Tuesday, 25 May 2010

Abusive Law?

It was chilling to read this week the accounts of the trial of the two 10 year-old boys convicted of attempted rape. The comment in the papers generally, and quite rightly, condemns an inappropriate use of the criminal law in this case. But it fails to lay the blame where it ought to be - at the door of the last Government.

It is easy to forget that it was New Labour that abolished the defence of doli incapax (s 34 of Crime and Disorder Act 1998). This means that the prosecution no longer needs to show that a child under 14 who is accused of a criminal offence knew that they were doing something which was wrong. In terms of culpability they are now treated as if they are fully mature. That alone makes our youth justice system among the most harsh and inhumane in the developed world.

But, to compound matters, the Sexual Offences Act 2003 makes sexual intercourse with any-one under 13 rape, even where it is 'consensual' and between two people of similar age. Despite assurances given by ministers to Parliament when the Act was debated that it would be not used to prosecute sexual experimentation by pre-teens, this is exactly how it is now being used.

The result of trying to look tough on youth justice is that two young boys and one young girl have been traumatised by unnecessary and damaging court proceedings.