Select Committee on Home Affairs Written Evidence

44.  Memorandum submitted by the Youth Justice Board for England and Wales (YJB)

  1.  The Youth Justice Board for England and Wales (YJB) welcomes the inquiry and the opportunity to submit written evidence. This note provides background on the role of the YJB, an overview of developments in the youth justice system in relation to sentencing and an outline of the approach undertaken by the YJB to support effective sentencing. The YJB would be pleased to provide any further information that would be of assistance to the Committee including more detailed statistical information where helpful.

  2.  In general, while not directly managing either secure establishments or local Youth Offending Teams (YOTs), the role of the YJB is to oversee the youth justice system in England and Wales. Specifically, we:

    —  advise the Home Secretary on the operation of, and standards for, the youth justice system;

    —  monitor the performance of the youth justice system;

    —  purchase places for, and place, children and young people remanded or sentenced to custody;

    —  identify and promote effective practice;

    —  make grants to local authorities or other bodies to support the development of effective practice; and

    —  commission research and publish information.

  3.  The Youth Justice System has been through a major period of reform since the late 1990s. The Crime and Disorder Act 1998 and subsequent legislation introduced far reaching changes both to the way the youth justice system operates and to the way children and young people under 18 are sentenced. As well as the establishment of the YJB at the national level and YOTs at the local level the legislation introduced significant changes to the sentencing framework. The cautioning system for children and young people was reformed introducing a two-tier Reprimand and Final Warning system and new court disposals were introduced including the Reparation Order, the Action Plan Order and the Referral Order. A new main custodial sentence was introduced, the Detention and Training Order half served in the custody and half in the community. A key objective of the YJB has been to develop practice to support interventions with children and young people subject to disposals. This has ranged from the introduction of a standardised assessment and intervention planning tool to analyse the risks and needs of young people to support their supervision aimed at reducing reoffending to the development and funding of the Intensive Supervision and Surveillance Programme providing intensive intervention for more persistent and serious offenders.


  4.  It is well established that when sentencing children and young people, a distinct approach is required to that for adults. This has been clearly acknowledged through the establishment of youth courts and the creation of a distinct youth justice system. Children and young people can have different needs and can be exposed to different risks than adults. Significantly they are less mature, psychologically and physically more vulnerable and while criminally responsible (aged 10 and over) they are in many cases also the responsibility of their parent or carer (at least until aged 16).

  5.  Sentencing children and young people who offend is also distinct in that it involves a meeting of both criminal justice and welfare legislation. A wide range of legislation is relevant as well as international convention. It is the YJB's view that achieving an appropriate balance between criminal justice and child-centred principles is complex but critical to ensuring that the youth justice system maintains its separate and distinct approach to sentencing. The Crime and Disorder Act 1998 established a principal aim for the youth justice system. Section 37 of the Act states that, "It shall be the principal aim of the youth justice system to prevent offending by children and young persons" and that, "it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim." While this principal aim has been set out there is not currently a specific statement on the purposes of sentencing that is similar to that set out in the Criminal Justice Act 2003 for adults. The government has indicated that this is one area they may seek to legislate on in the future establishing a similar but distinct "purposes of sentencing" for children and young people, linked to the statutory aim of the system to prevent offending. If introduced, it would be likely to establish a list of additional purposes of sentencing which the court takes into account—including punishment and the protection of the public—alongside the aim of preventing offending. The YJB would welcome this clarity which would further emphasise the principal aim of the youth justice system.


  6.  As noted the Crime and Disorder Act 1998 and subsequent legislation introduced a range of new community sentencing options for children and young people who offend, reforming and adding to existing sentencing options introduced through previous criminal justice legislation. There are currently a wide range of court disposals for children and young people, some subject to specific conditions and criteria. Data from Youth Offending Teams on the current levels of use of different disposals, and related performance information, is provided within the YJB annual publications.[153]

  7.  For young people sentenced in the youth court for the first time who plead guilty, the court is required, with some exceptions, to make a Referral Order. The Referral Order and youth offender panels now account for around a quarter of court disposals for children and young people. They are delivered as a form of community justice with the referral panels comprising in the region of 5,000 trained community volunteers directly involved in delivering youth justice. The YJB has strongly supported the introduction of the Referral Order and the opportunity to directly involve community representatives in an approach that seeks to promote reparation and restorative solutions while ensuring children and young people are aware of the consequences of their actions. The YJB in general welcomes various developments there are to promote greater community engagement within the criminal justice system and would welcome opportunities to extend direct involvement in the system.

  8.  There are currently a range of youth community orders available for young people, as well as the three former adult community sentences for 16-17 year olds. In addition, the Intensive Supervision and Surveillance Programme (ISSP) can be attached, subject to eligibility criteria, to certain orders to provide an increased level of intervention for young people on high-end community sentences. ISSP was introduced by the YJB in 2001 and is recognised as the most robust and innovative community based programme for persistent and serious young offenders. ISSP has multiple components in order to tackle the numerous needs and level of risk of reoffending presented. It combines supervision with surveillance in order to bring structure to young people's lives. Evaluation of the ISSP has shown a relatively high level of sentencer confidence in the programme with the courts recognising its benefits in bridging a divide between custody and more conventional community penalties. The independent evaluation of the programme has noted that seriousness and frequency of offending has reduced following the programme, although this was also noted for comparison groups. Significantly however the evaluation indicated progress in tackling the underlying causes of offending. Also, while the headline reconviction rate is high, rates for young offenders of similar age and risk profile are higher for those leaving custody or other community sentences. As noted in the evaluation young people on ISSP are subject to a relatively high level of surveillance. Also, the young people on the programme are some of the most persistent and challenging young people in the system and it is not unexpected that young people with an average of 11 offences in the previous two years are unlikely to cease offending completely as the result of a programme.

  9.  As noted, the primary custodial sentence for children and young people under 18 is the Detention and Training Order. More serious cases are subject to Section 90 and 91 custodial sentences. The Criminal Justice Act 2003 also applied extended sentences and imprisonment for public protection to under 18 year olds.

  10.  In terms of the use of custody the YJB set out its assumptions relating to its use in its Strategy for the Secure Estate.[154] The key assumptions include that custody should be used only as a last resort, in line with international convention, and in relation to children and young people custody should be used particularly sparingly because of their dependent, developing and often vulnerable status. While custody is required, in particular for public protection reasons, it should remain the measure of last resort. There are clear benefits in being able to use community orders where possible including being better able to maintain and promote links with both family and key public services that can help reduce the likelihood of reoffending. Custody can provide severe disruption to a young person's life without a sufficiently long period of time to expect work in custody to have any lasting impact. While the reoffending rate for each type of disposal does relate to the types of young people subject to those orders, in broad terms the higher up the sentencing framework the higher also the reconviction rate, with custody performing at the worst level. While custody may provide short term respite from the most persistent offenders or protection for the public for most serious offenders there is a strong case for minimising its use where possible.

  11.  As would be expected, both proportionately and numerically compared to adults there are relatively few children and young people in custody. However, by international standards the use of custody in England and Wales for children and young people remains high. While the custodial population of children and young people in the last few years has not mirrored the sharper rises in the adult population, and as a proportion of overall court disposals has marginally decreased, absolute numbers have been persistent since the YJB was established, and in recent months there have been significant increases.[155] While it may be that measures to limit the need for custody and promote community sentences have had some impact in limiting overall rises as a proportion of all sentences, YJB has not been able to date to meet its targets to reduce the absolute numbers of children and young people held in custody.

  12.  The YJB has worked to develop the robustness of and confidence in community orders in order to minimise the need for custody, principally through considerable investment in the use of ISSP. Also, the YJB currently is piloting on a small scale the use of Intensive Fostering as an alternative to custody in cases where a young person's offending is directly linked to his or her home environment. The programme is designed to provide highly intensive care for up to 12 months as well as a programme of support for the family.

  13.  The development of specific community programmes has been part of a wider package of measures to minimise the need for custody, including developing relationships with sentencers both at the national and local level in order to understand more clearly what are significant factors that lead to the use of custody in marginal or "cusp" cases. Part of the YJB's approach has been to produce regular data to courts and YOTs indicating the relative use of custody in different YOT areas. Clearly the use of custody will be related to the nature of the particular cases before the courts but the data has been provided to give an indication of how different areas compare. A regular publication of this data, originally undertaken by the YJB, is now being undertaken by the Sentencing Guidelines Council. The sentencing trends show that there has been a geographical variation in the custody rate across different areas. While this regional variation will be connected to differences in offence seriousness and levels of persistence, it has been the YJB's view that this is unlikely to explain the whole difference. Research and discussions with YOTs and their partners indicates that a number of reasons can influence the local custody rate. Of most significance to YOTs is that these factors include the general level of confidence of the courts in their local YOT, the quality of their court reports, and the overall proportionate use of disposals, not just the relative use of custody and "alternatives to custody".

  14.  Research undertaken for the YJB in 2002 found that sentencers who had effective liaison and communication channels with their local YOT were more likely to consider community sentencing options than those who did not. The research findings highlighted the importance of YOT officers developing and sustaining good relationships with their local courts. Many YOTs already have excellent relationships with local courts and sentencers, involving regular liaison meetings, briefings and visits by new youth panel magistrates and District Judges to view the work of the YOT. Currently, the YJB is co-sponsoring a series of successful regional conferences for youth court magistrates including specifically considering how to improve sentencers' confidence in community sentences and the work of YOTs. The YJB is also working to develop its relationships with other sentences including being directly involved in the training of District Judges that may sit in the youth court.

  15.  As the Committee will be aware from evidence presented for the inquiry into Young Black People and the Criminal Justice System, the YJB has also required YOTs to undertake audits and develop action plans to address disproportionate representation of different ethnic groups. Data on the relative use of different disposals have formed part of that consideration.

  16.  In terms of the new sentences introduced by the Criminal Justice Act 2003 for public protection there were some distinctions made in the process in relation to children and young people under 18. While as would be expected there use has not been as high as in the adult system, significant numbers of young people have been subject to the new orders. This has raised issues about the management of these young people. The YJB has developed links with the Parole Board which considers the release of those subject to these provisions and YJB has recently published guidance to YOTs on their role in relation to the release and recall of this relatively small but high risk group of young people.


  17.  Restorative justice became one of the underlying principles in youth justice following the post 1998 reforms, particularly through the introduction of the Referral Order. The YJB has promoted restorative justice practice though setting YOTs targets for victim involvement and the publication of effective practice guidance. In 2005-06 in the region of 40,000 victims of youth crime were offered the opportunity to participate in restorative process and about half, 48% did so. About one third of victims who participated were involved in face to face meetings and over 90% of the victims who were involved expressed they were satisfied with the experience.

  18.  The YJB is committed to developing and improving restorative justice practice within the system and has recently set out proposals to develop its approach.[156] Restorative justice enables victims to have their say and talk about the full impact of a crime on their lives. They can actively participate in the resolution of the offence, receiving answers to questions and reparation for the harm caused. Offenders are expected to repair the harm they have caused and have the opportunity to help put things right with the victim for example by repairing damage. The YJB does not consider restorative justice a soft option as offenders can find it difficult to face up to the impact of their crimes with victims. Research consistently shows that most victims who participate in a restorative justice process find it helpful and are satisfied. While the evidence is incomplete, restorative justice can be a promising approach for reducing offending especially when combined with other effective practice based interventions. We also believe that restorative justice can be a useful tool in other contexts such as to manage behaviour and resolve conflict within schools and children's homes and potentially as an aid to conflict resolution and behaviour management within the secure estate.


  19.  As well as criminal court disposals it is worth noting that measures to respond to anti-social behaviour can also impact on the children and young people within the criminal justice system. ASBOs can be available on conviction in criminal courts and also young people subject to court orders may also be subject to ASBOs or other measures through civil or pre-court routes. This connection between the youth justice system and measures to respond to anti-social behaviour further confirms the importance of the YJB's emphasis on ensuring that YOTs are successfully engaged in local anti-social behaviour arrangements and involved wherever possible in decisions relating to children and young people, which has been reflected in cross government guidance.


  20.  As noted the Government is considering introducing new legislation to reform the community sentencing framework for children and young people. Since the publication of Youth Justice: The Next Steps the government has been considering the introduction of a generic community order (the Youth Rehabilitation Order) rationalising the current range of orders and providing more flexibility to the courts on the use of interventions and conditions. The YJB has been in favour of some rationalisation of the current framework in particular that would allow the courts to more closely to match sentences to address the issues raised through YOT assessments and court reports. Our understanding is that the intention would be to maintain the Reparation and Referral Orders as separate orders which is supported by the YJB partly to ensure there remains a hierarchy of community options available to the courts. The YJB is keen to ensure that a new generic community order for children and young people does not mean that there will be a quicker escalation up the sentencing framework for children and young people that reoffend. For this reason, it will be important for clear guidelines to be introduced on a tiered approach to the use of the order depending on the nature of the offending in question. It is welcome that part of the potential reform the government is considering placing the Intensive Supervision and Surveillance Programme on a statutory footing as a separate requirement within the generic order as a clear alternative to custody.


  21.  The YJB is concerned to ensure that where possible there is effective use of pre-court disposals without the need for court involvement in particular with minor offending. While the Crime and Disorder Act brought welcome clarity to the pre-court system and led to an end to repeat cautions with no intervention, there is some evidence that there is more scope to use pre-court disposals to avoid minor offences reaching the courts. This is an issue under consideration and the YJB would support measures to introduce an additional level of pre-court disposal such as through the extension of a conditional warning tier within the youth justice system. We would also welcome the development of, and recognition within police performance measures, of on-street reparative sanctions for children and young people where a more formal criminal justice response would be disproportionate and the situation can be resolved relatively directly with the victim or victims. While YJB would welcome the development of such an approach it will be important to ensure operational implementation is effective including appropriate training to police officers to ensure that it would not become simply the easiest low impact response. The critical factor is that pre-court interventions are able to lead to an appropriate level of intervention to address harm and reduce the likelihood of further offending while maintaining public and victim confidence.


  22.  The YJB's primary concern is to ensure that sentencing guidelines are specific to children and young people wherever possible reflecting the need for a distinct approach and ensuring the courts have clear guidance specifically on children and young people before them. The YJB has welcomed the level of involvement to date in the development of guidelines by the Sentencing Guidelines Council. We support a proposal for the Sentencing Guidelines Council to undertake a review of youth justice sentencing guidelines. We understand that work on a review has been held until there is announcement on whether new youth justice legislation is to be introduced and is now likely to begin later in the spring. The YJB will readily contribute to this work to establish clear guidelines for the sentencing of children and young people. Linked to the work to more clearly define guidelines on sentencing for children and young people, the YJB would welcome, either in statute or in sentencing guidelines, the development of an operational definition within the youth justice system of last resort in terms of the use of custody to promote greater consistency.


  23.  A key objective of the YJB has been to support youth justice services to effectively work with children and young people within the youth justice system in order to reduce the likelihood of them reoffending—meeting the principal aim. While the sentencing system is important in setting the framework within which YOTs work, the nature of interventions delivered with children and young people is vital.

  24.  It is the YJB's view that good quality assessment of children and young people against their risk of reoffending is vital part of the youth justice system. As noted the YJB introduced a standardised assessment tool for YOTs as part of its contribution to the reform process which is used to assess the risks and needs of children and young people and their likelihood of reoffending. This tool can then in turn be used to inform the planning and delivery of interventions. As well as using assessment to identify needs of young people that can be associated with their offending, it is also used to assess risk of serious harm to others as well as vulnerability in order to inform interventions and necessary referral, for example, to local MAPPA or children's service arrangements.

  25.  Public protection is an important part of the work of YOTs. Although only a small number of young people known to YOTs present a risk of serious harm to the public, in that small proportion of cases, the risks posed can be serious. Custody, plays a critical role in public protection, but where offenders are being supervised in the community, including following a period of custody, YOTs need to ensure that supervision is as effective as possible. YOTs do face particular challenges in relation to public protection work with people because adolescent development is a time of rapid change in behaviour and attitudes. Young people known to YOTs also have far less criminal history than adults on which to base assessment of risk. To further complicate matters, a young person presenting a serious risk to the public may often themselves be vulnerable in terms of potential self-harm or harm from others. Safeguarding the wellbeing of young people on the one hand and public protection on the other are therefore closely linked and can require a co-ordinated approach. YJB has undertaken a serious of actions to support YOTs in this work including the development of the assessment tool and risk training and guidance for practitioners. Guidance has been issued in relation to YOTs' role in MAPPA and on the specific provision in the Criminal Justice Act 2003. YJB is continuing to develop ways to support YOTs including working with them to improve young people's compliance with the requirements of supervision. In general, proper enforcement of orders is an important element of actions to promote public and sentencer confidence not just in cases where there is a public protection aspect. The YJB believes that a key element of this work is about supporting and enabling young people to comply with conditions as well as effectively enforcing those conditions when there are failures.

  26.  There is considerable research undertaken into the factors that can be associated with the onset of offending and of reoffending. YJB has prioritised assessing children and young people against these risks and needs and using the information to inform work with them. Access to suitable education, training and employment is identified as a key protective factor against future offending. Other key factors include substance misuse, mental health needs and stable and appropriate accommodation (in particular at the older end of the age range). In general terms, "justice" interventions alone are unlikely to be effective without wider consideration of factors in children and young people's lives, including their wider family. YOTs as multi-agency partnerships are designed to ensure that both criminal justice considerations and wider children's services considerations are simultaneously taken into account when working with young people. Justice needs to be delivered while wherever possible promoting the key outcomes for children and young people set out in Every Child Matters, which in turn are likely to reduce the risk of reoffending. YJB has support this work including setting key performance indicators around undertaking assessment, referral and engagement in key services. While there has been progress there is a continuing need to improve the level of engagement in key services and it is vital that YOTs continue to bridge effectively both criminal justice and children's services. The quality of local partnership arrangements and the commitment of wider services are critical to an effective youth justice system and the effectiveness of sentences.

  27.  While there has been considerable progress in developing youth justice interventions and major work strands related to issues such as education and training and substance misuse services, there is more scope to improve practice and to ensure that interventions with children and young people within the system match the level of risk and needs. Improvements have been made, as noted including through the development of ISSP providing high levels of supervision and surveillance. To build on this, the YJB is currently developing a programme to improve "risk based" practice, including piloting new approaches in four areas. The aim of the approach is to ensure better use of individual assessment to determine the amount and nature of interventions and that intervention planning and sentence recommendations to courts are more closely based on the assessment of the risk level. While clearly sentences and the level of intervention requires proportionality to the nature of the offending there is scope to develop practice towards the tiered approach recommended by the Audit Commission Report Youth Justice 2004. Ultimately this project is being used to inform YJB's advice on the updating of national standards for youth justice as well as all other related effective practice guidance. The project will as necessary will be linked to the introduction of a generic community order, subject to government decisions and consideration by Parliament.

  28.  It is worth noting that many children and young people within the youth justice system, in particular more persistent and serious young offenders, have considerable needs to be addressed and can be living essentially chaotic lives. While not excusing their behaviour, once they have got to this stage it is not realistic that their lives and behaviour can be fundamentally changed in a short period of time. Work with young people during their sentences needs to be effectively continued by other children's services following the end of sentences when there are continuing needs and risks. YJB has developed models that involve an aspect of continuing support following the end of court orders in particular Resettlement and Aftercare Provision for children and young people with mental health and substance misuse needs. However, in general terms YOTs are not funded or designed to provide continuing needs beyond the end of sentences and there are benefits in this work being undertaken through "mainstream" services. As noted the level of challenge can be high. For example, the initial evaluation of the ISSP programme found that young people faced multiple problems. Of those on the programme:

    —  9% were known to have attempted suicide and 15% were said to be deliberately self-harming.

    —  36% were living with known offenders and 15% were of no fixed abode.

    —  Three in 10 were thought to have experienced abuse in the past.

    —  Approximately one in five young people had been attending mainstream school in the six months prior to ISSP, while over a quarter had no main source of educational provision.

    —  The average reading age for young people on ISSP was five and a half years behind the actual mean age.

    —  Drug use was prevalent, with 14% of the sample had used heroin and 11% had used crack cocaine.

March 2007

153   See Annual Statistics 2005/06 Back

154   See Back

155   Custody figures- Back

156   See Developing Restorative Justice document Back

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