Children and Young People in Custody (Part 1): Entry into the youth justice system Contents

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4Diversion from formal criminal justice processing

25.The reduction in the number of children entering the criminal justice system is often attributed to the success of schemes that serve to divert children and young people from formal criminal justice processing. Various mechanisms exist.

Out-of-Court Disposals

26.In dealing with any offence committed by a young person under 18, the police have a range of options: no further action; community resolutions; youth caution; youth conditional caution; or charge.26 Dealing with some cases out of court has been a long-standing approach within the criminal justice system, and the current framework is laid out in the Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012.27 There are two statutory out-of-court disposals (OOCDs) for children - the youth caution and the youth conditional caution. Both count towards a person’s being a first-time entrant in the criminal justice system, and both are national recognised formal outcomes which can appear on a Police National Computer (PNC) check.28 There is also a non-statutory option, often referred to as a community resolution, which has greater variance across the country with a range of names and differing policies and processes. These outcomes do not count the person as a first-time entrant and do not appear on a PNC check.29

27.An out-of-court disposal can be considered once three tests have been satisfied: an offence has been committed; the offender has been identified; and the offender has accepted responsibility for the offence. The police are responsible for OOCDs but must inform the local YOT whenever a caution has been given and wherever they are considering a youth conditional caution.30 YOTs can be involved in decision-making on whether an OOCD is suitable. If a youth caution or community resolution is given, a child is not required to do any work with the YOT, but if a child has been given a youth conditional caution, involvement is mandatory and can be enforced.

28.Community Resolutions can offer an alternative way of dealing with less serious crimes without putting a child or young person through the formal criminal justice process that can result in a criminal conviction. Community resolutions are informal and non-statutory, and should not result in a criminal record.31 Community Resolutions operate for under-18s in a variety of models across the country and practice is variable; they are sometimes referred to as ‘point-of-arrest’ diversion.

29.This type of diversion is not a statutory requirement of youth offending teams. The Centre for Justice Innovation, in their toolkit, ‘Valuing youth diversion: A toolkit for practitioners’ note that, while point-of arrest diversion schemes are not a statutory requirement, they are a vital part of the effort to prevent offending by children and young people, which is a principal aim of the youth justice system, as set out in the Crime and Disorder Act 1998.32

30.The Youth Justice Board’s National Standards specify that youth offending team management boards should have mechanisms in place which provide assurance that point-of-arrest diversion is evident as a distinct and substantially different response to formal out-of-court disposals.33 The YJB further note that “all action should be taken to promote diversion into more suitable child-focused systems, and the promotion of positive behaviour”.34

31.Phil Bowen, Director, Centre for Justice Innovation, told us that that “the youth justice system in general, through the adoption of things such as pre-court disposals and point-of-arrest diversion, has done a great job, as the previous panel said, in reducing the number of children who come into any form of contact with the criminal justice system.”35 The Association of Youth Offending Team Managers state that “There has been a significant decrease in the numbers of children entering the criminal justice system, especially in areas where the youth offending team is resourced to provide diversion”.36

Problems with out-of-court disposals

Data

32.In March 2018, HM Inspectorate of Probation and HM Inspectorate of Constabulary and Fire & Rescue Services published a thematic inspection report into out-of-court disposal work in youth offending teams. The inspection found “clear leadership of out-of-court disposals in local partnerships” and found that the “quality of intervention work in out-of-court disposals was good and effective” and that in many cases decision-making was done jointly with the police and YOTs, but it also commented that the voice of the child was not heard effectively in the final decision-making process. The report highlighted a lack of clear evidence of the effectiveness of OOCDs, particularly community resolutions (where data is not recorded centrally). The report acknowledged worldwide evidence that most children who offend will stop by their early 20s, and data suggesting that work done by YOTs to divert children is effective. It said that the cases inspected indicated that short-term reoffending rates were lower following community resolution that involved YOT intervention than those that follow caution or conditional caution, and rates for both were lower than for reoffending following conviction.

33.Justin Russell told us:

“There is no national data on how many community resolutions are being given out and there has been no national evaluation of their effectiveness either. They are an increasingly big proportion of all the YOT case loads we are looking at. We estimate that about 40% of all out-of-court disposals are now informal community resolutions.”37

Mr Russell added that more evaluation was required: “ We should be looking at impacts on reoffending rates and at interim outcomes such as the young person’s health or their involvement in education or other services. At a local level, some YOTs are able to provide us with data on that, and, anecdotally, it seems quite encouraging. We have been saying for years that we need a proper national evaluation of their impact and effectiveness.”38

34.Others have also raised concern over the lack of data. The Centre for Youth and Criminal Justice note: “While Diversion is of course the right approach, as evidenced by ESYTC [Edinburgh Study of Youth Transitions and Crime] there is very little evidence that says the interventions we have for Diversion are effective. More research is needed to evaluate and evidence the alternative services available to children.”39 Phil Bowen, Director, Centre for Justice Innovation, notes that “the Youth Justice Board does no national data reporting on diversion cases, so at the moment we do not know enough about who the kids are and what their outcomes are”.40

35.The Magistrates’ Association has concerns about the appropriateness of OOCD use, however, noting:

“We are particularly concerned about the use of OOCDs in relation to violent offences, such as knife crime, and would argue that crimes of this nature are more appropriately dealt with by a court. As identified in a recent joint inspectorate report on OOCD work in youth offending teams, whilst work to divert children away from entering the criminal justice system is commonly recognised as a success story, it is difficult to prove this empirically due to the lack of systematic monitoring.”41

36.We recognise the important role that out-of-court disposals, both formal and informal, play in diverting children from formal criminal justice processes and consider them an integral part of the youth justice system. We note that data collection on the effectiveness of such schemes is patchy at best, particularly for informal, non-statutory diversion schemes, which make up around 40% of all out-of-court disposals. Although data is collected on formal out-of-court disposals, we have an incomplete picture of how many children are diverted from entering the criminal justice system.

37.We recommend that the Ministry of Justice and Youth Justice Board work together to start collecting data centrally on non-statutory, informal diversion schemes, including (but not limited to) data on how many complete a diversion scheme, the impact on reoffending, health outcomes and education outcomes.

38.We agree with the Chief Inspector of Probation’s recommendation that a national evaluation of the impact and effectiveness of out-of-court disposals be carried out. We recommend that the Ministry of Justice commission such an evaluation, which should consider the impact and effectiveness of formal and informal out-of-court disposals.

Inconsistencies in practice and provision

39.Crest Advisory note that “the diversion of children away from custody has been far more successful in some areas than others”.42 Barnardo’s note that diversion provision remains inconsistent.43 The Standing Committee for Youth Justice adds: “There is much existing positive practice in the diversion of children from the formal justice system, and the numbers of First Time Entrants has reduced by 80% across the last twelve years. But diversion provision is inconsistent”.

40.Regarding non-formal diversion schemes, the Centre for Justice Innovation mapped out the provision of youth diversion schemes across YOTs in England and Wales. Their research found that 115 of 152 YOTs in England and Wales operate a point-of-arrest diversion scheme. Some 18 had a diversion scheme but did not provide details. Nineteen confirmed they had no diversion scheme.44 The research showed that youth diversion is widely available but variable: 31% of the responding schemes do not require the child to admit guilt to be eligible for diversion; 24% allow children who accept ‘responsibility’ rather than ‘guilt’ to be diverted; and 39% divert for low-level offences only.45 Commenting on this research, the Youth Justice Legal Centre, part of Just for Kids Law, state:

“The mapping of the various diversion schemes that operate across England and Wales has shed light on an area which has previously been a bit of an enigma. The fact that 19 YOTs don’t have diversion [point-of-arrest] schemes at all is shocking and supports the notion that outcomes for children in the criminal justice system are to some extent a postcode lottery”.46

41.HM Inspectorate of Probation in its Annual Report: inspection of youth offending services (2018–19), note that “the lack of national guidance on how to work with children and young people ‘out of court’ results in an inconsistent approach across the country. This does children and young people a disservice”.47 HM Inspectorate of Probation further state that: “We would support development of a national approach to the decision making and scope of out of court disposal schemes”.48 The Centre for Justice Innovation also recommend the development of national guidance:

“We now call on national policymakers to take action to strengthen youth diversion by promoting clearer national guidance that reflects current best evidence; additional examples of good practice, a funding system that properly reflects youth diversion work; and a new set of data recording standards and systems to accurately record and publish youth diversion activity.”49

42.We note that there are inconsistencies in the provision and practice of diversion schemes across England and Wales. We recommend that the Ministry of Justice and Youth Justice Board work together to set out national guidance on out-of-court disposal work. As suggested by the Centre for Justice Innovation, this guidance should include an evidence base for out-of-court disposals, examples of good practice and a framework for data recording.

Funding

43.Another issue identified is the availably of funding to youth offending teams for informal diversion schemes. Phil Bowen, Director of the Centre for Justice Innovation, told us: “One of the issues is that currently the funding formula for YOTs does not recognise all the work they are doing on pre-court informal diversion. One of the conversations that we are currently having with the Ministry is how that work is represented in how they are funded, because we certainly know that in some areas some of those schemes have suffered from a lack of funding.”50

44.The Prison Reform Trust note: “Proper diversion, as against simply ignoring low level offending amongst children, is not cheap. Youth Offending Teams across the country report a reduction in local funding for this work, and the government’s own funding, which is channelled through the Youth Justice Board’s youth justice grant to local authorities, has similarly been subject to very significant reductions that have seen it halved in real terms over the past decade”.51 The Standing Committee for Youth Justice state that “Further investment is needed to ensure a full range of diversion services are available that are tailored to meet underlying needs of individual children as well as communities.”52

45.The Youth Justice Board also raise the issue of funding:

“Despite reductions in funding, YOTs’ statutory requirements have remained the same and the non-statutory work to support prevention and diversion, has increased in demand. In 2017, a survey of youth justice services: prevention of offending identified long term budget cuts to YOTs and children’s services as having an adverse impact on their ability to deliver key preventative work.

“Investing in prevention and support upstream, allows individuals who would otherwise not meet the support thresholds for statutory services to get the support they need earlier. Investment in early interventions produces savings later by reducing the need for individuals to access statutory services, and would, most importantly, positively impact the lives of children, families and the wider community.”53

46.There is significant support for diversion and demand for informal, non-statutory services. For diversion schemes to function well, they need to be sufficiently funded. Investment in upstream service provision should be prioritised. We recommend that the Ministry of Justice work with the Youth Justice Board to review current funding arrangements and ensure that funding adequately reflects the pre-court diversionary work being carried out by youth offending teams.

Liaison and Diversion

47.The Ministry of Justice state that “Diverting children away from the Criminal Justice System is a priority and interventions should take place as early as possible”.54 As well as out-of-court disposals, other notable diversion schemes include Liaison and Diversion services which are an all-age service operating at police stations and courts across England, with 100% coverage.5556

48.Additionally, in 2019, NHS England commissioned 13 new regional Community Forensic Child and Adolescent Mental Service (Community FCAMHS) Teams, covering the whole of England.57 The Royal College of Psychiatrists note that “These are tertiary referral services accessible to all agencies (e.g. CAMHS, social services, YOTs, prisons, courts, solicitors, education, health commissioners etc.) within a region that may have contact with young people exhibiting behaviour that puts them at risk of contact with criminal justice system or with young people in the youth justice system who have mental health difficulties.”58

49.In regard to the Youth Liaison and Diversion Service, the Ministry of Justice state that “they help the judiciary divert vulnerable offenders to the most appropriate place of treatment at sentencing, which might include community treatment not custody”.59 The Royal College of Psychiatrists state that:

“Further downstream on the pathway to custody, Youth Liaison & Diversion Services (YL&DS) aim to improve early identification of a range of vulnerabilities, (including but not limited to mental health, neurodevelopmental, substance misuse, personality disorder and learning disabilities), in people coming into contact with the criminal justice system. This often involves seeing young people whilst they are in Police custody or engaging with them soon after police contact.

Following assessment by a YL&D worker, individuals can be referred to appropriate treatment services so contributing to an improvement in health and social care outcomes, which may in turn positively impact on offending and re-offending rates.”60

50.The Ministry of Justice state that, “In 2018/19, 12,685 children and young people were seen by L&D services. Of these 5,616 children and young people were identified as having a mental health issue and 951 referrals for mental health support for children and young people were made.”61 The Committee questioned Lucy Frazer QC MP, Minister of State for Justice, on why just under 17% of those identified as having a mental health issue were referred for mental health support as a consequence of the liaison and diversion schemes. She stated that “it is likely to be the case that they do not reach the threshold for support”.62 Caroline Twitchett, Children’s Quality Lead, NHS England and NHS Improvement further stated that:

“One of the issues with young people is that the liaison and diversion schemes have quite acute antennae for multiple vulnerabilities, and one of those is related to psychological wellbeing and mental health. When it says that, it is actually about a successful transfer or referral to the community child and adolescent services. A lot of them will not meet those thresholds; we accept the fact.”63

51.Dr Alexandra Lewis, Chair, Adolescent Forensic Faculty Special Interest Group, Royal College of Psychiatrists, told us:

“One of the problems we find is that many of the young people who come into contact with the criminal justice system have multiple needs, but those needs might be sub-diagnosis; they might not reach the threshold to get a diagnosis. If you are just sub-threshold for three or four different diagnoses, perhaps autism and ADHD, and you come from an impoverished background, and you are out of school, the sub-threshold diagnoses become relevant, but they do not meet the criteria to be seen by generic child and adolescent mental health services. That is quite a big gap. We have children with needs, but nobody is picking them up.”64

52.The effectiveness of Youth Liaison and Diversion Services and how many people have been diverted as a consequence of these services is currently unknown. Lucy Frazer told us that research was being carried out, but it is related to the adult and not youth estate.65

53.We agree with the Ministry of Justice’s priority of diverting children away from the criminal justice system and support early intervention work such as Liaison and Diversion schemes. We are aware that Youth Liaison and Diversion schemes may not be included in the current evaluation taking place of adult liaison and diversion schemes and recommend that the Ministry of Justice commission an evaluation into the effectiveness of Youth Liaison and Diversion schemes. This evaluation should include the number of children who have been diverted away from the criminal justice system as a result of such schemes.

54.We are aware that children coming into contact with the criminal justice system may not meet the criteria for generic child and adolescent mental health services, despite presenting with multiple needs. We recommend that the Ministry of Justice increase access to mental health support for all children and young people who need it. The Ministry should set out how this will be achieved and resourced.