Drugs and the young: some legal issues
Setting the theme
Laws on drug abuse by young people in certain countries
Who is a child? Who is a young person?
Who is responsible?
Legal issues relating to judicial decision-making in respect of young drug addicts
International initiative in the prevention of juvenile drug culture
Author: S. K. CHATTERJEE
Pages: 157 to 168
Creation Date: 1985/01/01
Drug-addiction among and drug-related offences committed by young people are to be condemned, but the community at large, including families, parents and guardians, must share the responsibility for the actions of the young. The age of criminal responsibility is still an unresolved question, and as a consequence no uniform application of law and treatment may be prescribed. International concern for the drug-related problems of young people has been consistent; it is for the States to give high priority to the solution of these problems and to enforce their drug-control legislation. United Nations guidelines can help in developing appropriate national legislation.
Some type of law is necessary for controlling drug-related offences committed by young people. 1 Before determining the type of law to be applied, however, it would be interesting to identify some of the factors that contribute to the commission of drug-related crimes by the young. The primary factors include : the availability of drugs of abuse ; the drug subculture among young people ; the lack of parental care ; broken homes ; and the lack of appropriate and effective legislation.
It would not be appropriate to go into details about the causes of drug related crimes in this article; however, the connection between the causes of such crimes and the attendant legal issues is of significant importance.
The increasing quantities of illicit drugs seized suggest that such drugs are easily available [ 1] . It would be folly to disregard the fact that the demand for drugs is caused to a significant degree by their abundant supply. The demand for drugs is also caused by other factors, such as : psychological deficiencies in people [ 2] - [ 4] ; social conditions conducive to drug abuse, including conditions in broken homes and the non-fulfilment of ambitions [ 5] , [ 6] ; social pressures giving rise to a feeling of inadequacy and inability to compete with peers [ 7] ; the drug sub-culture of young people 8- 10 ; and loss of faith in existing values [ 7] , [ 11] - [ 13] . The adoption of lenient laws for certain drugs and the ease of international travel may also contribute to the incidence of drug abuse among young people.
1For the purpose of this article, "children" are less than 14 years of age and "young people" are between 14 and 17 years of age.
There is a lack of appropriate and effective legislation, which is partly due to the failure of treatment specialists to find effective methods of treating and curing drug addicts and partly due to a tendency by policy-makers to ignore the magnitude of the problem and to accord it low priority. However, the assessment of drug abuse is difficult because of: the stigma attached to the problem; difficulties in defining concepts and providing comparable data; difficulties in monitoring illegal behaviour; and difficulties in identifying persons who have drug-related problems [ 14] - [ 16] . These factors have a direct bearing upon the effectiveness of legislation. In addition, it should be noted that no matter how effective legislation might be, an efficient and well structured enforcement agency is necessary to implement it.
It is in this perspective that the legal issues relating to drug abuse among young people should be considered. In other words, the primary aim of legislation should be to make the adult population aware of the problems and, when necessary, hold them responsible for the use of drugs by children and young people.
Certain important legal questions relating to drug abuse among young people deserve particular attention:
What is the definition of a young person or a child?
Should parents or guardian be held responsible for acts of their children?
Should a young person have the right to choose the method of treatment for drug abuse or should his or her parents or guardian choose it?
Should records of drug abuse be made available to anyone other than the young person s parents or guardian and medical advisers?
If a young drug abuser is motivated by criminal intent, should he or she be punished according to the usual process of law?
Is there any difference between a young abuser and a mature abuser from the legal point of view?
What should the sentencing policy be for traffickers and traders who persuade young people to abuse drugs?
To what extent is the voluntary participation of young people in drug abuse punishable by law?
In many countries there are no legal provisions to protect children and young people from drug abuse. The following is a brief account of the state of the law relating to young people and drug abuse in certain countries.
In Australia, the control of drugs is primarily a matter for state law [ 17] . However, legislation in each state prohibits the sale to and consumption of drugs by young people. No legislation exists to give young addicts a legal right to treatment and rehabilitation.
In Colombia, although it is prohibited by law to supply alcoholic beverages to persons under l 8 years of age [ 18] , a young person found to be a drug addict would not necessarily be considered to have committed a crime [ 19] .
Under the Cuban Penal Code it is an illegal act to induce a person under 16 years of age to take toxic or hallucinogenic drugs. It is also illegal in Cuba for guardians, either through negligence or carelessness, to allow minors under their care to use toxic or hallucinogenic drugs of any kind [ 20] .
Greek legislation provides for punishment of those who supply drugs to places where young persons live or work in groups [ 21] .
The Dangerous Drugs Act in Kenya, which is the principal act regulating the import, export, manufacture, sale and use of opium and other dangerous drugs, does not distinguish between adults and children ; consequently, children would not receive adequate protection against drug abuse.
By virtue of the Misuse of Drugs Act 1971 (section 23), police officers in England can stop and search anyone in the street if they have reasonable grounds to suspect that person of being in possession of drugs obtained from illegal sources.
There are many definitions of a child. The definitions of children and young people often vary according to the purposes for which the definition is sought, e. g. for the purpose of determining criminal responsibility. The age of criminal responsibility varies from 7 to 15 years. In Australia, 2 the United Kingdom and the United States of America, for example, there exists a rebuttable presumption of doli incapax for children between 7 and 12 or 14 years of age. By contrast, in Colombia, minors under the age of 16 are subject to special treatment, as the age of responsibility has been reduced to a maximum of 16 years [ 22] - [ 24] . In Czechoslovakia, the age of criminal responsibility is 15 [ 25] . Under Egyptian law liability for deviancy commences at 18 years of age [ 26] . The penal law of Israel has set the age of 13 as the age of criminal responsibility [ 27] . Section 14, paragraph 1 of the Penal Code of Kenya provides that a person under the age of 8 years is not criminally responsible for any act or omission ; according to section 14, paragraph 2 of the Penal Code, a person under the age of 12 years is not criminally responsible for an act or omission unless it is established that at the time of committing the act or making the omission he or she had the capacity to know that it was wrong. The age of criminal responsibility is 10 years in the United Kingdom; 3 however, between the ages of 10 and 14 young persons may be convicted only if the prosecution Can prove that they were aware that their actions were wrong [ 28] . Depending upon whether a state follows the common law tradition or statute law, the age of criminal responsibility in the United States may be 7 or 10 years. Children below the age of criminal responsibility may be brought before a juvenile court as neglected, abused, abandoned or dependent children.
There seem to be as many definitions of a "child" or a "young person" as there are legal systems. In the final analysis however, a child or a young person is anyone who is not an adult.
Although it is realized that a child should be granted different rights at different ages, depending to a large extent on the social attitude towards children and young people and the availability of appropriate legal and enforcement machinery, it is not clear why there cannot be a uniform age of criminal responsibility for a child. Medical experts have not yet given law makers a clear-cut and uniform answer to the question of when the doli incapax status of a child should terminate. It is not clear why the age of criminal responsibility cannot be uniform and why it cannot be fixed at a low age rather than at a high age. The argument that the capacity of a child to understand the fact that an act is forbidden varies from country to country is obviously illogical. If a child or young person understands that an act is forbidden but commits it none the less, that child or young person should not enjoy the benefit of doli incapax. In that event, under usual practice, the child or the young person is made a subject of a régime of treatment through a court procedure. 4 This is where the irony of the practice lies. If it is believed that a person by virtue of being young is incapable of committing crimes, then he or she should not be brought before courts ( [ 29] ; [ 30] , pp. 63 - 65); but according to this practice a criminal breach of responsibility on the part of a child, though not accompanied by mens rea, will cause the child to be treated as an .adult in many respects of criminal sanctions. If a child or a young person becomes criminally responsible, then an attempt should be made to determine the reasons for the criminal behaviour.
2 In Australia, the age of criminal responsibility varies from one state to another: in the Australian Capital Territory, 8 years (Child Welfare Ordinance 1957, S. 108); in New South Wales, 10 years (Child Welfare Act 1939, S. 126): in South Australia, 10 years (Children's Protection and Young Offenders Act 1979, S. 66): in Queensland, 10 years (Criminal Code Act 1899, S. 29); in Western Australia, 7 years (Criminal Code Compilation Act 1913, S. 29): and in Tasmania, 7 years (Criminal Code Act 1924, S. 18).
3 Children and Young Persons Act 1933, S. 50: the Children and Young Persons Act 1969 intended to raise the age of criminal responsibility to 14 except for a charge of homicide. This provision of the Act has not come into force yet.
If children or young people are not to be held directly responsible for becoming victims of drugs, then someone else must share the responsibility. Dependence on drugs is usually the result of a long and continuing process. Psychological or physiological needs for and hence dependence on drugs may in many countries be created by self-indulgence. The central point is whether self-indulgence, as seen in drug abuse, may be directly or indirectly encouraged by the environment, such as the family and the school. What is essentially important is whether through training and discipline a child or a young person is being made aware of the ill effects of drug addiction. Even occasional drug consumption by parents and teachers can encourage young people to Consume drugs. If drug-taking by a young person is directly related to drug-taking by parents or teachers then, legally speaking, the young person's parents and teachers are responsible for the drug habit of the young person. .
In the United Kingdom, section 26 5 of the Criminal Justice Act 1982 requires the parents or guardian of a delinquent child to pay any fines, compensation or costs awarded against the child, unless it would be unreasonable to do so. The following are the most relevant sections :
4Such practice is generally followed in, for example, New Zealand, the United Kingdom and the United States. In Australia there are no separate and lesser penalties for children who offend.
5This section has replaced section 55 of the Children and Young Persons Act 1933.
"Sanctions against parents and guardians . . .
"55. (1) Where -
" (a)a child or young person is convicted or found guilty of any offence for the commission of which a fine or costs may be imposed or a compensation order may be made under section 35 of the Powers of Criminal Courts Act 1973 ; and
" (b)the court is of opinion that the case would best be met by the imposition of a fine or costs or the making of such an order, whether with or without any other punishment,
"it shall be the duty of the court to order that the fine, compensation or costs awarded be paid by the parent or guardian of the child or young person instead of by the child or young person himself, unless the court is satisfied
"(i) that the parent or guardian cannot be found; or
"(2) An order under this section may be made against a parent or guardian who, having been required to attend, has failed to do so, but, save as aforesaid, no such order shall be made without giving the parent or guardian an opportunity of being heard.
"(ii) that it would be unreasonable to make an order for payment, having regard to the circumstances of the case.
"(3) A parent or guardian may appeal to the Crown Court against an order under this section made by a magistrates court.
"(4) A parent or guardian may appeal to the Court of Appeal against an order made under this section by the Crown Court, as if he had been convicted on indictment and the order were a sentence passed on his conviction.
"(6) Where in any care proceedings the court finds the offence condition satisfied with respect to the relevant infant, then, whether or not the court makes an order under section 1 of this Act
" (a)section 35 of the Powers of Criminal Courts Act 1973 (which relates to compensation for personal injury and loss of or damage to property) shall apply as if the finding were a finding of guilty of the offence ; and
" (b)it shall be the duty of the court, subject to sub-sections (6A) and (6B) of this section, to order that any sum awarded by virtue of this section be paid by the relevant infant's parent or guardian instead of by the relevant infant, unless the court is satisfied
"(i) that the parent or guardian cannot be found ; or
"(ii) that it would be unreasonable to make an order for payment, having regard to the circumstances of the case.
"(6A) An order shall not be made in pursuance of the preceding subsection unless the parent or guardian has been given an opportunity of being heard or has been required to attend the proceedings and failed to do so.
"(6B) Where the finding that the offence Condition is satisfied is made in pursuance of subsection (5) of this section, the powers conferred by subsection (6) of this section shall be exercisable by the court to which the case is remitted instead of by the court which made the finding.".
"28. In section 2 (13) of the Children and Young Persons Act 1969 (by virtue of which the maximum amount for which the parent or guardian of a child or a young person can be required by an order under section 1 of that Act to enter into a recognisance to take proper care of and exercise proper control over him is ?200), for ??200? there shall be substituted ??500?."
Section 26 is based on the presumption that parents may contribute to the commission of the offence by neglecting to exercise due care or control over their children. To a certain extent, it is the duty of the authorities to oblige parents to maintain acceptable standards of child care. This section does not disregard the fact that some parents live under conditions that are not conducive to good child-rearing practices ( [ 30] , p. l). However, an important point the legislators have overlooked is that "although it is true that the homes of many delinquents lack discipline, many of the parents concerned lack any standard to teach. If parents do not subscribe to socially acceptable moral values themselves, there seems little to be gained in insisting that they exercise more authority over their children" [ 31] . It should be mentioned that parental responsibility cannot be exercised appropriately without sufficient knowledge of such issues as drug abuse, delinquency and related matters.
The term "parental care and responsibility" is often used in the abstract. It generally includes responsibility and care in relation to such matters as health, education and well-being of the child [ 32] . Most legal systems have failed to spell out the precise scope of the term.
The age of criminal responsibility is not based on legal considerations. Expert medical advice would probably offer an appropriate guideline as to how to determine the age of criminal responsibility. The variations in state practice show that the range of the age of criminal responsibility is too wide. If the age of criminal responsibility is set at a high level, this could mean that young persons who have already manifested signs of criminal intent were being protected by the law. On the other hand, although criminal responsibility is based on extra-legal considerations, young persons are made subject to a régime of legally recognized sanctions. Therefore, attempts should be made to establish the age of criminal responsibility on a scientific basis.
It could also be argued that as drug addicts behave irresponsibly only towards themselves their behaviour is not criminal. Considered from this point of view, criminal responsibility is not extremely relevant, particularly in the case of drug addicts of a young age. On the other hand, the question is whether a young person who knows that the use of drugs obtained illicitly is illegal and that illicit trafficking is a crime but still performs these acts should be treated like an adult. The general view is that instead of punishing a young person who has been involved in a drug offence, e.g. possession of unauthorized drugs obtained from illegal sources for personal consumption, according to the law in the traditional sense, attempts should be made to facilitate his or her treatment and rehabilitation. This argument finds further support in the argument that such young people have only harmed themselves, and there is therefore no need to protect society from them. But the process of rehabilitation also includes an element of punishment.
Packer pointed out that :
"Given the lack of any solid empirical basis for supposing that we know how to reform, given the fact that measures of reform may entail just as severe restrictions on personal liberty as measures employed for deterrent or even retributive ends, the danger is equally present that in the name of humanitarian goals we will commit ourselves to measures that are in large part, albeit covertly, inspired by the demands of vengeance. And there is the additional danger that, because such measures are being taken in the name of humanity, we will be less quick to recognize and defend against encroachments on libertarian values"
[ 33] .
Therefore a magistrate or a judge of a juvenile court may prescribe a régime or treatment for the reform of a young person without being aware of how this may be carried out. Indeed, such régimes do not claim a high percentage of success.
It is the general belief that punishment may have three different kinds of effect : general deterrence, education and moral influence. Zimring and Hawkins pointed out three different aspects of the educative role of punishment [ 34, 35] :
" (a)The association of forbidden behaviour and bad con sequences may lead individuals to view the behaviour itself as bad ;
" (b)Punishment by a legal system will communicate to the individual that the legal system views the threatened behaviour as wrong and this information will also affect the moral attitudes of the individual;
" (c)Threat and punishment may aid moral education by serving as an attention-getting or attention-focusing mechanism."
But, in spite of the deterrent effect of education and moral influence, the primary emphasis remains on a belief in punishment. A law that prescribes punishment may not have the support of society, and yet punishment according to that law must be accepted. Andenaes rightly pointed out that :
" . . . the law as an institution itself to some extent creates conformity. But more important that this formal respect for the law is respect for the values which the law seeks to protect. It may be said that from law and legal machinery there emanates a flow of propaganda which favours such respect" [ 36] .
This poses another dilemma : should a person, young or adult, be punished by law for "propaganda value", especially when the deterrent or reformative effect of the punishment has not been established? This is not to suggest that an offender should not be punished ; however, offenders are punished for the breach of the law despite the fact that the precise effect of punishment has remained uncertain. The effect that punishment may have on young people of different age groups who have committed the same similar offences is also uncertain.
International initiatives to protect the rights of the child date from 1919 when the International Labour Organisation (ILO) adopted a number of conventions with a view to abolishing child labour. The Geneva Declaration of the Rights of the Child of 1924 and the Universal Declaration of Human Rights of 1948 relate to children either directly or indirectly. In 1959, the Declaration of the Rights of the Child was passed (General Assembly resolution 1 386 (XIV)). Article 25, paragraph 2 of the Universal Declaration of Human Rights provides that "motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection." Paragraph 1 of the same article provides that everyone has the right to "medical care and necessary social services". There would be no point in discussing the legally binding effect of such declarations in the present article. Nevertheless, these rights are important for the proper development of a child or a young person. But, ifa child or a young person has been deprived of the care of parents and, as a consequence, has developed a drug-habit, should the parents be allowed to exercise their rights to Choose the mode of treatment of their child?
Article 38, paragraph 1, of the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961 provides that :
"1. The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification treatment, education, after-care, rehabilitation and social integration of the persons involved and shall co-ordinate their efforts to these ends" [ 37] .
Similar provisions aimed at the prevention of abuse of psychotropic substances and the treatment of persons dependent on these substances may be found in article 20, paragraph 1, of the 1971 Convention on Psychotropic Substances [ 38] .
The last two United Nations congresses on the prevention of crime and the treatment of offenders paid attention to the problems relating to youth and drugs and juvenile delinquencies. In relation to juvenile delinquency, the Sixth Congress pointed out, inter alia, that:
"The role of the family in the prevention of juvenile delinquency and in the education of youth and the treatment of delinquents should be supported by the State and the community at large, and should be balanced with the external intervention by the State and other external institutional interventions ( [ 39] , chap. I, sect. C, sub-sect. 4 (4)). "Juveniles in trouble with the law should be provided with the opportunity to participate actively and constructively in programmes designed to provide them with the skills and experience that will bring value and self-esteem to their lives" ( [ 39] , chap. I, sect. C, subsect. 4 (7)).
The United Nations initiatives in drawing the attention of the international community to the problems relating to youth and drugs have been consistent and timely. But it is up to States to take the necessary action in this regard. The Sixth United Nations Congress indicated that:
" . . . success in crime prevention can be achieved only through a specific analysis of crime trends inherent in a given country and region, as well as through the use of the means and methods of crime prevention which correspond to the country's historical, socio-economic and cultural peculiarities" ( [ 39] , chap. I, sect. B, resolution 1).
It should be emphasized that problems concerning children and young people might arise because young people are not given opportunities to participate actively in the community and are therefore deprived of the right to enjoy and attain a full life.
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