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Memorandum submitted by the Standing Committee for Youth Justice (CJ&I 5)
CRIMINAL JUSTICE AND IMMIGRATION BILL
INTRODUCTION
1. The Standing Committee for Youth Justice (SCYJ) is a membership body that provides a forum for organisations, primarily in the non-statutory sector, working to promote the welfare of children who become engaged in the youth justice system. We advocate a child-focussed youth justice system that promotes the integration of such children into society and thus serves the best interests of the children themselves and the community at large.
2. The SCYJ welcomes the inclusion of youth justice provisions in the Criminal Justice and Immigration Bill which seek to enact a number of the legislative proposals originally set out by the Government following its consultation on Youth Justice - The Next Steps, a companion document to the Every Child Matters green paper published by the Department for Education and Skills in 2003.
3. Our aspiration for this Bill is that it provides not merely a vehicle for further piecemeal reform of the Youth Justice System but rather an opportunity to address the fundamental flaws that it believes exist as the result of three main failings: - A poor, and worsening record of compliance with legal obligations in relation to children's human rights - The youth justice system is insufficiently distinct from that for adults and so does not focus adequately on children's particular characteristics, needs and interests. - Legislation and policy for children who offend is not congruent with that which deals with children and families more broadly, in respect of welfare, safeguarding, education and health.
4. On 4th Oct 2002, the UN Committee on the Rights of the Child published its response to the UK government's report on the implementation of the United Nations Convention on the Rights of the Child (UNCRC). Some of the most systematic criticism in the report was directed at the UK's administration of juvenile justice. In particular, the Committee recommended, 'that the State party establish throughout the State the best interests of the child as a paramount consideration in all legislation and policy affecting children, notably within the juvenile justice system' (paragraphs 25/6).The UN Committee on the Rights of the Child will next examine the UK Government in 2008 and it is imperative to seize this opportunity to address the Committee's previous criticisms. Children who are in trouble with the law are children first; they must be treated as such and afforded the same rights and protection as any other child.
YOUTH REHABILITATION ORDER
5. Clauses 1 - 8 and Schedules 1- 4 provide for the Youth Rehabilitation Order (YRO) which will provide a generic community sentence for young offenders with a menu of options to meet the needs of each young person. While the SCYJ welcomes in principle the idea of a generic community sentence with a choice of requirements, for children and young people, we have a number of serious concerns about the provisions as drafted in the Bill.
6. Proportionality: With young people involved in offending, not yet fully mature and often emotionally unstable, it is particularly important to set realistic requirements - which take effort to meet but are not out of reach. As a community sentence the YRO is subject to sections 148 and 150 of the Criminal Justice Act 2003, which place restrictions on the use of community sentences including a condition that requirements are 'suitable for the offender'. However we fear that this alone will be insufficient to prevent 'up-tariffing' which may occur as an unintended consequence of courts trying to use the YRO to tackle a wide range of problems at least some of which would be more appropriately addressed through other channels. The Bill should be amended to require proportionality in relation to the child's age and individual circumstances. Also to aid members to assess the YRO provisions, draft sentencing guidelines should made available for scrutiny at Committee Stage. These too must make clear that the sentence must be proportionate to the seriousness of the offence.
7. Menu of Requirements: The list of requirements in Schedule 1 requires substantial amendment in order to ensure that they are congruent with international treaty obligations, domestic child welfare legislation and frontline work practices. Some areas for amendment are
7.1 Local authority residence requirement (para 17): Although we understand that this requirement mirrors the existing Supervision Order we question its replication here. We consider children should not be sent into care on a sidewind of criminal proceedings. Welfare should always be addressed through the assessment of the child's safeguarding and welfare needs and the corresponding obligations on the local authority to meet or work with others to provide for these needs. 7.2 Prohibitive requirements (paras 13, 14, 15; prohibited activity, curfews and exclusions): These requirements should only be possible at the recommendation of the Youth Offending Team (a formulation already used for other elements e.g. drug treatment). These are very intrusive requirements and should not be applied without expert pre-trial consideration. 7.3 Attendance Centre requirement (para 12): We believe that responsibility for junior Attendance Centres should transferred from central Government to Youth Offending Teams with renaming as Youth Justice Centres. 7.4 Mental Health and Drug Treatment requirements (paras 20 and 22): the need for consent should not be restricted to children aged 14 and over. The Bill should incorporate the general approach of requiring parental consent to medical treatment for all under 16s where a child is considered 'not-competent'. 7.5 Access to justice (para 19): The bill's provision that a local authority residence or fostering requirement may only be imposed where the child was legally represented in court highlights the fact that there is no general requirement for children to have legal representation in criminal proceedings - even though these can result in custody or other substantial requirements and restrictions. This is of serious concern and the Bill should be amended to guarantee that children have access to justice.
YRO with Intensive Supervision and Surveillance (ISS)
8. We welcome the proposal to make the Intensive Supervision and Surveillance Programme statutory by making it an option with the YRO. However this is a crucial high-tariff alternative to custody and needs to be a more robust and visible option. As was proposed by the Government in the follow up to Youth Justice - The Next Steps, we consider that the intensive supervision and surveillance option should be a separate sentence sitting above the YRO. This would mark more clearly to the courts and others that this really is the last stop before custody, and help to reduce the risk of escalation inherent in a single community sentence. Also the Bill needs to make clear that a custodial sentence cannot be imposed unless an ISS requirement has previously been tried and failed or the offence is so serious that s.90/91 detention is required.
Breach
9. The breach provisions in Schedule 2 cause significant concerns. Young people are prone to challenge, rebel and act on impulse; and this needs to be responded to calmly and with judgement. Yet for the first time formal action would be required whenever a young person breaches. We believe that removing the professional discretion to respond informally is a retrograde step that must be reversed during the passage of the Bill. 10. Equally alarming and requiring removal is the specification that following a second breach of a YRO with Intensive Supervision and Surveillance, where the breach is deemed to be wilful and persistent, a young person may receive a custodial sentence. Furthermore the provisions in Schedule 2 (6)(13) and (8)(12) specify that on breach of a YRO an ISS requirement can be imposed whether or not the original offence was punishable by imprisonment. If this is subsequently breached then a custodial sentence becomes available, again even where it was not for the original offence.
11. Finally we urge removal of the Schedule 2 provision reversing the current presumption that where an order is made by the Crown Court any breach will be dealt with in the Youth Court. The new provision would cause unnecessary cost and delay; youth courts are as capable as Crown Courts of dealing with these matters. CLAUSE 9: PURPOSES OF SENTENCING
12. A coherent statement of the purposes of sentencing children is long overdue. However we are very disappointed that in its proposed form, this clause fails to put the welfare and the best interests of children at the heart of the youth justice system.
13. The UK's obligations under the United Nations on the Rights of the Child (UNCRC) commit us to separating the system for dealing with children in trouble with the law from that for adults (Article 37), ensuring that the best interests of the child are a primary consideration in all decisions about them (Article 3) and using custody only as a measure of last resort (Article 40). However throughout the system in England and Wales these rights are being breached and there is evidence that the welfare of the child is being subordinated to the desire to deliver punishment through strictly offending-related assessments and programmes of intervention.
14. In order to meet our international obligations and reverse the current systemic failings we believe that promoting children's welfare should not only be included within the list of purposes of sentencing but also made the primary purpose.
15. Reference is made within Clause 1 to Section 44 of the Children and Young Persons Act 1933, which requires all courts (family proceedings and criminal) to have regard to the child's welfare. In our view this provision is inadequate and must be modernised to refer to a child's well-being, as defined in Section 10 (2) of the Children Act 2004. The would bring sentencing into the remit of the Every Child Matters process which would mean that the Common Assessment Framework should then be used to determine what the child's needs are, not just in terms of their safeguarding and welfare, but also their mental and physical health, their education and skills needs, their 'making a positive contribution to society' and their 'achieving economic well-being'.
16. Finally we consider that the 'punishment' purpose should be omitted as unsuitable for children in trouble with the law and replaced with a requirement that sentences are a proportionate response to offending.
CLAUSE 21: REFERRAL ORDERS
17. Clause 21 amends the Referral Order (RO) provisions in section 17 of the Powers of Criminal Courts (Sentencing) Act 2001, which are currently only available on first convictions. This disposal requires a young person to attend a youth offender panel, the members of which then agree a contract with them aimed at preventing re-offending.
18. The Government's original commitment following Youth Justice - The Next Steps, was to introduce a ' limited extension to Referral Orders to allow them on a later court appearance, for example where the young person has not previously received one or did so at least two years ago'. Clause 21 allows one where there has previously been a conviction for a single offence, unless a referral order had been imposed then. However the RO has been one of the more successful youth justice sentences, based as it is on problem-solving restorative justice which also offers a role to victims. There is no good reason for the relaxation to be so cautious. The SCYJ considers that the Bill should allow a RO where there has been a previous conviction, i.e. whether it was for one or more offences; and it should be left to the court to decide whether a RO can follow a previous one, e.g. because the crime or the scope for victim involvement is different.
19. This is also an opportunity to correct an existing anomaly in relation to the circumstances in which a RO can be extended - by allowing a panel the option of extending a RO where its terms have been breached, as can already be done if the young person has re-offended. CLAUSE 23: YOUTH DEFAULT ORDERS
20. This clause makes provision for a magistrates' court to impose a Youth Default Order (YDO) if a person aged under 18 defaults on a fine imposed following a conviction, instead of taking proceedings against the parent or guardian, as is currently the case. The YDO may require the young person to undertake unpaid work (if they are aged 16 or 17), attend an attendance centre or be subject to a curfew. These orders are subject to similar breach, revocation and variation processes as the YRO (discussed above) and we have similar concerns relating to their application.
CLAUSE 53: Alternatives to prosecution for offenders under 18
21. The SCYJ cautiously welcomes the introduction in Clause 53 of a youth version of the conditional caution as a much-needed measure of flexibility in the current pre-court system for children. The current reprimand and final warning replaced unlimited cautioning with the other extreme, a two-step system that leads automatically to court if the young person offends again within two years. That is a long time for a young person to have a sword hanging over them, and does not allow for impulsiveness and immaturity within what may an overall progression towards a more stable life.
22. However we also maintain that the extension of pre-court measures for young people should not merely replicate arrangements intended for adults and apply them uncritically to children and young people. To mark this distinction we would recommend that the Bill be amended to change the name of this disposal from a 'youth conditional caution' as this merely suggests an extension of the existing adult scheme. We would also welcome clarification about the age group that conditional cautions are intended for use with.
23. The framework in which these cautions would operate also requires amendment in order to maximise their potential benefit. We recommend that pre-court options, including conditional cautions, should be selectively available even where a young person has previously been convicted, the totality of conditions associated with a conditional caution must be proportionate to child's age and circumstances, and that conditions are limited to the rehabilitative or restorative.
CLAUSE 54: Rehabilitation of Offenders Act amendment
24. We welcome the measure in Clause 54 to bring reprimands and final warnings within the scope of the Rehabilitation of Offenders Act 1974, providing for them to be spent immediately. However we would also like to see further consideration given to the proposal first mooted by the Government in 2002 in its report 'Breaking the Circle, a report of the review of the Rehabilitation of Offenders Act'[1] that young people convicted by courts of minor and non-persistent crime should be eligible to have their records wiped clean at age 18. CLAUSES 71-73: STREET OFFENCES
25. Despite the Government's stated intention to make clear that involving children in prostitution is a form of child abuse, the law still permits the prosecution of a child over the age of ten for offences under the Street Offences Act 1959 which this clause amends. The guidance issued in 2002 by the Department of Health Safeguarding Children Involved in Prostitution laid out the clear intention that children involved in prostitution should be dealt with through a specialist child protection process rather than a criminal one and this has had a positive effect of substantially reducing the use of the criminal law to punish children. In order to cement this advance the Government should commit to restating the current policy position in the revised guidance on child sexual exploitation that is currently being drafted by the Department for Children, Schools and Families and also use this Bill to abolish the power to prosecute children under 18 for prostitution.
PART 8: VIOLENT OFFENDER ORDERS
26. The proposals for Violent Offender Orders were put forward in 'Rebalancing the criminal justice system in favour of the law-abiding majority: cutting crime, reducing re-offending and protecting the public'. They were described as a means of providing courts with 'tough new powers to manage dangerous violent offenders beyond the period of their sentence with penalties of up to five years for breach of conditions'.[2]
27. The SCYJ believes that these orders would be disproportionate and inappropriate for use on children and young people. They should be excluded, while remaining subject to the considerable existing powers of the courts.
PART 9: ANTI-SOCIAL BEHAVIOUR
28. Anti-social behaviour initiatives over recent years have been a reaction to a general fear of young people within our society and have drawn a large number of individual young people into the Youth Justice System. We do not support the introduction of further enforcement measures that we believe are counterproductive to the aim of reducing problematic behaviour and that have the potential to be seriously damaging to those who are subject to them.
29. We oppose the proposal in Clause 103 to extend premises closure orders from "crack houses" to cases of persistent antisocial behaviour. We have grave concerns that this could result in whole families being made temporarily homeless for a period because of the behaviour of one family member and the possibility of dependent children being taken into short-term care. There is also no automatic offer of rehabilitative services to help resolve problematic behaviour.
30. We welcome the introduction in Clause 108 of periodic reviews of Antisocial Behaviour Orders (ASBOs) for children and young people. Allegedly designed for adults, since their introduction in 1999 46% of ASBOs have been issued against children aged 10-17 although they comprise just 13 % of the population.[3] The recent move of the Government's Respect Unit into the new Department for Children, Schools and Families (DCSF) must mark the beginning of a new more constructive and child centred approach to problematic behaviour among this age group. Reviews of ASBOs need to be taken further, by enabling them at any stage, not just after 12 months. The Government should also require that Youth Offending Teams and where appropriate social services departments will be involved in the reviews, a key purpose of which should be to assess services made available to children under section 17 of the Children Act 1989.
31. The Government must also take this opportunity to reform other aspects of ASBOs: - Remove the option of custodial sentence for breach of an ASBO by a child. In a recent YJB study nearly half of the 137 young people whose case files were reviewed breached their ASBOs and custodial sentences were imposed on 36 of them at some point after they had been made subject to an ASBO.[4] Although they are not necessarily being bought into custody solely as result of breach of these breaches, they are arriving in custody more quickly and spending a longer time locked up owing to sentences relating to their ASBO breach. - Ending the policy of 'naming and shaming' children who receive ASBOs: The Antisocial Behaviour Act 2003 and Serious Organised Crime and Police Act 2005 removed the automatic reporting restrictions, which were previously contained in s.49 Children and Young Persons Act 1933, for breaches of ASBOs. This practice is not only a breach of a child's human right to privacy[5], but is also counter-productive. For some children it becomes a 'badge of honour'[6], while for others who wish to make a fresh start, it prolongs the problems they have in re-engaging positively with their community. It can also make it very difficult for professionals to obtain services for their young clients and raises serious child protection concerns. The policy of naming and shaming young people must be ended, by extending the Youth Courts' presumption of privacy in criminal cases involving children to include any courts issuing ASBOs to children. - Reduce the minimum length of a child ASBO from two years to three months. Two years is a completely disproportionate minimum for children and young people. - Require an assessment under the Common Assessment Framework (including where appropriate an assessment under section 17 of the Children Act 1989 or a SEN assessment) prior to an order being made. This is critical to protect children who may be at risk, to ensure that those who have mental health difficulties or conditions such as autism are not overlooked and that they get the treatment they need and do not wrongfully end up with an ASBO. A Home Office Review of ASBOs in 2002 found that in 10% of the cases they looked into in detail, the young person subject to an ASBO had learning or other difficulties[7]. It is encouraging that recent guidance signals the Government's commitment to multi-agency working, including a process of professional assessment and intervention for all children caught up in the ASBO process. Without this support children are being set up to fail. Furthermore courts should be obliged to consider the child protection implications of any proposed ASBO and reject the application where the order might compromise safeguarding arrangements.
32. Clause 109 would allow Individual Support Orders (ISO), designed to put positive interventions in place to address problematic behaviour associated with an ASBO, to be made more than once and not just at the point at which the ASBO is made; and to be attached to ASBOs obtained on conviction and in the County Court (they are currently only available in the Youth Court).
33. Support for young people given ASBOs is often inadequate (in recent research, 20% of the Youth Offending Teams surveyed said that they were only 'occasionally' or 'never' involved when an ASBO was made on a young person[8]), but we are not convinced that further ISO extensions are the best remedy. ISOs place additional breachable requirements on young people, associated with their support needs hence creating more routes to failure. We propose that instead of this statutory change, Government should guarantee to offer targeted youth support and, where an ASBO accompanies a conviction, support through the youth justice system.
WHAT IS MISSING FROM THE BILL
34. Treatment of 17-Year Olds: The Bill is silent on the continued treatment of 17 year olds as adults for the purposes of bail and remand. This means that 17 year olds in police detention are not entitled to the support of an appropriate adult, and if refused bail are held at the police station rather than being transferred to local authority accommodation. At court too, children are treated as adults for remand purposes, being automatically remanded to custody where bail is denied. The Government originally intended to tackle this through Youth Justice - The Next Steps; we think that assurances should now be sought that the Government will bring forward and consult on legislative proposals to treat under 17 year olds as children and young people for remand purposes.
35. Custody for children: The SCYJ regards the increased use of custody for children in recent years as one of the most alarming developments within the youth justice arena. The number of custodial sentences imposed during 2004 was almost 60% higher than in the early 1990s.[9] The large majority of children in custody are held within prison service young offender institutions (YOIs) that are incapable of meeting the extent of need that such young people exhibit. The number of children assessed as vulnerable who are detained in YOIs has risen from 432 in 2001/02 to 3,337 in 2003/04.[10] Notwithstanding the best efforts of staff who work in custodial establishments to provide a safe environment, the treatment of children in custody, and in particular the use of painful physical restraint, strip searching and segregation (as highlighted recently in the Carlile Report)[11] can be damaging for all children and can exacerbate existing vulnerabilities. The statistical outcomes speak of failure. Levels of self harm within secure training centres, which typically hold younger children, rose by 803% between 2001 and 2004; 29 children have died in custody since 1990[12] and the risk of suicide for incarcerated teenage boys is 18 times higher than those within the community.[13]
36. We therefore consider that there should be a statutory custody threshold set at the level at which there is a demonstrable risk of serious harm to the public and that all children who have to be detained should be placed in child focussed provision, designed to meet their needs and aimed at therapy and rehabilitation. Furthermore an accountability requirement should be placed on local authorities, so that where a custodial sentence is being considered they should have to state in court the services and assistance they have put in place to assist the child where it was reasonable to have known that the child was in need.
October 2007
The Standing Committee for Youth Justice (SCYJ) is a membership body which: § Provides a forum for organisations, primarily in the non-statutory sector, working to promote the welfare of children who become engaged in the youth justice system; and § Advocates a child-focussed youth justice system that promotes the integration of such children into society and thus serves the best interests of the children themselves and the community at large.
Its members are: Barnardo's, Centre for Crime and Justice Studies KCL, Children's Rights Alliance for England, Commission for Racial Equality, Just for Kids Law, JUSTICE, Nacro, National Association of YOT Managers, National Association for Youth Justice, National Children's Bureau, NCH, NSPCC, Rainer, Save the Children, SOVA, The Children's Society, The Howard League for Penal Reform, The National Youth Agency, The Princes Trust and VOICE The contents of this memorandum do not necessarily reflect the views of all member organisations [1] Home Office (2002) Breaking the Circle, a report of the review of the Rehabilitation of Offenders Act' http://www.homeoffice.gov.uk/documents/breaking-the-circle?view=Binary [2] Home Office (July 2006) Rebalancing the criminal justice system in favour of the law-abiding majority. Cutting crime, reducing reoffending and protecting the public. p. 6 http://www.homeoffice.gov.uk/documents/CJS-review.pdf/CJS-review-english.pdf?view=Binary [3] Children's Rights Alliance for England (2005) State of Children's Rights in England [4] YJB (2006) Anti-social Behaviour Orders [5] As identified in Article 40 (2) (vii) of the United Nations Convention on the Rights of the Child, which says that all states should ensure the privacy of children and young people in conflict with the law is fully protected. [6] YJB (2006) Anti-social Behaviour Orders [7] Campbell S. (2002) 'A Review of ASBOs, Home Office Research Series 236, London: Home Office. [8] Thomas M., Vuong K., Renshaw J. (2004) 'ASBOs and Young People', research commissioned by the Association of YOT Managers. [9] Nacro (2006) Some facts about young people who offend - 2004, Youth crime briefing, 2006 [10] 'Youth justice news' in Youth Justice 4(2), October 2004 [11] Lord Carlile of Berriew QC (2006) An independent inquiry into the use of physical restraint, solitary confinement and forcible strip searching of children in Prisons, Secure Training Centres and Local Authority Secure Children's Homes. The Howard League for Penal Reform, London. [12] 'Youth justice news' in Youth Justice 5(3) February 2006 [13] Faze, S, Benning, R & Danesh, J (2005) 'Suicides in male prisoners in England & Wales 1978-2003' The Lancet, No 366 |