate principles cannot fail in practice to create confusions and misconceptions which may be present, consciously or otherwise, in the minds of the bench; which cannot fail to be reflected in the general atmosphere of the court; and which are thus liable to be carried over to those appearing before such courts. With experienced persons on the bench these inherent defects may to some extent be diminished, more especially where the bench consists of a single, full-time, legally qualified judge, accustomed to facing such distinctions and conflicts daily in so far as they are potentially present in any criminal proceedings, whether involving an adult or a child. Equally, where juvenile courts comprise a lay bench, there are on occasion risks that- out of a laudable desire to create an atmosphere conducive to the consideration of the child's treatment needs, the necessary degree of exactitude appropriate to the determination of the initial allegation issue, where disputed, may sometimes be overlooked, and unintentioned irregularities may develop.

A NEW ALTERNATIVE

72. Such considerations seem to us to point to the desirability of separating clearly the two issues of (a) adjudication of the allegation issue, and (b) consideration of the measures to be applied. However desirable such a change may appear to be in principle, it may be felt to raise practical problems, involving major changes of organisation and machinery, of such magnitude as to be unworkable in the conceivable future. We have therefore sought to examine how far in practice questions arising on the allegation issue occur, since clearly it is only in these cases that under the scheme discussed there is any disputed question at that stage falling to be resolved by criminal process before a court of law.

73. The consensus of opinion among our witnesses, supported by inquiries which we addressed to a representative cross-section of juvenile courts in Scotland (which together dealt with about two-thirds of all juveniles proceeded against), indicated that in almost 95 per cent of the cases there is no dispute as to the facts alleged, those concerned pleading guilty. In such a situation no evidence is led, the allegation issue thus being determined not by the court but by the admission of the accused. Only the remainder-around 5 per cent-pled not guilty and thus proceeded to trial. In the light of these facts, it seems to us entirely practicable to devise a procedure whereby juvenile offenders would in all cases be brought before a specialised agency whose sole concern would be the measures to be applied on what amounts to an agreed referral. Under such a procedure on appearance, the child and his parents would be asked whether they fully understood the nature of the allegation and in the parents' presence the child would then be asked whether or not he admitted to having done the acts alleged. If this was admitted, the agency would then proceed to deal with the child. If the child denied the act in question, action by the agency would be stayed, and the case would immediately be referred to the Sheriff Court, which would thereupon have jurisdiction to determine under criminal procedure the disputed allegation of fact. Where the Court found the facts established, the case would thereupon revert to the agency, which would then be empowered to consider measures of treatment in the same way as on an "agreed" case. The agency would thus exercise jurisdiction only on the basis of facts established by admission of the child in the parents' presence and with their agreement, or after an adjudication by a court of law. It would have no concern whatsoever with the determination of legal issues, its sole function being the consideration and application of training measures appropriate to the child's needs. Such an agency would clearly not be a criminal court of law, or indeed a court in any accepted sense. It would be the duly constituted public agency authorised to deal with juvenile offenders, where necessary by the application of compulsory measures. Within the range of measures authorised by law, it would have the widest discretion in their application appropriate to the needs of the individual child, who would thereafter remain within its jurisdiction for as long a period as was judged to be necessary, subject to whatever upper-age limit might be fixed by statute. During that period the agency would have the widest discretion to vary or terminate the measures initially applied, and where appropriate to substitute others.

74. For convenience of discussion at this stage, we shall refer to this agency as the "panel", as distinct from the courts of law. The panel would consist on any given occasion of three persons drawn from a list for the area in question-all of whom would be selected at the outset as being persons who either by knowledge or experience were considered to be specially qualified to consider children's problems. They would be essentially a lay body, and while in practice their numbers might well include members of the legal profession, doctors, teachers, and local authority members, none would be appointed by reason of any existing official position or specialist qualification, but simply on the basis of personal qualities. It seems to us important that as a public authority vested with powers of compulsory action the panel should be seen to be an entirely independent agency, and the machinery of appointment should reflect that fact.

75. The panel would thus be neither a local authority committee nor a court of law. It would, however, by law be the duly constituted public authority appointed to deal with juvenile offenders. Since the panel would be vested with coercive powers, e.g., in certain cases to order a child's removal from home, its decisions would be subject to a right of appeal to the Sheriff. We examine the powers and procedure in a later Chapter. The salient features to which we wish to draw attention at this stage are that

(a) there is no question under such proposals of taking juvenile offenders outwith the ambit of the law. Under the proposals, a few exceptions apart, juvenile offenders would be dealt with not by criminal procedure, but by a special agency on whom this specialised jurisdiction would be conferred by law;

(b) such a panel would not be empowered to resolve disputed questions of fact, these being reserved to a court of law (the Sheriff Court);

(c) while the actual range of powers conferred on the panel would not in our view differ appreciably from those available to the present juvenile courts, the manner in which they could competently be exercised would be very different. In principle, a child would remain within the panel's jurisdiction up to whatever age-limit was fixed by statute, and during that period the measures applied could be terminated or varied (by substituting any of the methods of disposal within the panel's powers for that initially ordered). Since such arrangements clearly imply the possibility of more intensive and sustained measures of supervision and training than at present, including in some cases the child's removal from home for varying and initially indeterminate periods of residential training, it is clearly important that such decisions, involving as they do the possibility of major interventions between parent and child, should be open to judicial scrutiny on an appeal to the Sheriff.

76. We do not wish to suggest that in the majority of cases such sustained measures would in fact be likely to be applied. In the majority of cases, we believe that the parents, whatever their shortcomings in the eyes of outsiders, are genuinely anxious for their children's well-being, and in many cases where consideration before the panel proceeded upon a basis of agreed facts the panel's decisions would be arrived at after extensive consideration and discussion with the parents, as a result of which it would be apparent to all concerned that the measures applied were determined on the criterion of the child's actual needs. In some cases, action would be agreed with the parents and would then proceed on an informal basis, i.e., without a formal order by the panel. In others, where a formal order was made placing the child under supervision, this would not necessarily be seen by the parents as unwarranted interference. Nevertheless, if these arrangements are to be in any way effective, we consider that they may be expected to result in a wider use of continuing supervision of the delinquent child within the community, and in some cases in a greater readiness to apply residential training measures involving removal from home at much earlier stages than apply at present. In so far as these arrangements imply sustained action from the earliest possible stage in the interests of prevention of more serious delinquency, we do not seek to deny that this would involve greater inroads into the home and family life by supervising officers nominated by the panel-all of which may be represented as unwarranted interference in the liberty of the individual. We have indicated, and discuss in more detail in a later Chapter, the rights of appeal which would be available against decisions by the panel-rights which in our view offer safeguards as great as are afforded under existing law, and which may well in practice be more effective.

THE NEEDS OF THE INDIVIDUAL CHILD AS THE TEST FOR ACTION

77. A study of human history would no doubt show that in every age succeeding generations have in turn deplored the ways of youth. Alison's Commentaries, written in 1832, to which we have already referred, noted "the vast increase in juvenile delinquency". In our own century it was in earlier years fashionable to attribute delinquency in large measure to social and environmental factors. It had for long been observed that many of those convicted of delinquency came mainly from poorer elements largely to be found in certain districts of urban communities-districts whose names in time became, sometimes undeservedly, local or even national by-words. Improvement in economic and living standards and the development of the social services has not brought the improvement which on this view was to be looked for. It is, of course, the case that, while major advances in these directions have been achieved, there still remain substantial sectors within our society which that progress has only begun to touch. The environmental argument, it is now recognised, could, however, never offer a universal answer; in a great many delinquents a degree of maladjustment, of malfunction personal to the individual, has always been observable; and even in the so-called "delinquent" areas, the majority of -L-he children do not come before the courts. Few parents actively teach their children to steal, although rather more may imply an unconventional system of values at odds with that of society at large. What does seem clear is that despite the social advances made, juvenile delinquency, while still affecting a small minority of the child population, has not diminished. It has kept pace with the increase in child population, and the increase has latterly shown some signs of outstripping a purely proportional growth. In consequence, there is, we believe, currently a fairly general, though not always clearly articulated, dissatisfaction with the apparent operation of the existing arrangements for dealing with juvenile offenders. As we have already indicated, we do not consider that this is a reflection on the existing juvenile courts, given the general framework and principles within which they are required to work. The problems daily confronting those courts go to the roots of human behaviour, and, however valuable the insights already or likely to be gained from research based general studies, these problems cannot be resolved in terms appropriate to those of an exact science.

78. Ultimately the question must be resolved on practical grounds. Delinquency is predominantly an activity of the young. On purely practical grounds it would therefore appear that emphasis ought to be given to preventive and remedial measures at the earliest possible stage if more serious delinquencies are not to develop. That implies above all the application of an educative principle, which cannot hope to operate with any measure of success except under a procedure which from the outset seeks to establish the individual child's needs in the light of the fullest possible information as to his circumstances, personal and environmental. The establishment of those needs is in itself a task calling for essentially personal qualities of insight and understanding, which obviously cannot be guaranteed under any system of selection. None of the existing systems of selection can be said to start from such a basis, and, difficult and demanding though the duties are, we are confident that the alternative would be able to draw on a much wider field of suitable persons than is at present the case. The task of the new body calls for skills quite different from those involved in adjudicating legal issues, and it is quite inappropriate that it should be expected to combine the two functions.

79. Further, since there is no "master-key to fit all cases", the criterion being that of the child's needs, it follows that the new body must be accorded, subject only to certain general limits laid down by law, an unfettered discretion not only initially to apply, but to modify or vary, the measures appropriate to the individual child.

80. It must finally be a matter of judgement how far, in relation to juveniles and their parents, the application of an educative principle in this way would in fact and in practice represent an appreciable inroad into personal and family life, amounting to loss of liberty or freedom from interference such as to be unacceptable in our society. If, on such grounds, it were to be felt that a fuller recognition of the educative principle could not be accepted, it is necessary to face the practical alternatives. A return to a purer form of the 1.6 crime-punishment" concept seems altogether unacceptable. If that be so, society must consider whether it is satisfied with the status quo and is prepared to accept the social consequences. For our part we do not believe that a retention of the present system, resting as it does on an attempt to retain the two existing concepts in harness, is susceptible of modification in any way which would seem likely to make any real impact on the problem.

81. Finally, if society's present concern is to find practical expression in a more discriminating machinery for intervention, it must be recognised that society's own responsibility towards the children concerned will be correspondingly increased, and that this will make commensurate demands on the nation's resources.

*

The annual number of persons proceeded against for cruelty to children in each of the five-yearly periods ending in the years shown below was as follows:

1914 1930 1938 1962
682 209 319 295