26. Memorandum submitted by
the National Society for the Prevention of Cruelty to Children
(NSPCC)
A. EXECUTIVE
SUMMARY
A.1 The National Society for the Prevention
of Cruelty to Children (NSPCC) is the UK's leading charity specialising
in child protection and the prevention of cruelty to children.
The NSPCC aims to end cruelty to children by seeking to influence
legislation, policy, practice, attitudes and behaviours for the
benefit of children and young people. This is achieved through
a combination of service provision, lobbying, campaigning and
public education.
A.2 The NSPCC believes that, given the will,
all cruelty can be prevented. In order to achieve this, it is
vital that all children, whatever their needs, have a range of
services that are flexible and offer them support and protection.
A.3 This submission is a summary of the
NSPCC's experience and expertise in a range of areas relating
to sentencing including our own experiences of the assessment
and management of offenders and the public protection issues involved
in safeguarding vulnerable children. It also includes our own
experience of public concern about the sentencing of sex offenders.
It is set out below in sections that correspond to the specific
issues raised by the Home Affairs Committee on the recent Home
Office consultation Making Sentencing Clearer which looks
at ways of communicating sentencing to the public and at how to
achieve the goals around sentencing described in the Criminal
Justice Act 2003.
A.4 The NSPCC agrees with the overall aims
outlined in the consultation document, namely to explain sentencing
more effectively to the public and to concentrate the energies
and resources of the criminal justice system on those offenders
who pose a risk of harm.
A.5 This submission explains the NSPCC's
experience and expertise in this area including the necessity
for good communication with the public on sentencing and the importance
of using accurate and high-quality risk assessments to improve
public protection.
A.6 This submission also outlines our concerns
about the use of the extended sentences handed down to children
and young people under the new powers contained under the Criminal
Justice Act 2003. It details our concerns about these sentences
which fail to provide for the rehabilitation and treatment of
these children and fail to recognise the critical potential for
their development and change.
B. EXPLAINING
SENTENCING MORE
EFFECTIVELY TO
THE PUBLIC
B.1 The NSPCC strongly agrees that sentences
need to be explained better to the public. We find that discussion
of sentence length in certain cases in the media often distorts
the reality of how long someone will spend in custody. For example,
the impression is often given that release will be automatic when
an offender has served half of their sentence. We believe it would
be helpful for a judge to explain that in the case of a very serious
offence it would be unlikely that an offender would be released
after serving their minimum term. It should also be communicated
to the public that sentences for sex offenders have substantially
lengthened in recent years and that sentencing is now rightly
influenced by risk assessment and public protection.[79]
B.2 The consultation asks what means would
be effective in providing reassurance to the public. The suggestions
in the consultation appear to us to be sensible. However we strongly
recommend that the Government sponsor market research (for example
focus groups with cross sections of the public). This could explore
what construction or expressions could be used effectively by
a judge to explain to the public what a sentence is likely to
mean and what the process is for supervising offenders.
C. INCREASING
PUBLIC CONFIDENCE
IN NON-CUSTODIAL
SENTENCES
C.1 An offender should only be released
when they have been clearly assessed and experts are confident
that it is possible to manage them safely in the community. The
NSPCC has recommended that more resources be made available to
improve the management of sex offenders in the community, ensuring
consistent risk assessment processes, appropriate treatment and
high-quality, staffed accommodation.
C.2 The NSPCC considers that there is need
for better public communication about the current sex offender
management processes. In order to improve public confidence in
this, the public needs to know, and be assured, that when sentences
are served in the community the process is properly supervised
and managed, that there are meaningful processes to monitor the
offender in the community, and that offenders can be, and are,
sent back to custody for breaches of their sentence.
D. RISK MANAGEMENT
D.1 The NSPCC does not consider that judges
should determine an offender's release date (other than the minimum
term) at the time of sentencing. It is not reasonable to expect
them accurately to assess an offender's future level of risk without
having the accredited tools and professional expertise for doing
this. We consider therefore that this power should remain with
the parole board as it will have the most up to date information
available to it, at the time of an offender's potential parole,
for assessing their level of risk.
D.2 A further concern is that decisions
made by the judge at the time of sentence could lead to false
assumptions and reassurances in cases where a judge has not laid
down an extended minimum time for an offender to serve, even when
this may be necessary. We consider that appropriate risk assessment
tools must be used by professionals at the point of potential
release. It is however important to ensure that this decision
is made properly and to ensure that the decision-making process
at the half-way stage is always robust. It is important that decisions
should not be influenced by an undue pressure to release offenders
when they still pose a serious risk to the public. The NSPCC has
been concerned about the recent crisis in prison space and we
consider that a lack of space in prisons must not lead to an automatic
release at the half way stage, or to offenders not receiving the
appropriate sentence in the first place.
D.3 We understand that currently, when the
minimum period of custody has been served by an offender, the
parole board makes a decision about the appropriateness of release
on the basis of the evidence presented to it. We are aware that
sometimes the quality of the evidence is very poor and this is
clearly a cause for concern. For example, in the case of Anthony
Rice, the evidence presented to the parole board at the half-way
stage was based on an assessment made by the person who had been
responsible for delivering his treatment. This is clearly unacceptable
and it is important to ensure that high quality, independent assessments
are undertaken at this critical stage.
E. THE IMPACT
OF CHANGES
IN SENTENCING
ON CHILDREN
AND YOUNG
PEOPLE
E.1 Although there is no specific consideration
of children and young people within the consultation on "making
sentencing clearer" the NSPCC is concerned about the position
of children and young people within the criminal justice system.
The focus on tough sentences and on offenders" changing levels
of risk should include reflection on and reconsideration of the
situation of children who are convicted of sex offences.
E.2 The following Articles of the UN Convention
on the Rights of the Child are relevant to the UK in the criminal
justice system:
— Article 3—In all actions concerning
children, the best interests of the child shall be a primary consideration.
— Article 37—Children who break
the law should not be treated cruelly, but with humanity and respect.
They should not be put in prison with adults and should be able
to keep in contact with their families. Article 37b also makes
clear that custody should be a last resort for children.
— Article 40—If you are accused
of breaking the law you should get legal help. Prison should only
be used for the most serious crimes.
E.3 The UK Government has entered a reservation
on Article 37c. The text of the article emphasises that the only
time it is sensible to put a child in custody with adults is when
it is in the child's best interests. However the UK Government
has stated that "where at any time there is a lack of suitable
accommodation or adequate facilities for a particular individual
in any institution in which young offenders are detained, the
UK reserves the right not to apply article 37(c) in so far as
those provisions require children who are detained to be accommodated
separately from adults." The NSPCC strongly recommends the
removal of the UK reservation to article 37c of the UNCRC.
E.4 Despite the recommendations of the UNCRC
that custody should be used only for the most serious cases of
offending, the sentencing drift of recent years has been towards
children and young people being given longer sentences for doing
less and less.[80]
The United Nations Committee on the Rights of the Child has strongly
criticised UK youth justice policy and practice and has registered
a formal protest and requirement for the UK, as a signatory of
the Convention on the Rights of the Child, to correct breaches
of children's rights in this context.
E.5 The NSPCC is particularly concerned
about the new extended sentences that can be applied to children
and young people being tried for sexual and violent offences.
We agree with the principle that adult offenders should be kept
in custody when they pose a serious risk of harm to the public.
However we are concerned that following the implementation of
the Criminal Justice Act 2003 children can be tried by a higher
(adult) court for less serious offences. They can also be tried
at an earlier stage and are now eligible for the new extended
sentence scheme under the provisions governing dangerous offenders.
E.6 Further, the courts can impose a sentence
of detention for public protection. We consider it unhelpful that
the new sentences impose a rigid mandatory minimum framework for
children that may be applied even in cases where a community-based
intervention may be available and more suitable. We also note
that children who receive a six-month sentence can be eligible
for a ten-year period on the sex offender register and that those
that receive a sentence of imprisonment of over 30 months will
be placed on the sex offender register for the rest of their lives.
This works against the need to respond to children's development
as they grow and change. The NSPCC considers that any sentences
or sanctions applied to children must include provision for appropriate
treatment programmes and for the frequent reassessment of risk
that they pose in order to acknowledge the potential for children
to develop out of their offending behaviour.
E.7 There are a small number of children
in prison custody who have been convicted of offences under s.90/91
of the Powers of Criminal Courts (Sentencing) Act 2000,[81]
and we recognise that there is a case for these individuals to
be held in secure settings. However would like to see these children
accommodated in local authority secure children's homes rather
than in the prison estate, if they are assessed as not posing
a risk of harm to other children and young people in this setting.
E.8 The NSPCC works with children and young
people who are sexually harming and has extensive practice experience
of successful intervention and treatment work with these children.
There is a growing body of research evidence that work with children
who are sexually harming is effective in reducing sexual risk
to others, and there is some evidence that anti-social and offending
behaviours can also be reduced.81, 82, 83, 84[82][83][84][85]
Given the generally successful treatment outcomes with this group,
and the proven effectiveness of intervening early, we consider
that a far greater focus is needed on treatment and rehabilitation
than the current sentencing framework allows. It is wrong in our
view that many children are routinely sent down a criminal justice
route for sex offending, with little attention to either their
wider safeguarding needs (they have often been abused themselves)
or those of other children, and their families.
E.9 We therefore consider that the criminal
justice system and the sentencing framework must be more flexible
and responsive to the needs of this group. There should be an
assessment of a child's needs in relation to past maltreatment
to enable suitable one-to-one interventions to take place, either
within the youth detention setting or once they return to their
community. The provision of facilitated group work can also take
place in an institutional setting, on issues such as self-harm
and anger management, or to help the young person develop general
coping skills.
E.10 The NSPCC made the following recommendation
regarding the needs of young people who display sexually harmful
behaviour in 2002:[86]
A policy for appropriately accommodating these
young people should be developed. This should attempt to balance
the developmental needs of the young person with the risk that
they pose to others in the care system. The following should also
be implemented: placements based on both need and risk assessment;
development of a "continuum of care" with local authorities
and agencies combining their resources if necessary; training
for residential staff and foster carers; and ongoing assessment
and safeguards in all care settings.
E.11 We welcome the aims of the "making
sentencing clearer" consultation to focus the resources of
the criminal justice system on the most serious offenders and
to ensure that there is more availability for non-custodial disposals
for lesser offenders. We hope that the Home Office will urgently
consider ways to reduce custodial offences for children and young
people, given children and young people's greater potential for
rehabilitation and change.
Zoe Hilton
Policy Adviser for Safeguarding
5 March 2007
79 Home Office (2006) Making Sentencing Clearer: A
consultation and report of a review to the Home Secretary, Lord
Chancellor and Attorney Generaldon: Home Office. Back
80
Rod Morgan HM Chief Inspector of Probation for England and Wales-2003. Back
81
These include where a person under 18 has been convicted of:
murder; an offence punishable in the case of a person aged 21
or over with imprisonment for 14 years or more; indecent sexual
assault on a woman or a man; if over 14, causing death by dangerous
driving or causing death by careless driving while under influence
of drink or drugs. Back
82
Bentovim, A (2002) Preventing sexually abused young people from
becoming abusers and treating the victimization experiences of
young people who offend sexually. Child Abuse and Neglect 26 pp
661-678. Back
83
Hawkes, C, Jenkins, JA and Vizard, E "Roots of Sexual Violence
in Children and Adolescents" in Ved Varma (Ed) 1997. Violence
in Children and Adolescents. Jessica Kingsley Publishers.
London. Back
84
Jonson-Reid, M and Way, I (2001) "Adolescent sexual offenders:
incidence of childhood maltreatment, serious emotional disturbance
and prior offences", American Journal of Orthopsychiatry,
Vol 71, No 1, pp 120-30. Back
85
Hickey, N, Vizard, E, McCrory, E, French, L. (2006) Links between
juvenile sexually abusive behaviour and emerging servere personality
disorder traits in childhood. Department of Health, Home Office,
London. Back
86
E Lovell (2002) I think I might need some help with this problem,
Responding to Children and Young People who display sexually harmful
behaviour, NSPCC, London. Back
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