Scotland
Children who commit murder are, as a group, treated very differently from other young people in Scotland who offend, the majority of whom are dealt with by the children’s hearing system. Although it is not impossible that a child who has committed murder be dealt with through the hearing system, it is quite unlikely that this would occur. Indeed these children and young people are treated, and more specifically punished, in a way that is questionable as to whether it matches, or aids in the development of, their level of emotional or psychological maturity. The predominantly welfare approach to dealing with children who commit crimes, as is taken by the hearing system where the best interests of the child are of utmost importance, seems to be lacking when considering children who have committed murder. Dealing with children in a manner akin to a welfare approach could be argued to be essential, regardless of the severity of their crime. This form of approach has huge advantages when dealing with children who are not fully developed emotionally, psychologically, or in any other way, as it focuses on the best interests of the child as being paramount and considers the child’s needs as well as the crime committed. It takes into account a child’s background and potential reasons for committing a crime, before deciding upon disposal, something very difficult to do when a crime is tried in court and hence the sentence is prescribed by law.

At present the age of criminal responsibility in Scotland, that is the age under which a child cannot be prosecuted, and therefore is immune from a potentially punitive punishment directed by the court, is set at 8 [1]. In terms of disposal, children and young people aged 8 and over who are tried in court and convicted of murder in Scotland are sentenced under section 205 (2) of the Criminal Procedure (Scotland) Act 1995 which states that: “Where a person convicted of murder is under the age of 18 years he shall not be sentenced to imprisonment for life but to be detained without limit of time and shall be liable to be detained in such a place, and under such conditions, as the Secretary of State may direct.” [2]

It is clear from the legislation that the Scottish Minister has discretion about where, and for how long, a child is placed, and hence there exists the possibility that a child could be incarcerated for a long period of time and serve a sentence not dissimilar to an adult, certainly in terms of length of time, sentenced to mandatory life imprisonment for committing murder.

The crime of murder is viewed by our society as one of the most serious crimes as we consider the principle of sanctity of life to be absolute. The crime is deemed morally abhorrent and therefore society demands a severe punishment. A mandatory life sentence is given to adults convicted of murder as a retributive sentence, which is there to justify society’s need for vengeance and the state exacts this vengeance of behalf of society to prevent private retaliation. Such a sentence considers that a person deserves to be severely punished for their crime and also aims to vindicate the value of the victim.

Section 205 (2) of the Criminal Procedure (Scotland) Act 1995 is not a mandatory life sentence, however the way the punishment has been enacted in Scotland in recent years amounts to an indeterminate length of incarceration for children and young people convicted of murder.  In this way it could be suggested that children are not dealt with significantly differently from adults and are subject to an equally severe punishment. While it is true that murder committed by a child has the same outcome and effect as murder committed by an adult, namely the loss of life of the victim and immense suffering for the victim’s family, children are not the same as adults. Children are not transformed into adults by the seriousness of their crime and as a society, we cannot let the nature of the offence, no matter how grave, overshadow our knowledge of the intrinsic differences between adults and children, or let us forget that we are dealing with a child.

Canada
Canada has seen a huge amount of change in the past twenty years in terms of how its criminal justice system deals with young offenders. This has been especially pertinent to young people who commit murder in terms of both sentencing and transfer from youth legislation, courts and sentences to adult legislation, courts and sentences.

The Youth Criminal Justice Act (2003) is the current federal legislation concerning youth justice, which replaced the Young Offenders Act (1984) in April 2003. The changes to the youth justice system have made it a system with its main objectives as the protection of society. It insists on accountability and provides young offenders with consequences that are meaningful and proportionate to the seriousness of the offence. It seems that changes in legislation have meant that over the past 20 years sentences have become more punitive, and young offenders treated more like adults, especially those over 16, culminating in the current legislation on sentencing and transfer from the youth to the adult system as will be discussed in this section. 

The changes that have taken place in youth justice in Canada over the past few decades have been especially significant for children and young people convicted of murder, and therefore it is important to understand these changes and the rationale behind them before considering their effect on such youths.

In 1984, the Young Offenders Act was introduced to replace the Juvenile Delinquent Act, which had been in place since 1908 and was considered to be based on a child welfare oriented approach. Young people who had been convicted of murder, under the Juvenile Delinquent Act, were given indeterminate sentences to be served until rehabilitation was considered by the courts to have been achieved. Therefore, not only was there a huge amount of discretion on the part of the courts, but also the concept of indeterminate sentences appears to be in direct contradiction with that of child welfare. It is difficult to reconcile how sentencing a child or young person to a custodial sentence of indeterminate length could be viewed as being in their best interest, especially in terms of their emotional and social development. To have this sentence prescribed for the crime of murder, it does not follow that this could be a strictly welfare approach as the sentence has been decided before the young person’s needs, background and development have been considered.

Regardless of this point, The Young Offenders Act (1984) was viewed as a clear departure from any previous welfare approach, was firmly a criminal law, and had as its objectives public protection and accountability on the part of the young person for their criminal acts. However it was still markedly different from the adult law in that young people were not considered accountable in the same manner or to the same extent, and were also still considered to be capable of rehabilitation. Their age and developmental maturity was reflected in sentencing, and for most offences a custodial sentence would be no longer than 2 years.

Changes to the sentence for murder
There have been considerable changes in the custodial sentence given to young people in the past 20 years in Canada, which have ranged from between 3 years and life imprisonment.

Indeed until amendments in 1992 the maximum sentence permitted under the Young Offenders Act (1984) which could be given in a youth court for murder was 3 years imprisonment, whereas for an adult this would be a mandatory life sentence. At this time it was thought that 3 years was sufficient given “well-structured and individualised programming”. This highlights the apparent fact that the views of sentencers towards young offenders, who had committed even the most serious crimes, were markedly different to that of adults, and the inherent differences between children and adults were reflected in the legislation. The 1992 amendments raised the maximum sentence for a young person tried in a youth court from 3 to 5 years imprisonment, which continued to represent a huge difference between the sentence for children and that for adults.

The issue, and recent changes, surrounding the transfer of a young person from a youth court to an adult court will be discussed in the next section. Until amendments to the Young Offenders Act (1984) in 1992, the sentence for a youth charged with murder, and tried in an adult court, was the same as an adult, life imprisonment including no eligibility for parole for 25 years. Amendments made in 1992, however, produced a significant change to the period of time a young person had to serve before being allowed to apply for parole as this was reduced to 5 to 10 years, depending upon sentencing court, again marking the considerable difference in treatment between adults and young people.

The reasons for these changes in 1992 were firstly that a 3 year maximum sentence for murder was considered insufficient and was contributing to diminishing public confidence in the criminal justice system, and on the other hand the choice between 3 years for a youth sentence or life imprisonment for an adult sentence was too disparate. Before the changes mentioned above, it was possible that two youths of the same age could be given hugely different sentences depending on whether they were tried in an adult or youth court. The discretion of a judge in deciding upon whether a young person were suitable to be tried in an adult court or not could have the effect that a young person could spend either 3 years or 25 years in custody.

The next stage of changes occurred when in December 1995, the amendments of Bill C-37 came into force, and again there were substantial changes for young people convicted of murder. In terms of the youth system, the maximum sentence was raised from 5 to 10 years with a maximum of 6 years in custody and the other 4 under intense supervision in the community. However, the full sentence could be served in custody if there is considered to be a serious risk to public safety, again the youth court judge would make this decision at the appropriate time.

Currently, section 42 (2) of the Youth Criminal Justice Act (2003) deals with the sentencing of young people who have committed murder. The maximum sentence that can be passed on a young person, by a youth court, is 10 years, with a maximum of 6 years in custody followed by conditional intensive supervision in the community. Hence there has been no change here since the amendments to the Youth Offenders Act under Bill C-37 in 1995. Although the maximum sentence that can be given to a young person, tried and sentenced in a youth court, has increased from 3 to 10 years since 1984, the maximum time, generally, spent in custody has increased only from 3 to 6 years, although as previously stated, this can be extended to the full 10 years if public protection is considered to be an issue. This still represents a huge difference to the adult sentence which is life imprisonment with no parole for 25 years. Consequently it can be seen that even with the legislative changes of recent years regarding sentencing, children and young people who are sentenced through the youth courts in Canada are viewed as such, and not treated in a way, which could be considered not very different to adults.

Changes in the transfer from youth to adult court system
The issue of transfer from the youth to adult system is also one that has changed dramatically in the past 20 years. Since the implementation of the Young Offender Act (1984) until changes made in 1992, a youth court could transfer a case to an adult court if it was the opinion that in the interests of society and having regard to the needs of the young person. At this time the onus was on the court to justify why a case should be tried by an adult court and why a young person should be subject to the more severe sentence of an adult court.

The aforementioned amendments of Bill C-37 produced a significant change with relation to transfer from youth to adult courts. All 16 and 17 year olds would now be tried as adults unless the youth themselves could prove this is not appropriate, hence the onus was shifted from the court to the young person to prove that adult sentencing was or was not appropriate. The ultimate decision on transfer is taken by the youth court judge, and in order to be tried as a youth, the young person must prove that the youth court is appropriate to meet the objectives of both protection of the public and rehabilitation with the stronger emphasis seemingly to be on public protection, or the perception thereof.

With the amendments of Bill C-37, adult court sentences and parole eligibility remained as before, however distinctions were made for youths under and over 16, presumably as a result of more young people of 16 and 17 being tried in adult courts due to the changes in legislation concerning transfers. Under 16s given an adult sentence were eligible to apply for parole after serving 5-7 years, the period being determined by the sentencing judge, and over 16s had to serve the mandatory 10 years before being considered for release. Hence there was a dramatic reduction in the length of sentence a young person would have to serve before being eligible for parole if they were tried and sentenced as an adult, but also a clear distinction made in terms of the adult law between those under and over 16, presumably recognising the potential huge differences in terms of maturity and development.

Under Canadian legislation, a presumptive offence is a serious offence, including murder, committed or alleged to have been committed by a young person 14 years of age or older. The Youth Criminal Justice Act (2003) provides that once a court finds a young person guilty of a presumptive offence, the young person has the onus to show why an adult sentence should not be imposed. The age of presumption for an adult sentence is 14. The decision as to whether an adult or youth sentence is given happens at a hearing after a finding of guilt, which hears from both sides in the case and also the parents of the young person. Factors considered in the hearing are covered in Section 72 of the Youth Criminal Justice Act (2003) and are: the seriousness and circumstance of the offence, the age, maturity, character, background and previous criminal record of the young person and other factors the court deems relevant. [3]. Hence the young person has to show or provide evidence that their age, maturity, mitigating circumstances, lack of criminal record make it inappropriate for them to receive a, far harsher, adult sentence.

If an adult sentence is given, the young person can be detained in a variety of different establishments, depending upon their age. If a young person is under 18, they will be sent to a youth custody facility where they are completely separate from adults. There is a presumption that a young person would be moved to an adult facility after they reach the age of 20 unless a court decides otherwise.

The immense changes that have taken place in the youth criminal justice system in Canada in the past twenty years would appear, at first glance, to be enforcing more punitive laws and sentences on children and young people who commit murder. A clear example of this can be seen in the fact that the sentence for murder passed in a youth court has increased from 3 to 5 to 10 years within two decades.  However, if we look slightly beyond the twenty-year period to the legislation that was in place prior to 1984, when it was claimed to be a more welfare-based approach, indeterminate sentences were given to children and young people convicted of murder. Although sentence lengths have increased in the past twenty years, children convicted in the youth courts are now given determinate sentences, and those convicted in adult courts are also given minimum time frames for parole application. In this way it could be argued that the recent changes to legislation have produced a better approach than the previous one, or indeed the situation in Scotland under section 205 of the Criminal Justice (Scotland) Act 1995 where indeterminate sentences are given to children and young people, albeit with a tariff.  A determinate sentence must be viewed as being more in the interests of the young person, and not in conflict with the interests of society, as it gives them structure to their sentence, and a clear guide as to when it will end. Young people will have a better understanding of their punishment and also those working with young people will be better able to plan and structure their sentence within known time-frames.

The sentence passed for young people who are convicted of murder in youth courts is made up of both time in prison and also supervised time in the community after the prison sentence is served.  The purpose of a youth sentence, as described in the Youth Criminal Justice Act (2003), is two-fold as it concerns both holding the young person accountable for their actions by imposing just sanctions with meaningful consequences, and also helping them to rehabilitate and reintegrate into society. When considered in this way, it is clear that the aim of the youth sentence for murder is to fulfil both these purposes, but in two distinct ways with the time in incarceration dealing with accountability and sanctions and the time under supervision in the community dealing with reintegration and rehabilitation. The time of supervision in the community must be viewed as a positive measure as it is dealing with the long-term future of the young person and taking positive steps toward reintegration.  However it is questionable whether much of this time of work in the community with the young person would be taken up in trying to reverse some of the negative effects that incarceration has produced, as will be discussed in the following chapter.

New Zealand
The youth justice system in New Zealand is unique as it was the first system in the western world to write into legislation a clear move embracing a restorative justice approach, with its values of inclusion and reparation. The Children, Young Persons, and Their Families Act 1989 (CYP&F Act) provides an approach to young offenders that recognises the value, and seeks the participation, of all involved in the offending behaviour, including the young person, their family, community and the victim.  The focus is on repairing harm and reintegrating young offenders back into their communities and society. 

However, in dealing children and young people who have committed murder, there is little evidence of this inclusive, unique approach. There does not appear to be any justification for this within the legislation or clear reasons why such an approach could not be applied to this group of young offenders.

Children under the age of 10 cannot be charged with a criminal offence in New Zealand, and a child aged between 10 and 13 cannot be charged with an offence other than murder or manslaughter. Hence the legislation makes it clear that a young child can be charged with only the most grave of crimes, presumably to reflect the severity of killing.

Children and young people charged with murder
The procedure for dealing with a young person who has committed murder or manslaughter in New Zealand is that firstly the youth court will decide if there is enough evidence to proceed, hence the preliminary hearing is held here, and then the case is transferred to the (adult) high court to be tried by a judge and jury. The child’s age will be considered as a mitigating factor, but as the trial is conducted in an adult court, a similar sentence to that which an adult would receive is given.

The mandatory punishment for murder in New Zealand is life, and a life sentence is an indeterminate sentence with a minimum of 10 years to be served before the prisoner is eligible for parole.  However, section 102 (1) of the Sentencing Act 2002 states that “an offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.” It could be argued that sentencing a child or young person, possibly as young as ten years old, to an indeterminate life sentence, with a minimum prison term of ten years, is manifestly unjust. A child of 10 is not the same as an adult; they do not have the same emotional, psychological or developmental maturity. They are in no way fully developed, and hence it is inappropriate to sentence them in the same way, certainly in terms of duration of sentence, as an adult convicted of the same offence.

A child sentenced for murder in New Zealand would not be detained in an adult prison but in a small unit, with six beds, run by the Department of Child, Youth and Family Services. However, unlike in Scotland where a child is moved at the age of 18 from secure accommodation to a young offender institute, it is possible for a child convicted of murder in New Zealand to serve the whole sentence in the small unit. This has huge advantages as the young person is then kept completely out of the prison system, and the influences and effects this may have.

As previously mentioned, the New Zealand criminal justice system is unique in the way it deals with young offenders, other than those charged with murder or manslaughter, and it is this which will now be briefly examined before considering if this reparative system could be used with children and young people convicted of murder.

Other offences and Family Group Conferences
The Children, Young People and their Families Act (1989) (CYP&F Act) attempts to ensure that when children and young people offend they are both held accountable, and encouraged to accept responsibility, for their behaviour and also dealt with in a way that acknowledges their needs and will give them the opportunity to develop responsible, beneficial and socially acceptable behaviours and lifestyles. The child’s best interests and welfare are paramount. This is done primarily by the use of Family Group Conferences, which are used to decide, and implement, a suitable disposal or means of recompense for the young offender.

The key principles, as set out in the CYP&F Act (1989), in dealing with young offenders are as follows: (1) alternatives to criminal proceedings are used wherever possible, indeed at present up to 84% of youth offending is dealt with out of court; (2) measures to deal with offending aim to strengthen family and kinship ties and foster their ability to deal with offending by their young people; (3) the young person’s age and youth should be recognised as a mitigating factor; (4) sanctions should be the least restrictive possible and due regard should be given to the interests of the victim. Hence, it can be seen how the Act seeks to hold young offenders accountable for their actions, but also deal with them in a way that acknowledges their needs and contributed positively to their development. By diverting them from criminal procedures, the risk of developing a criminal identity or becoming part of a criminal subculture by being forced into the company of other young offenders is greatly reduced. Family and community are given responsibility for their youth, and are involved throughout the process as will be discussed shortly.

Prior to the introduction of the CYP&F Act in 1989 the criminal justice system dealing with young people in New Zealand relied heavily on punishment and incarceration, and was considered to be having very negative effects. For example, the high levels of incarceration were leading to large problems in terms of re-integration into society of young people leaving custody. A further negative observation about the previous system was that there was considered to be an over emphasis on the views and opinions of professionals working with young people. It was noted that young people’s lives and futures were being taken control of by outsiders who knew very little about them and hence the best ways to deal with them in order to make them take responsibility for their actions but also to prevent reoffending. 

The CYP&F Act (1989), on the other hand, aims for the ultimate transfer of power and responsibility when dealing with young offenders away from the state and to the family and community where it is assumed young people will learn the consequences of their behaviour first-hand, be held accountable for their actions and through schemes of reparation and rehabilitation go on to become positive contributors to their community and indeed society. When offending is dealt with in this way, young people are made face the consequences of their actions. They see what damage their crime has caused first-hand and must face their victims or victim’s families. In this way the young person is made take responsibility and it is hoped they will learn far more from this than from incarceration miles away from their community. It must be noted, however, that such community-based solutions are easier to arrive at and to implement in small populations where there is recognised community structures and such relationships are strong.

Family Group Conferences enable offenders, their families and supporters, and if possible victims to come to some agreement which offers reparation and assists in the offender’s reintegration. The young person must be held accountable in a meaningful way that addresses the needs of the victim and also assists in the young person’s development to avoid reoffending.

Family Group Conferences do not aim to produce consistent outcomes. The objective is for the families and communities to decide what the response to the offence will be. In terms of Family Group Conferences and ‘European’ New Zealand young people, this allows a greater social circle to be involved, for example close family friends, church members. This can aid with acceptance of responsibility of society for its young people. When dealing with offending by young people, and even serious offending, the community in which the young person lives is always affected. Hence if the community can take some responsibility for the young person, this can only aid the reintegration and rehabilitation of the youth.

It has been suggested that victims sometimes see Family Group Conferences as occasions where they are intimidated by the accused, or their families, into accepting an outcome and punishment that they do not agree with. It has also been suggested that young people see Family Group Conferences simply as a process they have to endure and do not give it any credence or respect. There is little evidence available to support this and is perhaps something that requires further research.

In 2002, the Ministry of Justice in New Zealand produced a paper which stated that custodial sentences alone are ineffective in reducing re-offending and that holistic programmes that address risk factors are essential in dealing with serious young offenders. However, the situation remains the same that a young person convicted of murder or manslaughter is treated in a completely contradictory way to all other young offenders. Murder is a serious, grave crime, and must be treated as such; however punishing young children as if they were adults cannot be justified as being in anyone’s best interests. There appear to be no clear reasons why children and young people convicted of murder could not be subject to the same treatment, and Family Group Conferences as other youths. If communities are able to take responsibility for, and be keen to aid in the rehabilitation and reintegration of some young offenders, why not all?