Some stark injustices in our youth justice system need fixing – and here’s how

In the first of a series of five addresses reflecting on his time as Children’s Commissioner, Judge Andrew Becroft identifies some stark injustices in our youth justice system and suggests ways to fix them.

“There are the seeds of genius in our youth justice system”, he says. “But it is not flawless. It is past time New Zealand took action on some ingrained injustices within it.”

We need a self-contained stand alone Youth Court for everyone under 18

The Youth Court, as it presently operates, remains less than self-contained and stand alone. Paradoxically, while some 17 year olds are dealt with in the Youth Court, the least and most serious cases concerning young people – contested infringement offences on the one hand and murder/manslaughter on the other – are still dealt with in the adult District or High Court.

“The Youth Court should be empowered to deal with all offending by all under 18-yearolds, and be responsible for all sentencing”, Commissioner Becroft argues. “This would promote a consistent and youth-specific approach that prioritises alternatives to charging in court and emphasises rehabilitation for people under 18, still leaving all sentencing options open.”

We need to increase the criminal age of responsibility

The minimum age of criminal responsibility also needs to change. “The present age is 10, which is unconscionably and unarguably too low and completely out of step with what we know of child development.”

It should be set at 12 and soon moved to 14 as soon as New Zealand’s care and protection system is transformed to become fit for purpose.

We need to abolish our four youth justice residences

“Segregating young people from the mainstream community and aggregating them together in large numbers is not a recipe for enduring rehabilitation. It simply increases the risk of violence, bullying and abuse”, the Commissioner says. We need different models.

Mahuru, a remand initiative developed by Ngā Puhi social services is one such example. It provides one-on-one care, using existing family homes and trained youth mentors, and is showing very promising results.

I want to see a plan to close these large, concrete residences as soon as possible.

We need more ‘By Māori for Māori’ initiatives

Given the distressing disproportionality of Māori caught up in the youth justice system, ‘By Māori for Māori’ approaches to supporting and encouraging new opportunities for rangatahi Māori must be prioritised and pursued. The Commissioner is clear that “it is imperative that these initiatives be innovative, properly resourced, and ensure Māori-led approaches in response to offending behaviour by rangatahi.”

We need to take some simple but significant practical steps immediately if not sooner

• We need to abolish the option of children being held in police cells on remand. It can all too quickly lead to mental and emotional harm and a real risk of suicide. It was introduced as a stop gap in 1989 but has never been removed. Now is the time.
• We need to discontinue the use of restraint chairs and spit hoods for children. Between 2015 and 2020, police strapped 38 young people into restraint chairs in police cells. The real problem is insufficient crisis mental health support for young people in this situation. The police should not feel they have to use outdated, old fashioned, almost draconian restraint chairs. The use of spit hoods is equally traumatic for children, unnecessary and unacceptable.
• We need to restrict the police practice of photographing young people suspected but not charged with any offence. The concern here is the ‘request’ for a close-range portrait photo where genuinely informed consent is not obtained, and where police powers may be misrepresented.
• We need to change the police vehicle pursuit policy. “I have changed my mind on this issue. As Principal Youth Court Judge, I had thought that the law should not be mocked by young drivers. But now, in view of the needless death and injury to children, young people and innocent victims, I think it is better for the police to take the heat out of the situations. Modern technology means that in most cases young reckless drivers will be apprehended the next day.”

“Progress on these issues would ensure a greater measure of justice in our youth justice system. Although, in the view of many academics, it is already world leading, it could yet contribute more genuine justice for more young people. And that must always be our goal.”