Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Coram Children’s Legal Centre (CCLC) (LA 100)

A. Introduction

1. Coram Children’s Legal Centre (CCLC) is a unique independent NGO concerned with law and policy affecting children. The Centre works in the United Kingdom and around the world to promote the rights of children through the reform of law, policy and practice and through the provision of direct legal assistance to young people, parents and professionals.

2. CCLC has extensive experience working to reform legal systems around the world. Staffed by a core team of child rights lawyers and researchers, the CCLC engages in research, implements reform programmes, undertakes consultancies and delivers training for government, UN agencies and NGOs to reduce youth offending and to improve outcomes for children in conflict with the law. The organisation has a comprehensive understanding of international child rights and juvenile justice standards, as well as a practical knowledge of how to implement these standards in practice in a wide variety of social, political and cultural contexts.

3. CCLC welcomes the opportunity to submit evidence to the Committee for the Legal Aid, Sentencing, and Punishment of Offenders Bill. This briefing outlines our principle concerns respecting part 3 of the Bill and how it impacts on the sentencing of children. We have also prepared a separate briefing on the provisions of the Bill that relate to legal aid.

4. CCLC welcomes a number of the Bill’s reforms, in particular those that relate to referral orders and youth cautions, and the remand of children awaiting trial. We do, however, have serious concerns about other aspects of the Bill, such as the extension of maximum curfew orders for children to 16 hours per day, and the provisions that cover penalties for children in breach of a detention and training order.

B. Referral orders

5. Coram Children’s Legal Centre (CCLC) welcomes the reforms under clause 65 that reduce the number of conditions that must be met before a court must or may refer a child to a youth offending panel. We also welcome the new provision that a court has the option to conditionally discharge a young offender for a first offence. These reforms provide the courts with more flexibility to choose the most appropriate course of action for a child based on the particularities of each case and the background and needs of each child.

6. We recommend that the conditions for discretionary referral be relaxed further so that a child may be referred to a youth offending panel after conviction even where they did not plead guilty, provided that they subsequently admit to the offence and consent to the referral.

C. Breaches of Detention and Training Orders

7. The CCLC shares JUSTICE’s concerns about the provisions contained under clause 66 regarding penalties for youth offenders who are in breach of a detention or training order (DTO). [1] The rules allow the court to order an extra period of detention or supervision in addition to the period already imposed at sentencing. We worry that children who come into conflict with the law, particularly those in the most vulnerable situations, who are also likely to be those with the least capacity to fulfil the conditions of their DTO, are at risk of exposing themselves to an indefinite cycle of detention and supervision.

8. It is generally understood that children differ from adults in terms of their physical and psychological development, and that these differences constitute the basis for their reduced culpability within the criminal justice system. Children, particularly younger children, are generally less able than adults to realise that their actions may have long term and far reaching consequences. It is important to bear in mind when designing penalties for breaches of DTOs that they could be issued to children as young as twelve. Furthermore, children subject to a DTO are likely to suffer from some degree of developmental disability or mental illness, reducing their capacity to make rational choices about their behaviour. Finally, children in conflict with the law often come from disadvantaged backgrounds and have not been provided the support, structure and stability they need in order to achieve compliance with their DTO. It has been demonstrated that children with the highest level of welfare need are those who are most likely to breach their DTO; under these new rules, such children may be subjected to ongoing periods of detention and supervision. This is only likely to strengthen structures of inequality and disadvantage, "up-tariffing" vulnerable children through the criminal justice system so that they are at an increased risk of reoffending.

9. The CCLC agrees with the recommendations made by the Standing Committee for Youth Justice that alternative measures such as imposing a fine, changing the conditions of the supervision arrangements, or providing further periods of supervision for children through welfare services (rather than through criminal sentencing) would be a more effective way of promoting the rehabilitation of children in breach of a DTO. [2]

D. Curfew Requirements

10. The CCLC is very concerned about the extension of the maximum hours of curfew from 12 hours to 16 hours per day. We are not aware of any evidence that suggests that more restrictive curfews for children are likely to reduce rates of reoffending. Furthermore, there are serious rights implications of imposing such heavy restrictions on a child’s liberty as part of a community order.

11. These new rules are likely to have a negative effect on children’s wellbeing and compromise rehabilitation efforts. Children who come into conflict with the law often have a high level of protection or welfare need. There is a risk that under these rules such children will find themselves confined within an environment where they are exposed to domestic violence, abuse or neglect. Furthermore, keeping children under curfew for so many hours of the day will hamper their ability to participate in educational activities and limit their access to a range of support services such as drug, alcohol or mental health treatment programs that could aid their rehabilitation.

12. We believe that these provisions have simply been copied from the new provisions that are to apply to adults under clause 60, without attention as to whether they would be appropriate for children. The Prison Reform Trust recently published research that found that children already have trouble adhering to their curfews due to a "complicated set of factors" including a chaotic home. [3] Making curfew conditions tougher for children is likely to increase rates of breach.

13. We do not disagree with the provision that extends the maximum period of curfew from 6 months to 12 months, as we are hopeful that this may have the welcome effect of reducing the number of children who are sentenced to custody.

E. Youth Rehabilitation Orders

14. The CCLC is concerned about provisions under clause 69 which extend the maximum period of a Youth Rehabilitation Order from three to three and a half years. Three years is already an exceptionally long period of time from the perspective of a child, who is likely to feel overwhelmed by, and have difficulty comprehending, an order of this length. By way of comparison, Youth Conference Orders in Northern Ireland are currently set at a maximum of twelve months. [4]

15. We are also opposed to provisions under clause 70 which raise the maximum fine for the breach of a Youth Rehabilitation Order to £2,500. Given that the majority of children have very limited or no independent income we do not think that fines of this amount are appropriate or reasonable. We recommend that they remain as they are at a maximum of £250 for children under 14 years, and £1,000 for children over 14 years.

G. Remand to youth detention accommodation

16. The CCLC is very pleased with the reforms contained under clauses 81 and 82 which tighten the conditions under which a child may be remanded in custody awaiting trial. This brings the youth justice system into closer compliance with international law, which provides that children must only be deprived of their liberty as a measure of last resort. [5] We would however recommend that the age condition under subsection 2 of clauses 81 and 82 be raised from 12 to 14 years. As pointed out by the Prison Reform Trust, in cases where a child aged 12 or 13 poses a serious risk to the public, the court can request that they are placed in secure accommodation under welfare legislation, as is the practice for children aged 10 and 11. [6]

 

September 2011