“where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction.”
I am concerned by the issue of the date of conviction. I shall leave aside the question of age disputes, which we have addressed previously in the Committee. There is a general rule of the criminal justice system that the age of the offender on the date that the offence was committed is used as a guideline for how they should be sentenced.
It has been a long time since I practised criminal law—nearly 20 years—but my understanding then was that if somebody committed an offence as a juvenile but was convicted as an adult, they could not receive a suspended sentence, because in those days suspended sentences were not given to juveniles. They could receive only the penalties that were available according to their age at the date of the offence. We now have offences, such as possession of a handgun, that incur a minimum sentence of five years’ imprisonment if the offender was over 18 at the time of the offence. If the offender was between the ages of 16 and 18, they could receive only a three-year term of detention. Clearly, the principle is that the age at the date of theoffence governs the sentence that somebody should receive.
Under articles 37 and 40 of the UN convention on the rights of the child, which deal specifically with the rights of children who commit crimes, every person under the age of 18 at the time of the alleged commission of an offence must be treated under the rules of juvenile justice. It may be that the provisions in the Bill are not seen as part of sentencing procedure and that deportation is seen as a separate issue, but I have concerns in that respect.
On a practical level, my main concern relates to what happens as somebody goes through the criminal justice system. There could be a real risk of miscarriage of justice. If, for example, somebody commits an offence when they are a few months under the age of 18, there will be considerable pressure on them to plead guilty, because if they are convicted before their 18th birthday, they cannot be deported. If they choose to fight the case—they might be innocent and want the chance to prove their innocence in court—and are convicted after a trial after reaching the age of 18, they will be deported.
The other side of the coin is that if the police and prosecution service are considering bringing charges against somebody who is a few months short of their 18th birthday, they might think that if they charge them immediately and bring them before the court, they will plead guilty, but if they wait until after their birthday, they can be deported. An incentive to delay could therefore be built into the system.