The treatment of young adults in the criminal justice system Contents

Conclusions and recommendations

The case for change to the treatment of young adults in the criminal justice system

1.Research from a range of disciplines strongly supports the view that young adults are a distinct group with needs that are different both from children under 18 and adults older than 25, underpinned by the developmental maturation process that takes place in this age group. In the context of the criminal justice system this is important as young people who commit crime typically stop doing so by their mid-20s. Those who decide no longer to commit crime can have their efforts to achieve this frustrated both by their previous involvement in the criminal justice system due to the consequences of having criminal records, and limitations in achieving financial independence due to lack of access to affordable accommodation or well-paid employment as wages and benefits are typically lower for this age group. (Paragraph 14)

2.In our view there is a strong case for a distinct approach to the treatment of young adults in the criminal justice system. Young adults are still developing neurologically up to the age of 25 and have a high prevalence of atypical brain development. These both impact on criminal behaviour and have implications for the appropriate treatment of young adults by the criminal justice system as they are more challenging to manage, harder to engage, and tend to have poorer outcomes. For young adults with neuro-disabilities maturity may be significantly hindered or delayed. Dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood. They typically commit a high volume of crimes and have high rates of re-offending and breach, yet they are the most likely age group to stop offending as they ‘grow out of crime’. Flawed interventions that do not recognise young adults’ maturity can slow desistance and extend the period of involvement in the system. (Paragraph 24)

Current approaches towards young adults in the criminal justice system

3.We consider that existing governance arrangements are unsatisfactory as they fail to take account both of the distinct needs of young adults up to the age of 25 and of the importance of understanding the level of maturity of all young adults to treat them effectively in recognition of their individual circumstances. There is no clearly defined strategy and the various age definitions applied by the Ministry of Justice are both confusing and do not inspire the coherent approach that young adults require if they are to engage effectively in their rehabilitation. (Paragraph 32)

4.In their policies and their guidance, the Ministry of Justice and NOMS do not appear to give sufficient weight to the implications of brain maturation for young adult men and women aged 21 to 25. Even for those aged 18 to 20 they lack a strategic differentiation in approach, particularly in prisons, for both male and female prisoners. (Paragraph 44)

5.The majority of our evidence recognises that there is an emerging interest in criminal justice agencies in treating young adults more appropriately, but argues that for the most part this has not been Government driven. There is little specific policy or legislation from the Ministry of Justice focused on this age group: most youth and adult justice policy and legislation is split on the basis of chronological age at 18. Coupled with inconsistent application of the definition of young adults in operational practice, this has created a system in which the distinct needs of young adults and the potential to assist them in turning away from crime are largely overlooked and at best treated inconsistently. In the absence of policy change the National Offender Management Service has focused on the promotion of guidance for practitioners and commissioners and emphasised training by individual prison establishments and by CRCs. (Paragraph 52)

6.We welcome the Ministry of Justice’s commitment to develop a maturity assessment. The absence within this of screening for mental disorders, neuro-disabilities and learning and communication needs has resulted in a missed opportunity to develop a comprehensive assessment. This is short-sighted as such screening would enable a thorough understanding of individual needs and underpin better informed commissioning decisions for the services young adults need to address their offending. Our evidence suggests that the equivalent tool used in the youth justice system could be adapted easily, and indeed is already being used informally in young adult YOIs. (Paragraph 53)

7.The Government’s current penal reform agenda indicates that significant structural changes are being considered, and indeed may be necessary financially. However, the lack of central decision making on young adults’ policy and practice has not been addressed explicitly within their plans. The MoJ and NOMS have side-stepped the issue of the anomaly of dedicated prison sentences for 18 to 20 year olds by designating many institutions YOIs as well as prisons but has neither ensured that mixed establishments have strategies for dealing with young adults, nor addressed the distinct needs of 22 to 25 year olds, resulting in a lack of robust evidence. The evidence shows that young adult prisoners are disproportionately more likely to engage in, and experience prison violence, and that bullying and violence is an enduring and worsening problem both in YOIs and mixed institutions. Without more explicit recognition of this, cohort outcomes are likely to remain poor and the evidence base for developing policy and practice is unlikely significantly to improve. (Paragraph 64)

8.The MOJ and NOMS accept the evidence that young adults mature up to their mid-20s, but their policies do not reflect this, especially in relation to 22 to 25 year olds. We welcome NOMS guidance which recognises that, by virtue of their developmental status and gender differences, young adults are likely to need managing in particular ways, but this has not translated systematically into practice. This is particularly the case in prisons, where we found no evidence of a strategy for the management of young adults, either in dedicated or mixed institutions. There is no routine screening and the prevalence of neuro-disabilities, mental disorder, and learning and communication needs is not known, resulting in inconsistent treatment, few dedicated approaches, a lack of sentence planning and, of utmost concern to us, very poor outcomes. We have major concerns about the time young adults are spending in their cells, the volume of disciplinary measures, and reoffending rates. While we understand the challenges of balancing responses to risks and needs, if the latter are not known and resources are not available to address them appropriately, practice weighs significantly on risk which is of little benefit to young adults who wish to give up crime, and indeed may compound their likelihood of remaining involved with the criminal justice system. (Paragraph 67)

9.There is limited evidence on the interventions which work effectively to reduce offending by young adults. This is partially due to the fact that young adults have not been clearly defined by the Ministry of Justice or NOMS as a group warranting differential treatment. Neither have they actively sought to understand what interventions work best with this cohort. It is important that this is addressed urgently as misdirected interventions can serve to increase criminality in young adult offenders. (Paragraph 68)

10.Current approaches to the treatment of young adults involved in the criminal justice system are not consistently developmentally appropriate. They do not sufficiently recognise the strong evidence on brain development, maturity, and the impact of cognitive impairments on how young adults experience the system. Neither do they seek to lessen the potentially detrimental effects of the system itself on development. The system is therefore not as effective as it could be in reducing offending by young adults, or improving their life chances following their involvement within it, and in some cases their treatment further compounds the problem. (Paragraph 76)

11.We welcome the inclusion of considerations of maturity in the Crown Prosecutors’ Code and Sentencing Council guidelines. However, it is not clear what impact these efforts to reflect the maturational development of young adults have had in practice. Neither CPS investigating prosecutors nor sentencers have a sufficiently sophisticated understanding of maturity to weigh up how it may affect young adults’ culpability. In addition they do not routinely have the necessary information on which to make robust assessments about an individual’s maturity and hence take account of this in their reasoned prosecution and sentencing decisions. It is likely therefore that maturity is only considered primarily in cases where there is extreme immaturity. (Paragraph 77)

12.The impact on young adults of moving away from the better resourced and more supportive environment of the youth justice system to adult services may be stark and require intensive management. Strong leadership has been exercised by the Youth Justice Board, National Probation Service and NOMS in recognising the critical importance of this transition and the risk that the process of implementing the Transforming Rehabilitation reforms might undermine existing practice. Although there is some evidence that these arrangements are not always working well, particularly in relation to the sharing of data, we welcome the robust measures that they have put into place to ensure strong partnership working and the necessary information sharing to minimise the disruption young adults face in navigating the inevitable fault line between the services. We note that there is potential for resource pressures to undermine the established practice of youth offending teams retaining young adults who become 18 while they finish serving their sentence with the risk that any progress made in the youth justice system could be lost. (Paragraph 84)

13.Advocates, sentencers and prosecutors are not sufficiently cognisant of brain development and neuro-disabilities for several reasons. Our evidence suggests that they tend to pick up those who are manifestly immature compared to their peers, and therefore perhaps the most serious cases, but they do not appear to be considering these matters for young adults as a matter of course. Practices therefore do not reflect adequately the evidence on typical brain development. (Paragraph 85)

Options for change

14.We understand the Youth Justice Board’s reticence to extend the youth justice system to young adults, and agree that this is not a worthwhile solution given the statutory context. Nevertheless, arbitrary removal of support at the age of 18 does not reflect the evidence on brain development and maturation and the Government is obliged to take account of age under international human rights law relating to detention. It would be counterproductive if reductions in statutory funding affects the extended support provided to some young adults by the youth justice system. (Paragraph 96)

15.The Government’s approach not to define young adults as having distinct needs and accordingly to facilitate appropriate responses has limited opportunities to further collective knowledge on effective practice. With the right intervention, one that takes account of the developmental maturity and particular needs of this group, young adults are far more likely to ‘grow out of crime’. (Paragraph 98)

16.Relationships with trusted, credible, and understanding practitioners and with supportive families and other networks are of critical importance in comprehending as fully as possible the nature of young adults’ risks and vulnerabilities and supporting them to stop offending and developing their resilience and maturity. We agree with the Ministry that safety in prisons should be everyone’s responsibility, but in failing to accept one of the central recommendations of the Harris Review—that young adults in custody need a designated person to engage, challenge, and support the—it has undervalued the role they would play in fostering desistance. (Paragraph 106)

17.Consideration of maturity and understanding of the need for developmentally appropriate treatment is intrinsic in youth court processes, including training for magistrates. Extending these approaches to young adults without changing the legislative framework would capitalise on trained youth magistrates whose expertise is underused due to falling caseloads in youth justice. While these principles could be applied to all criminal court processes, we recognise that the costs of training all sentencers to take a developmentally appropriate approach would be prohibitive. We look forward to hearing more from the Government about its potential plans for expanding the use of problem-solving courts when they announce their proposals for court reform. (Paragraph 113)

18.The MoJ has recognised that the operation of the custodial estate for young adults needs to change to take account of their distinctive needs but has not articulated what that means. The detention in a young offender institution (DYOI) sentence was originally conceived to offer extra protection and support to young adults because of their developing maturity. This has been rendered meaningless by the effective lack of differential treatment in the custodial estate. The extent to which the specific needs of young adults can be managed adequately, let alone effectively, in either distinct or mixed institutions is not clear. The Ministry and NOMS have not provided a robust evidential basis for their decisions to close several dedicated institutions. Indeed we have not seen any evidence that outcomes for young adults under different placement scenarios have been evaluated at all. We welcome their assurances that they are willing to revisit the government’s response to the Harris Review which has been disappointingly timid. While we welcome programmes which NOMS has recently developed under the violence reduction programme, these do not go far enough in creating developmentally appropriate responses to the management of behaviour, including violence. (Paragraph 120)

19.We have found limited evidence of innovative practice with young adults in prisons, even in the young adult prison estate for 18 to 21 year olds. Provision to address the needs of young adult offenders with mental disorders, neuro-disabilities, well-being needs stemming from trauma, and other learning and communication difficulties is particularly poor. We are not currently convinced that developmentally appropriate responses will flourish within the existing arrangements for managing young adults in custodial institutions without a step change in direction from the centre. The over-riding emphasis on safety may be necessary in the short-term but it cripples the system from engaging more effectively. The possibility of taking distinct approaches to young adults through specialist training and developmentally appropriate interventions is limited if they are integrated with older adults. (Paragraph 123)

20.While high levels of violence and bullying have been enduring problems in institutions holding young adults and have become endemic in their culture, this is not inevitable. The incentives and earned privileges scheme and punitive and restrictive measures to prevent violence, including shockingly long hours of being restricted to cells and high levels of adjudications are short-term means of managing a risky and vulnerable population. Such action does little to address underlying behaviour and is largely ineffective as a means of deterrence. Measures which focus on positive encouragement and which seek to understand the reasons underlying their conduct will be more successful in achieving changes in behaviour. (Paragraph 128)

21.Prison population levels and resources for staffing are now such that the population cannot safely be managed without confining young adult prisoners for significant periods of the day. There is little worth in improving education, employment and mental health support if they cannot be accessed. This renders one of the purposes of imprisonment—to rehabilitate—wholly redundant. Of course it is imperative that safety is the priority within prisons, but society also expects that prisoners will be released having a greater chance of living law abiding lives, and the extent to which prisons are promoting the purpose of public safety, other than for the often short duration of a prison sentence, is also minimised by this policy. The strain under which the prison system is operating means that it cannot be effective at rehabilitating young adults whose brains are still developing and for whom it is especially important. (Paragraph 129)

22.Our evidence from probation services suggests that there is sufficient flexibility within the adult community sentencing framework to facilitate a distinct approach to young adults in the community without legislative change. Developmentally appropriate responses are feasible within this framework—including through conditional cautions and rehabilitation requirements, attendance centres and intensive schemes—and appear to have flourished under the Transforming Rehabilitation reforms in some CRC areas although there are inconsistencies. This is dependent on CRCs recognising the benefits of developmentally appropriate responses, either collectively or on an individual basis following assessments of maturity, and on sentencers choosing to use them. Police and Crime Commissioners are well-positioned strategically to champion and co-ordinate more effective approaches, including diversionary approaches, and have been able to leverage multi-agency resources, including funding for victims’ services and partnerships with local authorities and health services. (Paragraph 136)

23.Young adults offend the most but have the most potential to stop offending. They are resource intensive as they are challenging to manage. A strong case could be made for recognising that expenditure to make the system more developmentally responsive would pay dividends in reduced costs to the system in reducing incidents of violence and to society in reducing offending and the creation of further victims. The Ministry of Justice has not clearly articulated to us why it has not acted decisively to develop a systematic new approach to young adults, given the weight of evidence. The lack of action denotes an absence of leadership, both Departmentally and within NOMS, and tinkering around the edges misses clear opportunities to seek to prevent the cycle of offending continuing, creating more victims in the process. (Paragraph 139)

Blueprint for a strategic approach to the treatment of young adults in the criminal justice system

24.There is overwhelming evidence that the criminal justice system does not adequately address the distinct needs of young adults. Scientific and sociological understanding of the development of young people and the factors which may dispose them to criminal behaviour or to desist from that behaviour has made recent important advances. Our inquiry has also taken place at a time of significant policy change, both in announcements of reforms to the operation of prisons and to the delivery of youth justice services and the embedding of reforms made by the previous Government to probation services and the commencement of some devolution of criminal justice budgets. While much of the detail is not yet known, in particular about the nature of reforms to prisons and the autonomy of governors, there has been a notable absence of resolution regarding the Government’s strategy for young adults despite assurances being given in the MoJ’s response to the Harris Review and in evidence to us that it was being considered as part of the prison reform agenda. We have not seen any compelling evidence of why it has not been courageous in its strategy for young adults, rather than hiding behind existing and outdated legislation which it is within its gift to seek to change. In the light of the Government’s failure to act and in recognition of the weight and wealth of evidence provided to us in the course of our inquiry, as well as the overwhelming enthusiasm within the sector for change, we present our recommendations to the Government in the form of a blueprint for a strategic framework which we expect to be adopted as part of their forthcoming reform plan. (Paragraph 140)

25.Both age and maturity should be taken into significantly greater account within the criminal justice system. The rationale of the system for young adults should presume that up to the age of 25 young adults are typically still maturing. A developmental approach should be taken that recognises that how they perceive, process and respond to situations is a function of their developmental stage and other factors affecting their maturity, and secondarily their culture and life experience. Navigating the system is particularly challenging for those with neuro-disabilities, neuro-developmental disorders, mental disorders and learning and communication needs, many of which co-exist and compound each other, and which are exacerbated by the trauma that many young adults have recently experienced. There must be a step change in policy and practice to recognise that, while most young adults involved in crime want to change, their distinct developmental status and neurological impairments impact on their experience of the system and their capacity to desist from crime. Guidance alone will not provide this. (Paragraph 141)

26.The strategic approach to young adults should be founded on the clear philosophy that the system should seek to acknowledge explicitly their developmental status, focus on young adults’ strengths, build their resilience and recognise unapologetically the degree of overlap between their status as victims and offenders. A common understanding of maturity should be devised by the Government which recognises typical and atypical maturation amongst young adults and is applied across the criminal justice system. Understanding of brain development, neuro-disabilities and trauma-informed approaches should be mandatory within basic prison and probation officer training. Both these elements would create cultural change in the treatment of this cohort by fostering a stronger understanding amongst all criminal justice professionals of the factors that bring young adults into the system and those which influence their ability to change their behaviour, which is not just about punishment and managing risk. (Paragraph 142)

27.The strategy must also address the current unacceptable situation that the prevalence amongst prisoners and those supervised by the probation service of a range of disabilities, disorders, cognitive difficulties, and forms of emotional trauma are both unknown and largely unaddressed, affecting their behaviour and prospects of rehabilitation. Most young adults in the criminal justice system will have had their needs assessed in the youth justice system. For those that have not, or for whom there are gaps, there should be a policy of universal screening by prisons and probation services for mental health needs, neuro-developmental disorders, maturity and neuro-psychological impairment, using specified tools developed by NOMS with the support of the Ministry of Justice. This will enable suspected need to be identified consistently and facilitate expert testing and/or responsive individualised support as well as providing evidence of collective levels of need to support commissioning and co-commissioning of specialist health, education, training and other services for young adult offenders. (Paragraph 143)

28.A specialised approach should be taken to staffing prison and probation services work with young adults, underpinned by more in-depth training. This would enable stronger expertise to be developed effectively to address the behaviours typical of lack of emotional maturity, which includes impulsive, ill-considered actions and non-consequential decision making. Such an approach is likely to be less costly and more effective than widespread in-depth training that would be required for the necessary cultural change to occur amongst all criminal justice professionals who come into contact with young adults. The need to foster desistance must be addressed in the Ministry’s forthcoming prison safety and reform plan which should include as part of a strategy for the management of young adults a commitment to ensuring that prison and probation caseloads for this group are sufficiently small to allow meaningful trusting relationships to be developed to facilitate safeguarding and rehabilitation (Paragraph 144)

29.We are encouraged by the Secretary of State’s emphasis on MoJ policy and practices taking an evidence-based approach. We do not accept the Government’s argument that the proportion of young adults in prison and probation caseloads precludes them from developing a distinct approach and believe that the evidence provides a compelling case for change. Adopting a distinct approach towards young adults is likely to result in improvements in the ways in which they are managed and supported in the criminal justice system which would improve outcomes and reduce costs. The MoJ must act swiftly to minimise the risk that in the context of shrinking budgets young adults will become less of a priority, particularly as there are not currently incentives for criminal justice services to invest in practices which may result in savings to other departments’ and agencies’ budgets rather than their own. (Paragraph 145)

30.Reforms to governor autonomy and the delivery of probation services should not release the MoJ and NOMS from responsibility for stimulating centrally developments in potentially effective practice, expanding the availability of promising programmes, and of robustly evaluating them. A strategic approach should be adopted to collating and analysing existing data, developing the evidence base, identifying gaps in knowledge about how best to treat young adults, providing incentives to governors and probation services for devising and testing new approaches, and disseminating good practice. The MoJ should examine whether a case can be made for investment to facilitate this through the £1.3bn estate modernisation budget, including through the creation of an equivalent of a pupil premium, both for prisons and for CRCs, in recognition of the behavioural challenges young adults pose, the opportunity to repair neurological impairments while their brains are still developing, and their need for more intensive support. (Paragraph 146)

31.Cross-government recognition must be given to the need to promote desistance among those involved in the criminal justice system by offering the possibility of extending statutory support provided by a range of agencies to under 18s to up to 25 year olds, including through legislative change if necessary. Young adults are treated distinctly by a range of other Government departments, including some which preside over dedicated policies which can hinder the chances of young adults who do not have support networks from desisting from crime. If young adults are to be given the best opportunities to become law-abiding there is a need for a coherent cross-departmental approach that recognises this and seeks to remove structural barriers to gaining sustainable employment, affordable accommodation and developmentally appropriate mental health services, for example, the lower minimum wage and housing and employment benefit entitlements. (Paragraph 147)

32.Legislative provision to recognise the developmental status of young adults may be necessary both to demonstrate political courage in prioritising a better and more consistent approach to the treatment of young adults who offend and to provide a statutory underpinning to facilitate the shift required within the range of cross-government agencies that support young adults. Nevertheless, we acknowledge the resource implications and re-structuring services might be costly to the public purse at least in the short-term, although we believe the cost-benefits are likely to make this worthwhile. (Paragraph 148)

33.Enabling young adults to form non-criminal identities following their involvement in the criminal justice system will require a change in the treatment of their criminal records. We support the Government initiative on banning the box—removing the requirement to disclose criminal convictions in application forms—and hope that it remains an imperative under the new Prime Minister, but reforms may need to go further, including legislative change for young adults to expunge records, incentives for employers to employ ex-offenders, and deferred prosecutions. We will consider this fully in our inquiry on criminal records. (Paragraph 149)

34.We note that the inclusion of maturity as part of a mitigating factor may have lessened the likelihood of age being taken into account in the sentencing of young adults. The Sentencing Council should conduct further research on the impact of this factor in sentencing decisions for 18 to 25 year olds. We would encourage the Director of Public Prosecutions to evaluate the impact of the inclusion of age and maturity in the Code for Crown Prosecutors to satisfy herself that its use reflects properly the maturity of young adult suspects, which may be hidden. (Paragraph 150)

35.There is sufficient flexibility within the community sentencing framework to enable developmentally appropriate practices to be adopted by probation services, underpinned by better assessment and incentives to develop and expand existing initiatives. (Paragraph 151)

36.The potential of young adult courts are worth testing, particularly if they can be developed cost-neutrally using the expertise of youth sentencers. If the results of the pilots and welcome evaluation are positive in terms of young adults’ experiences and outcomes, the Secretary of State for Justice, Lord Chief Justice, and HMCTS should facilitate such initiatives being adopted more widely. (Paragraph 152)

37.The current conditions in the custodial estate meant that opportunities are being missed to seek to repair the harm that young adults are likely to have experienced in their lives with the risk of hard-wiring challenging behaviours as full brain development is achieved. Imprisonment within unsafe conditions and without purpose is likely to compound their involvement in the system and at worst contribute to violence and further self-inflicted deaths. It is well-evidenced in Lord Harris’s review that policies and practices to safeguard young adult prisoners are under-resourced and hence inoperable. The MoJ and NOMS should either act urgently to recruit and retain more prison officers or the Government should seek to adjust the current sentencing framework to reduce the population to manageable levels by shifting to alternative community-based means effectively to promote public safety. (Paragraph 153)

38.Developing appropriate responses to young adults in the custodial estate is complicated by the existing legislative position for detention in a young offender institution for 18 to 20 year olds. The simplest resolution to this is to extend in the forthcoming reform bill the sentence up to the age of 25 and maintain dual categorisation in those institutions that have already been designated as such. The YOI element of the sentence must be given real meaning through the adoption of a strategic approach to the placement of young adults in appropriate accommodation according to their needs, the options for which are currently unduly narrow, and the development of new initiatives which are more appropriate to their needs. Before this can happen it is imperative that the inexcusable gaps in the research evidence regarding the best strategies for holding young adults in prisons are urgently addressed. This will necessitate the Ministry of Justice, NOMS and prison governors finding means of testing empirically various models of holding young adults, including an examination of the costs and benefits. This should include small dedicated units within prisons holding older adults; a small number of dedicated institutions; piloting of specialist dedicated officers with smaller caseloads, and enhanced provision of therapeutic support. Where young adults are held in mixed institutions there should be a recognised cap on numbers and benchmarking levels should reflect the need for better ratios of staffing. (Paragraph 154)

39.Whole prison approaches should be developed to reduce victimisation and bullying in prisons, within wider strategies on managing violence, to focus on minimising harmful behaviour and addressing its underlying causes through the widespread use of restorative justice and trauma-informed approaches. The IEP scheme should be replaced with a more sophisticated and flexible system of reward and incentives to encourage positive behaviour. Mechanisms should be found to expand within prisons existing promising programmes and focus violence reduction efforts on assessing needs, dealing with trauma and building life skills and resilience, with the provision of specialist support being made available for prisoners with unresolved and/or recent experiences of trauma, loss, abuse and bereavement. We welcome the NICE guidelines specifically for management of neuro-disabilities including brain injury in criminal justice system. The MoJ and NOMS should work with health services to incentivise an expansion of provision to address neuro-disabilities, mental ill health, and learning and communication needs based on a systematic assessment of need. (Paragraph 155)

24 October 2016