Tagging and curfew orders breach children’s rights
01 August 2003
Electronic monitoring (EM) is a measure that was introduced for the first time in the USA in 1984. Following trials there the UK governent adopted tagging in July 1995 when 83 offenders were tagged by courts as part of a curfew order in three areas - Greater Manchester, Norfolk and Berkshire. Conservative government Home Office Minister, Lady Blatch, (see New Research Published into Electronic tagging, Home Office 403/96) said that:
tagging represents a useful additional sentence for courts. It punishes criminals by restricting their liberty and is a cost-effective alternative to imprisonment
This then encouraged subsequent law-making policy to adopt EM for juvenile offenders already subjected to a curfew order. As a consequence, between March 1998 and February 2000, the pilot scheme was extended to 10-15 year-old young offenders under an extension of powers from Section 43 of the Crime (Sentences) Act 1997. Since 2001, the year the measure was handed to courts, 4,000 young people have been tagged in England and Wales.
The Labour government’s policy of fighting youth crime through tagging children ignores doubts among lawyers and academics. There are two main areas of concern. Firstly, the debatable legitimacy of the curfew order itself which restricts childrens' civil liberties, such as the freedom of movement and the freedom of association as well as the basic principles of criminal law, that dictate that nobody can be accused of an act that is not recognised as a crime and that an individual is innocent until proven guilty. Secondly, a nationwide application of EM conflicts with the United Nations Convention on the Rights of the Child.
The curfew order is essentially a preventive measure established under section 14 of the Crime and Disorder Act 1998 which prevents all children under the age of 10, who live in a specific area with a high risk of criminality, from meeting in particular public places at certain times (9pm to 6am) unless accompanied by a parent or a responsible adult. The rationale of this order is that unsupervised children assembled in a public place can cause alarm and misery to local communities and can encourage one another into antisocial or criminal behaviour. [1]
The legitimacy of this measure is essentially focused on the legality of a punitive order which preventively labels children who are “potentially” at risk of committing offences on the basis that they live in a deprived area. Moreover, the fact that all minors under the age of 10 can be subject to a curfew reflects the lack of protection for children in the UK legislation. In fact, minors are treated exactly as adults with a full capacity of understanding and will.
The next important issue related to the electronically monitored curfew is the infringement of the fundamental rights and freedoms established by the United Nations Convention on the Rights of the Child. The practice is contrary to the following articles:
* Art. 2 principle of non discrimination
* Art. 3 best interest of the children
* Art. 8 right of private life and family
According to Article 2 "non-discrimination" means that no child should be injured, privileged or punished by, or deprived of, any right on the grounds of his/her race, colour or gender; on the basis of his/her language, religion, or national, social or ethnic origin; on the grounds of any political or other opinion; on the basis of caste, property or birth status; or on the basis of a disability. Evidence suggests [2] that curfew measures have been often used in a discriminatory way to target young people from minority groups. Poverty, cultural insensitivity and institutional racism are the main reasons for this discriminatory treatment of black and migrant young people.
Article 3 states that the best interests of the child shall be the primary consideration in all actions undertaken by the State in a public or private welfare institution, court of law,