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.
SENTENCING FOR
CHILDREN AND
YOUNG PEOPLE
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.
CURRENT SENTENCING
OPTIONS
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.
RESTORATIVE JUSTICE
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.
ANTI-SOCIAL
BEHAVIOUR
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.
FUTURE REFORM
OF THE
SENTENCING FRAMEWORK
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.
PRE-COURT
INTERVENTIONS
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.
SENTENCING GUIDELINES
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.
ASSESSMENT, PLANNING
AND INTERVENTIONS—BEYOND
THE SENTENCING
FRAMEWORK
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 http://www.yjb.gov.uk/publications/Scripts/prodView.asp?idproduct=325&eP= Back
154
See http://www.yjb.gov.uk/Publications/Scripts/prodView.asp?idproduct=270&eP= Back
155
Custody figures-http://www.yjb.gov.uk/en-gb/yjs/Custody/CustodyFigures/ Back
156
See Developing Restorative Justice document http://www.yjb.gov.uk/en-gb/practitioners/WorkingwithVictims/ Back
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