Under EU law, asylum seekers are defined as

Introduction

Under EU law, asylum seekers are defined as “applicants for international protection”. Their situation is regulated by the EU asylum acquis.[1] The position of Roland and Rajiv is that of two individuals who are seeking asylum after fleeing from Pakistan, where Rajiv is a potential target for torture due to his membership of a vegan group. As they have taken different routes into Europe, the measures that are available to them under the EU law will have to be considered individually. However, Rajiv and Roland are identical twins and Roland is basing his asylum application on that ground.

Roland came into Europe to Rome from Canada. He stayed in Rome for three weeks before taking a bus in Rome bound for Paris. However, the French authorities refused his entry into France and told him that he needed to stay in Italy and make his asylum claim there. Rajiv made his asylum application in Paris. He has stated that as a part of the radical vegan group he is a recognisable target for the meat-eaters alliance, which is also known for its use of torture.

The principal international convention that is applicable here is the Convention Relating to the Status of Refugees 1951 and its Optional Protocol Relating to the Status of Refugees 1967. The term ‘refugee’ is defined in Article 1(A)(2), as a person who has a well-founded fear of being persecuted and owing to such fear, is unwilling to avail himself of the protection of that country. The grounds for such a fear include membership of a particular social group. The Treaty for Functioning of the European Union (TFEU), article 78 provides that the member states are bound by the 1951 Convention and also provides for the Common European Asylum System.[2] The provisions of the ECHR may be used in the case with respect to both Roland and Rajiv. In cases where asylum applications are made and the asylum seeker is able to show that there is a fear of persecution in the state from where he has fled, ECHR provisions and its jurisprudence as developed by the European Court of Human Rights is engaged. In the event of a possibility of torture, the refusal of asylum is contrary to the provisions of both the Refugee Convention as well as ECHR. The right to asylum as such is not provided in the ECHR, but article 18 of the EU Charter of Fundamental Rights protects the right to asylum. The principal provision under the ECHR, which is relevant to this case is article 3, which protects the right to life and includes the prohibition of torture and degrading treatment. Article 5 protects the right to liberty and security of person. If there is a refusal of asylum and the asylum seeker is deported to a country where he may face a threat to his life and security, or where there is a chance that such a person may be tortured, then the rights under the ECHR are violated. Therefore, under the EU law, the asylum seeker may also appeal to the European Court of Human Rights and ask for relief under the ECHR. This was held by the European Commission in the case of Chahal v the United Kingdom.[3] In that case, the European Commission decided that the UK could not deport the applicant to India, where his life was threatened as that would be a violation of his Article 3 rights. The European has also held that extradition of a person to a country where such a person may be tortured is a violation of the ECHR, article 3, which prohibits cruel or inhuman treatment.[4] Rajiv and by association, Roland, have reasonable threat to their life and also face torture if they are sent back to Pakistan, therefore, their case is covered by the ECHR, article 3. The Qualification directive,[5] article 3 provides a prohibition on torture. Article 15 provides the definition of ‘serious harm’, which may include torture or inhuman treatment or punishment. Rajiv is a member of the prominent Vegan group, due to which he is a recognisable target for the meat-eaters alliance, which is also known for its use of torture. Roland is an identical twin of Rajiv and being such, he is also a potential target for torture or inhuman treatment. Also being brothers, Roland’s application should be heard by France as per the requirements of the Dublin Regulation, article 8, which provides that if one family member’s application is not yet been the subject of a first decision regarding substance, that state will hear the application.[6] The Dublin Regulation requires that the applications of the family members are processed together by one state so that the decisions with respect to family members remain consistent.[7] The Asylum Procedures Directive,[8] article 43 allows the processing of asylum applications at the border. As Roland was stopped by the Border Control authorities, he may make an application to the authorities at the border to make an asylum claim to France. If he makes such an application, France may grant or refuse it within a period of 4 weeks but in case France does not respond, the application is deemed to be processed in favour of asylum.[9] Moreover, article 9 (1) of the Directive provides that an asylum seeker is allowed to remain in the state for the purpose of the completion of the asylum procedure until a decision by the responsible authority has been made.[10] Recently, in AB v Council of State,[11] the European Court of Human Rights has decided a case involving application of asylum to prevent relocation to a country where the applicant had reasonable cause to believe that he would be persecuted because of membership to a particular social group. The court also held that a social group is not constituted merely by the knowledge that someone is known to belong to the social group, but by the fact of how the society perceives those who belong to that group. Moreover, the risk of the persecution may be based on facilitation, support, or toleration of the persecuting behaviour by the authorities in the state. Rajiv, and by association, Roland can use the provisions of the ECHR, Asylum Procedures Directive and the Qualification Directive to process their application for asylum.

'The concepts of national sovereignty and EU supremacy can never be reconciled'. Discuss.

The concept of EU supremacy means that in case there is a conflict between the EU law and the law of a member state, the EU law will prevail. Prima facie, this shows that there is an obvious conflict between the concepts of national sovereignty and EU supremacy and that there two concepts cannot be reconciled. However, in the case of EU and European integration, the situation is not as simple and it can even be said that some reconciliation between the EU law and the concept of national sovereignty has been found. Sovereignty may be defined as the “legal capacity of national decision makers to take decisions without being subject to external restraints.[12] Therefore, for nations to be sovereign in this sense, there should be no external restrictions that impede the autonomous decision making in that nation. It can be said that the concept of national sovereignty is being transformed under the EU; with the transformation of the realm of sovereignty linked to both specific territory as well as population.[13] The EU supremacy is seen in the context of EU’s internal market and monetary integration, however, supra-nationalism is the most apparent in the legal system. The EU law has a direct effect in national jurisdictions, even in the absence of incorporation of the EU law in the member states’ legal system. The European Court of Justice (ECJ) has the power of judicial review over interactions between members states as well as the behaviour of government within their territory.[14] The Treaty on the Functioning of European Union (TFEU) provides the power of judicial review to the ECJ under article 263. Therefore, in the legal system, it is seen that the principle of EU supremacy has been accepted to a great extent. The concept of EU supremacy was developed by the European Court of Justice (ECJ) in cases that came up before it. Supremacy of EU law means that in case there is a conflict between the EU law and national laws, the EU law will prevail. This has been relevant to EU law as well as EU courts’ jurisdiction. Due to the power of the EU courts to review the actions of the member states, there has been an increasing submission of the member states to the supremacy of the EU. However, that by itself cannot mean that the concept of EU supremacy and national sovereignty cannot be reconciled. The member states have chosen to accept the supremacy of EU law in certain areas and they are free to draw back from the subjection to EU supremacy by coming out of the EU. In that regard, the external constraints will not apply to the member states’ exercising their sovereign right to repudiate their membership from the EU. Although, as long as the states continue to be members of the EU, they are bound to accept the supremacy of EU. In Van Gend en Loos v Nederlandse Administratie der Belastingen,[15] the ECJ recognised that under the new legal order constructed by the EU law, the member states had agreed to limit some of their sovereign rights. In Costa v Enel,[16] the ECJ held that when it came to interpretation of EU law, the highest courts of appeal were the EU courts. In this case, the court made two observations with respect to the relationship between Community law and national law. First, by becoming a part of the EU, the member states had transferred sovereign rights to the EU. Second, the status of Community law as it was applied uniformly and generally throughout the Community could not be questioned by the member states.[17] This would imply that the concept of national sovereignty and EU supremacy cannot be reconciled. However, inter-governmentalist approach suggests that members do not cede their sovereignty to EU, rather European integration implies a pooling or sharing of sovereignty and not a transfer of national sovereignty to a supra national level.[18] The fact that there can be a reconciliation between EU supremacy and national sovereignty is borne out by the following. In the UK, the courts have actually found a way to reconcile national sovereignty with EU supremacy.[19] The House of Lords made a reference in 1988 (Factortame case) to the ECJ in a case involving a conflict between the EU law and a parliamentary legislation. In order to do so, in R (Factortame Ltd) v Secretary of State for Transport,[20] the House of Lords suspended a domestic legislation for referring the matter to the ECJ. Despite accepting this judgement of the ECJ, the House of Lords also argued that EU supremacy has been accepted by the British Parliament by acceding to the EU under the 1972 European Communities Act. However, the House of Lords also accepted that a future British Parliament can also repeal the 1972 Act and thereupon the EU supremacy will no longer apply to the UK.[21] In Thoburn v Sunderland City Council, the court stressed on the fact that the EU law’s supremacy in the UK is a Parliamentary prerogative.[22] In Manchester City Council v. Pinnock,[23] the Supreme Court held that the courts in Britain were not bound to follow every principle laid down by the Strasbourg court. Recently, the Supreme Court has reiterated the position in R (HS2 Action Alliance Ltd) v Secretary of State for Transport.[24] This is a clear reconciliation between the national sovereignty and EU supremacy. Other EU states have also made similar reconciliation between their law and the EU law. For instance, in Lithuania, EU law is superior to the ordinary legislation but not the Constitution of Lithuania.[25] Similar position has been taken by the Constitutional Tribunal of Poland.[26] Clearly, the member states have found their own balance as between their own sovereignty and the EU supremacy principle, thereby reconciling the two. It is seen that the principle of EU supremacy is to be seen from the perspective of states who still have the power to make their exceptions to the supremacy principle as seen in the case of Poland and Lithuania.

The right to free movement of persons enjoyed by EU citizens is always conditional. Discuss.

The Treaty of Functioning of the European Union (TFEU), article 20 provides that all nationals of EU states are also EU citizens. Furthermore, article 21 provides the right to free movement within the EU as an important aspect of EU citizenship. The right to free movement of persons is a right belonging to all EU citizens under the EU law. The right is also an important aspect of creation of a single internal market in the EU. The right to freedom of movement is provided by the Treaty on the Functioning of the European Union (TFEU), article 45, which provides that all EU citizens shall have the right to move freely within the EU and that EU member states shall not discriminate against the EU citizens with respect to conditions of work. The right of EU citizens against such discrimination has also been upheld in different decisions of the ECJ. For instance, in Terhoeve v Inspector van de Belastingdienst Particulieren/Ondernemingen Buitenland,[27] the ECJ held that not receiving equal pay, benefits and social security by a worker who is an EU citizen when he moves from one state to another, is an impediment in the right of free movement. In another case, Roland Ritili v Ministre de l’Interieu,[28] the ECJ held that the right of a worker to move and work in any part of the EU is granted by TFEU. The right under TFEU, article 45 is not absolute and there are certain limitations on the right. Particularly, member states may restrict the right on the grounds of public policy, public security or public health and the right does not extend to getting employment within the public sector of any member state.[29] The right and freedom as envisaged under Article 21 does not apply to the public sector. This was also upheld by the ECJ in Commission v. Belgium,[30] wherein the Court allowed that the ground of safeguarding public interest of the state is involved in reserving national posts by the member states for its own nationals. Moreover, the court also explained that working in the public sector involves the direct or indirect exercise of authority that arises out of public law and duties, peculiarly suited for exercise by nationals of the state.[31] The significance of the right to free movement of persons is that it is one of the four freedoms in TFEU, which were thought necessary for the successful building of the internal market.[32] However, at the same time, it was considered that there could be objections to an unrestricted right of free movement of persons and therefore, restrictions and controls may be exercised by member States against nationals of other states. Considering this, the conditions, restrictions and controls were developed under the TFEU and later by the ECJ. Consequently, member states can define controls and restrictions that may be used to restrict the entry of non-nationals from other EU states. These can include border controls, or other such measures that can impede the free movement of persons, such as restricting claims of social security by non-nationals. Providing the right to free movement of persons and also listing controls or conditions on such rights, is a method of balancing the interests of EU citizens with member states’ interests. In this, the ECJ and other EU judicial authorities have played an important role in providing a balance between the right to free movement of individuals and states’ right to protect its interest. [33] Therefore, in Boumbast and R v Secretary of the State for the Home Department,[34] the ECJ held that while EU citizens have the right to move and reside freely within the EU, such right is subject to the conditions provided by some provisions of the TFEU, including in articles 20 and 21 and 45. An important condition here is that the national security or public interest of the state must not be harmed by the granting of the right to free movement. For instance, in Criminal Proceedings against Wijsenbeel,[35] the ECJ held that member states have the right to carry out background checks on persons wanting to enter into their territory. The case involved a Dutch national who refused to let authorities check his passport to establish his nationality when he was re-entering the Netherlands from another state. The discretion of the method of conducting the checks is left to the states as held in Janko Rottmann v Freistaat Bayern,[36] wherein the ECJ held that it can judicially review member states’ decisions and actions but refrains from interfering with the discretion of the states.[37] The Citizens’ Rights Directive,[38] which is also called as the Free Movement Directive is also applicable here. This Directive gives the right of freedom of movement to the European Economic Area. This Directive also makes this right conditional to the citizens not being a burden on the state and having a comprehensive health insurance. The implementation of the EU citizenship and its co-related right to free movement within the EU, as provided under articles 21 and 45, also give rise to conflicts between free movement of individuals and the desire of the member states’ to control entry into their territories on the ground of the social, political and economic impacts of the free movement of persons. The balancing of the conflicting interests in this regard has been primarily the responsibility of the ECJ, which it has done by addressing the relevant economic, social and political aspects of the conflicts.[39] Therefore, the understanding of the conditions which are placed on the right of free movement is also found in the many decisions of the ECJ covering these problems. Other EU institutions, such as the European Parliament and the European Council have also played a role in this by providing enabling provisions for the exercise of the right of free movement.[40]

The obligation to accede to the European Convention on Human Rights signals a highly significant shift in the direction of EU law. Discuss.

The obligation of EU to accede to the European Convention of Human Rights (ECHR) signals a very significant shift in the direction of the EU law because this step has ramifications for the concept of the EU law autonomy and the exclusive jurisdiction of the ECJ with respect to EU institutions. The EU will also become the first non-state party to the ECHR. With the accession to the ECHR, the EU institutions will become subject to another court, which is the European Court of Human Rights. This, according to some scholars, would end the exclusive jurisdiction of the ECJ and also the notion of EU autonomy.[41] However, this measure has long been advocated by some legal scholars as the natural step forward in the progress of the European Community law.[42] The accession was even seen as being advantageous to the Community as a whole.[43] However, now that the treaty changes have been made to allow such an accession, objections are being made, primarily by the ECJ to the accession of the EU to the ECHR. These objections primarily stem from the autonomy of the EU law. In its opinion on the accession, the ECJ said that Protocol 16 to the ECHR,[44] runs counter to the autonomy of EU law, as well as the existing mechanisms of inter-judicial dialogue in the area of human rights protection. [45] Due to the opinion given by the CJEU, the EU cannot as yet accede to the ECHR as the Draft Accession Agreement has been disapproved of. It is pertinent to mention here the Kadi judgement of the ECJ wherein the court held that the review by the court of any community measure’s validity in the light of its impact on fundamental rights must be considered to be an expression of the constitutional guarantee stemming from the EC Treaty as the autonomous legal system that cannot be prejudiced by any other international agreement.[46] The Kadi judgement is reflective of the judicial thinking within Luxembourg, which sees the EU legal order as having a constitutional status. This legal order is set to be changed if the EU accedes to the ECHR. When the European Coal and Steel Community (ECSC) and the EEC were first formed, there was no mention of human rights and fundamental freedoms in the treaties. This is because the first steps in European integration were purely economic steps, and although politically there was a great deal of discussion on human rights aspects, these were not formally included in the treaties.[47] However, now the Treaty of European Union, article 6 (2) provides that the EU shall accede to the ECHR, with the word ‘shall’ signifying the compulsory status of the direction to accede to the ECHR.[48] This marks a significant shift in the direction of the EU law and also provides a significant restriction on the EU institutions in context of their autonomy vis –a- vis the EU supremacy. The ECJ has up till now strictly protected the EU institutions’ autonomy as well as its own exclusive jurisdiction over the EU institutions. The ECJ had rejected the EU accession to the ECHR in its decision dated 18 December 2014.[49] This signals the ECJ’s desire to protect the autonomy of the EU law.[50] In an earlier decision by ECJ in 1996, the court had held that as the European Community law was structured at that point in time, the Economic Community could not accede to the ECHR.[51] The decision of the court could only be overturned by the amendment of the EC Treaty, which was done by the TEU (Lisbon Treaty), which provided that the EU shall accede to the ECHR.[52] The significance of the EU’s accession to the ECHR needs to be understood in order to analyse the significant shift that it poses to the EU law. After the EU accedes to the ECHR, the EU will become subject to legally binding judicial decisions of the European Court of Human Rights. The EU will also have to participate in statutory bodies of the Council of Europe, which include the Parliamentary Assembly and the Committee of Ministers, when they act under the ECHR. The interpretation of the ECHR rights by the European Court of Human Rights shall be directly enforceable against the EU institutions when acting within the scope of EU law.[53] Most importantly, by subjecting EU law to the jurisdiction of the European Court of Human Rights, individuals will be enabled to submit complaints against the EU institutions to the European Court of Human Rights. For some, this is one of the last gaps in human rights protection within the EU, which needed to be addressed.[54] The notion of the legal autonomy of the EU legal system, is impacted by the accession of the EU to the ECHR.[55] The notion of EU’s legal autonomy has been accepted since the decision in Costa v Enel.[56] That case established the EU law supremacy and also established the EU legal system to be an autonomous supranational legal order.[57] In Internationale Hendellsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel,[58] the ECJ held that the validity of the EC measure or its effect within a member state cannot be affected by allegations that such measure is contrary to the fundamental rights that are recognized by that state’s legal or constitutional framework. Here, it is notable that there was a pragmatic reason why the ECJ took a strict stance on the EU law and institutions’ autonomy. The reason was that the autonomy principle was important to maintain lest the uniformity and efficacy of EU law was jeopardized by the domestic courts or constitutions.[59] The concept of the exclusive jurisdiction of the ECJ over EU institutions was essential to the maintenance of this autonomy, as the ECJ remained the only EU court that could conduct a judicial review of the actions and measures of the EU institutions.[60] Notwithstanding the obligation to accede to the ECHR, the awareness of the need of maintaining the EU law autonomy and the ECJ’s exclusive jurisdiction in context of EU treaties is not lost on the member states. Indeed, article 6 (2) of the TFEU clearly gives the jurisdiction to the European Court of Human Rights only in context of protection of human rights and fundamental treaties.

The Police Reform Act 2002, the Anti-Social Behaviour Act 2003, the ‘Together Campaign’ in 2003, and the ‘Respect Action Plan’ in 2006 have all reinforced New Labour’s commitment to tackling acts of anti-social behaviour (Solmon et al, 2007, p. 44).

Applications for ASBOs must be made by either, the police, local government authorities, registered social landlords, or housing action trusts (Donoghue, 2010, p. 17). The application agency must demonstrate that the defendant has behaved in an anti- social manner, and that an ASBO is necessary for protecting members of the public from further anti-social behaviour by the defendant (Donoghue, 2010, p. 17). The official definition offered for anti-social behaviour in relation to ASBOs is offered by the Crime and Disorder Act 1998 as behaving “in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself” (Solomon et al, 2007, p. 44). A broad range of criminal and non-criminal behaviour fall within this, and the official guidance on what constitutes anti-social behaviour includes verbal abuse, criminal damage, littering, hoax calls, etc. (Simpson, 2009, p. 232; Donoghue, 2010, pp. 20-21).

ASBOs may be issued to anyone over the age of ten (Simpson, 2009, p. 231). ASBO proceedings can be dealt with by magistrates, the crown, or youth or county courts (Donoghue, 2010, p. 17). Once granted, an ASBO is in effect for a minimum of two years, and contains conditions which prohibit the defendant from participating in certain acts, or going to certain areas (Donoghue, 2010, p. 17). Originally ASBOs only had force within a local government’s jurisdiction, however, now these apply throughout England and Wales (Simpson, 2009, p. 231). Violation of ASBO is a criminal offence (Simpson, 2009, p. 231). For those who violate an ASBO and are over the age of 17, penalty can include imprisonment for up to five years (Simpson, 2009, p. 231). For those who violate an ASBO and are between the age of 12 and 17, the punishment can be a detention and training order (Simpson, 2009, p. 231). For those aged between 10 and 11, the punishment can be performing community service (Simpson, 2009, p. 231).

Tony Blair’s justification for the introduction of ASBOs was anti-social behaviour was a serious problem, and the courts were unable to sufficiently deal with the random acts of violence and low levels of disorder (Blair, 2005). Blair (2005) further argued that, in order to sufficiently deal with anti-social behaviour, the police and local authorities needed new powers. However, scholars have criticised New Labour’s justifications. Tonry (2004) asserts that New Labour ‘invented’ the concept of anti-social behavior and it was nothing more than just a part of their politics on crime and disorder.

ASBOs can be criticised because youth crime is not as widespread as New Labour government stressed it was and therefore, the justification for the ASBOs is not there (Goldson, 2010, p. 160). Another criticism against the ASBOs is the giving of additional powers to the police and that the ASBOs can be distributed unfairly (Ashworth et al, 1998 in Goldson, 2010, p. 19)

Concerns have also been raised about the disproportionate use of ASBOs against ethnic minorities (Mathews, Easton, and Briggs, 2007, p. 3). A study conducted by Young et al (2006) revealed that 37% of the ASBOs issued in the London Borough of Camden were given to African Caribbean males, although only 8% of the population of Camden are Afro Caribbean.

THE ABOLITION OF DOLI INCAPAX

Section 34 of the Crime and Disorder Act 1998 abolished the presumption of doli incapax, which was applied to children aged between 10 and 13 (Gillen, 2006, p. 131). Before this policy was implemented, children between 10 and 13 were presumed doli incapax, that is, ‘incapable of committing an evil act’ (Fitz-Gibbon, 2016, p. 398-399); or in other words, incapable of committing a crime (Bandalli, 1998, p. 114). Before its abolition, when proceeding against a child aged between 10 to 13, doli incapax required the prosecution to prove beyond reasonable doubt that the defendant understood that what they were doing was “‘seriously wrong’ as opposed to being “merely naughty of mischievous” (Fitz-Gibbon, 2016, p. 399). To prove the former, evidence offered by the prosecution could include what the child said or did before committing the act, and also information about the child’s home background (Bandalli, 1998, p. 114). Originally introduced to protect children from the full rigour of the law, doli incapax acted as a safeguard within criminal law for children above the age of criminal responsibility (i.e ten) and below the age of 14. Children in this age group were regarded as being unaware that the act they committed was wrong; and were unlikely to be able to understand the criminal justice process (Muncie, 1999, p. 153; Fitz-Gibbon, 2016, p. 399).

However, in 1998, in response to criticism by the House of Lords and New Labour, doli incapax was abolished in England and Wales by section 34 of the Crime and Disorder Act 1998 (Fitz-Gibbon, 2016, p. 399; Crofts, 2016, p. 441). The abolition followed on from the government White Paper, No More Excuses: A New Approach to Tackling Youth Crime in England and Wales, in which the government emphasised responsibility wherein children would be held responsible for their actions (Fitz-Gibbon, 2016, p. 399).

New Labour’s justification for the abolition was that doli incapax was illogical and unfair in practice. The assumption that a child under the age of 14 is incapable of differentiating between right and wrong is contrary to common sense (Bandalli, 1998, p. 155; Goldson, 2000, p. 85). According to the New Labour government, doli incapax was standing in the way of appropriately dealing with young people who have committed an offence (Crofts, 2016, p. 441).

IMPRISONMENT UNDER THE YOUTH JUSTICE SYSTEM

One impact of the New Labour’s policies is that they serve to incarcerate children and young people. The implication of the abolition of the presumption of doli incapax is that younger children are coming into the youth justice system (Gillen, 2006, p. 134). Between 1997 and 2007, the number of children aged between 10 to 14 years in custody increased by 295% (Lyon, no date). The impact of penalising the violation of ASBOs, was that it served to bring more people into the youth justice system who were detained in custody (Berman, 2009, p. 14). Figures demonstrate that between 1st June 2000 and 31st December 2007, the breach rate for juveniles was 64% (Berman, 2009, p. 14). Government statistics reveal that out of the youths who breached their ASBO, 1142 (44%) received a custodial sentence, with the average sentence being 6.5 months (Berman, 2009, p. 15). Furthermore, the YJB bring more children and young people into the youth justice system. These youths are detained in custody through the YJB’s priorities of punishment and responsibility. The YJB spends more on child imprisonment than on crime prevention strategies (Goldson, 2010, p. 170). These policies have brought children into the system, and made them the recipient of formal sanctions, for offences that would previously not have attracted such outcomes (Bateman, 2015, p. 69).

New Labour argued that the abolition of doli incapax would have a positive effect on youth crime as it would enable youths to confront their criminality at an early age would consequently lead to their reformation (Whitehead and Arthur, 2011, p. 474). By ‘confronting’ New Labour meant being brought into the youth justice system, and as this aspect materialised, figures demonstrate that between 1997 and 2007, the number of children aged between 10 to 14 years in custody increased by 295% (Lyon, no date).

A further impact of the policies is they serve to label youths (Goldson, 2010; Jones, 2001). Becker (1963) and Lemert (1967) showed that labeling has a detrimental effect on the person labelled (Goldson, 2000, pp. 162-163). Through early intervention by the YOTs, issuing ASBOs, and the incarceration of young people through measures by the YJB, young people are given the label of ‘deviant’ from an early age (Goldson, 2010, p. 163; Aizer and Doyle, 2015, p. 766). This criminogenic labeling of youths leads to them being viewed as ‘outsider’, wherein they become recipients of negative societal reactions (Goldson, 2010, p. 162). The societal reactions to their behavior leads to the deviant label being internalised by the young person. This leads to the deviant label becoming their ‘master status’ (i.e, the deviant identity becomes the primary identifying characteristic for the young person). Consequently, those labelled deviants proceed to organise their lives around the construction of their identity that conforms the label (Paternoster and Iovanni, 1989, p. 375).

The young person may begin to socialise with other deviants, withdraw from conventional pursuits, and commit further acts of deviance (Wiley, Slocum and Esbensen, 2013, p. 937). Therefore, scholars assert that incarceration lead to further deviance (Lambie and Ranall, 2013). It is also asserted that welfare-based early intervention serves to label the young person deviant (Paternoster and Iovanni, 1989; Goldson, 2010; McAra and Mcvitie, 2007; Bell et al, 1999). This can facilitate further deviant behavior, as opposed to preventing it, and results in more youths being recycled back into the youth justice system. Welfare-based early interventions can serve to discipline the child by leading them back into the criminal justice system (McAlister and Carr, 2014, p. 3).

Goldson (2010) argues that custodial sanctions are ineffective and damaging to youths. Studies have demonstrated that youth offenders are at a particularly high risk of victimisation whilst incarcerated in juvenile detention facilities (Beck, Harrison, and Guerino, 2010). The same holds true for incarceration in adult detention facilities (Tie and Waugh, 2001; Wolff, Shi, and Siegal, 2009). Victimisation may consist of verbal, physical, sexual and emotional abuse. Lambie and Randall (2013, p. 452) note that black and minority ethnic (BME) youths face more risk to victimisation whilst incarcerated. Furthermore, incarceration can have detrimental effects on young people’s mental health (Lambie and Randell, 2013, p. 453). Studies have demonstrated that a large proportion of children and young people who are incarcerated suffer from mental health problems such as depression, leading to suicidal thoughts and attempts at commission of suicide (Robertson et al, 2004; Lader, Singleton and Meltzer, 2003). This may be exacerbated by factors including exposure of youth offenders to isolation, bullying, and separation from family and friends, while they are incarcerated (Lambie and Randall, 2013, p. 453).

Moreover, the impacts of incarceration continue to impact children and young people once they have been released from prison (Lambie and Randell, 2013). The time spent in exclusion from society, paired with the deviant label they have acquired, results in the creation of a barrier to successful integration back into society (Lambie and Randall, 2013, p. 454). One of the consequences of the transition from incarceration back into normal life is an increased risk of recidividsm (Lambie and Randall, 2013, p. 454). McGuire and Priestly (1995, p. 10) assert that incarceration of youths and young people serves to worsen rates of recidivism. With evidence from the Ministry of Defense revealing that within the first year of being released from custody, 75% of young people and children offend, and within two years of being released from custody, 80% of children and young people offend, the claims of recidivism are well justified (Goldson, 2010, p. 166).

Some scholars champion minimum intervention and maximum diversion from the youth justice system (McAra and Mcvitie, 2007; Bell et al, 1999). Minimum intervention and diversion from the youth justice system is suggested to be the key to preventing early offending. Drawing upon their research into system contact involving 4300 children and young people, McAra and McVitie (2007) conclude that youths who not do face early intervention, and who receive a caution instead, are associated with “desistence from further offending” (pp. 337-338).

CONCLUSION

It can be seen that the policies discussed in this essay have served to ‘net widen’, that is, expand the penal capacity of the laws. Through the abolition of doli incapax rule, New Labour brought not only more children, but also younger children into the system. The younger children between ages 10 to 14 years was previously shielded under the doli incapax rule. The justifications that were offered by the government for the implementation of these stricter laws are not free from criticism as demonstrated in this essay. Literature and studies discussed in this essay have shown evidence that demonstrates that incarceration is harmful to youth offenders. New Labour’s justification for the implementation of the YJB was the alleged increase in the youth crime rates. However, the evidence base demonstrates that this was not the case; and that rather, youth crime figures were relatively stable. In fact, it could even be said that youth crime rates were on an overall downward trajectory. This suggests that the justification for the establishment of the YJB was faulty.

Bibliography

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