Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8): Sentencing and Remand of Children and Young People Contents

---

2Custodial sentences and remand for children

16.The Bill contains measures that would increase the length of time children would spend in custody for certain offences. Policies that change the length of time children will spend in custody engage human rights; the UNCRC states that detention of a child “must be a measure of last resort and for the shortest appropriate period of time”.25 This is a requirement that is obviously open to wide interpretation.

Mandatory minimum sentences

17.Mandatory sentencing operates on the principle that where a certain offence is committed an automatic mandatory minimum custodial sentence is justified. This is irrespective of the particular circumstances of the offender, the manner in which the offence occurs, or the victim affected. The law sets out minimum custodial sentences that must be handed down by the court for a small number of specific offences such as drug trafficking and some offences involving a weapon or bladed article. Currently, the court can deviate from the mandatory minimum sentence when it is of the opinion that there are “particular circumstances which relate to the offence or to the offender” which would make it “unjust” to apply the minimum term. This preserves a balance between the legislative intention to impose a particular custodial sentence and ensuring that the courts are able to impose a sentence that meets the requirements of justice in the case before them.

18.Clause 101 of the Bill would allow the court to diverge from mandatory minimum sentences only where there are “exceptional circumstances” that relate to the offence or the offender which would make it unjust to apply the minimum sentence.26 This raises the threshold from the current standard of “particular circumstances”, which is undefined in legislation and open to judicial interpretation. The term “exceptional circumstances” is not defined in the Bill or explained in the Explanatory Notes, although “exceptional circumstances” are the criteria already used for offences involving a firearm.

19.The change would apply to sentences received by children aged 16 and 17 years old for certain offences involving knives or other offensive weapons:

a)a repeat offence involving possession of a weapon or bladed article in a public place or on education premises,27

b)or any offence of threatening someone with a weapon or bladed article in a public place or on school premises.28

The minimum sentence for children convicted of these offences is a four-month detention and training order (i.e. a custodial sentence).

20.The Government’s 2020 White Paper, A Smarter Approach to Sentencing, (the White Paper) had stated that the Government would seek to “reduce the occasions in which the court would depart from the minimum custodial sentence, with the aim of reducing the prospect that the court would depart from the minimum term”.29 The White Paper continues:

“Whilst we are raising the bar for courts to depart from giving the minimum sentence for these serious crimes, they retain the ability to do so where the circumstances warrant it. The courts will continue to take the child’s welfare and needs into consideration when deciding on the most appropriate sentence.”30

21.The Sentencing Council Guidelines are clear that the interests of justice are best served by courts exercising discretion when deciding on the sentence for a child: “(W)hile the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused.”31 This allows the complex needs of many children who interact with the criminal justice system to be appropriately considered in sentences. We heard about the difficult circumstances of such children from Hazel Williamson, Head of the Association of Youth Offending Team Managers. She referred to a report by Dr Alex Chard, Punishing Abuse, which was commissioned by the West Midlands Combined Authority in collaboration with the Office of the Police and Crime Commissioner.32 The report looked at 80 children known to the Youth Justice system:

a)71 of the 80 children had been abused;

b)almost half had witnessed domestic violence;

c)over 30% of them had witnessed, or been a victim of, child sexual exploitation;

d)79% were diagnosed with a physical, mental, neurodivergent or learning disability;

e)over 50% had been referred to child and adolescent mental health services. Hazel Williamson told us that this “is five times more than is found in the general population of children;”33

f)Over 90% had at some point been a child in need, a child in need of protection or a child in the care of the local authority.

22.The limitation on judicial discretion proposed by the Bill also comes at a time when there is growing awareness of child criminal exploitation: The Children’s Society estimates that there are 4,000 children being criminally exploited in London alone.34 In these cases, the line between criminal and victim can be blurred.

23.Claudia Sturt, Chair of the Youth Justice Board, which is responsible for overseeing the youth justice system in England and Wales, explained why she felt the standard of “exceptional” was inadequate:

“I recognise that under these provisions sentencers can depart from minimum terms in exceptional circumstances, but very clearly what we are being offered here is a default position to impose them, and that is what most sentencers will do unless they regard age, vulnerability and maturity as exceptional. It is difficult to envisage that being the case, because those are the common factors within this cohort. Only if we understand the circumstances that lead an individual child to offend can we hope to prevent a repeat of that kind of behaviour, and minimum sentences do not lend themselves well at all to that approach. You may have an example where perhaps a child has been groomed, exploited or even coerced into carrying a knife. Do we consider those factors to be exceptional, because they are not unusual?”35

24.The General Comment from the Committee on the Rights of the Child has already strongly advised against applying mandatory minimum sentences to children.

“Mandatory minimum sentences are incompatible with the child justice principle of proportionality and with the requirement that detention is to be a measure of last resort and for the shortest appropriate period of time. Courts sentencing children should start with a clean slate; even discretionary minimum sentence regimes impede proper application of international standards.”36

25.The changes in Clause 101 could make it more difficult to interpret mandatory minimum sentences compatibly with the guidance from the Committee on the Rights of the Child, because it would be harder for courts to adjust their sentences to the child in front of them than under the existing “particular circumstances” provision.

26.Raising the threshold at which the court can take into account the individual circumstances of each child offender risks undermining the principle put clearly by the Sentencing Council that sentencing should be ‘individualistic and focused on the child or young person, as opposed to offence focused.’37 Dr Janes described the limiting of judicial discretion as “inherently incompatible” with the ‘best interests principle’ - the legal duty that the best interests of the child be a primary consideration in any action by a state body including a court.38 These principles reflect international standards and are fundamental protections of the rights of the child.

27.Clause 101 would allow a court to diverge from imposing a minimum custodial sentence for certain crimes involving weapons committed by those aged 16 and 17 only where there were “exceptional circumstances”. This increase in the limitation on judicial discretion conflicts with the need for sentencing decisions to be individualised and for the welfare of the child to be a primary consideration. Custody must remain a measure of last resort. Clause 101 of the Bill should be amended so that no children will be affected by its provisions.

Changes to Detention during Her Majesty’s Pleasure

28.Detention during Her Majesty’s Pleasure (DHMP) is the sentence imposed on someone who commits murder when aged 10 to 17. It is effectively a life sentence, as the offender serving a DHMP sentence will never be released from prison if a parole board does not consider it safe for them to be released. After a set number of years that must be served in prison (the tariff), an individual sentenced to DHMP is eligible for periodic reviews of whether they are safe to be released. When someone sentenced to DHMP is released, they will be subject to licence conditions. If they go on to break any of the conditions imposed on them, they could be returned to detention. Between 2017 and 2019 there were 101 DHMP sentences handed down, all of which went to boys.39

29.Claudia Sturt recognised the devastating impact murder has on the families of victims:

“The first thing I would like to acknowledge is that the grief suffered by bereaved families as a result of crime can be absolutely devastating. No sentence, no matter how long, is guaranteed to relieve the pain of losing a loved one. Of course, victims’ families deserve the greatest possible empathy, compassion and space to work through a multitude of complex thoughts and feelings that they necessarily will have, and they should receive professional support to help them process and recover from the trauma of their loss.”40

30.Clause 104 of the Bill introduces a range of starting points for tariffs for children sentenced to DHMP. When setting the tariff period, the court must first allocate a starting point, then consider any aggravating or mitigating factors, plus the effects of the defendant’s previous convictions, any plea of guilty, and whether the offence was committed on bail. Currently, the starting point for the courts when setting the tariff is 12 years for children of all ages–the Bill proposes changes to this starting point depending on the age of the child. The changes would closer align starting points for older children with equivalent offences for adults whilst reducing them for younger children. It also introduces variation based on the severity of the offence, as already exists for adults. The table below sets out the new starting points:

Table 1: Tariff starting points for those sentenced to DHMP under the PCSC Bill

Age of offender when offence committed	Starting point for an offender aged 18 or over would be 30 years	Starting point for an offender aged 18 or over would be 25 years	Starting point for an offender aged 18 or over would be 15 years
17	27 years	23 years	14 years
15 or 16	20 years	17 years	10 years
14 or under	15 years	13 years	8 years

Source: Commons Library, Police, Crime, Sentencing and Courts Bill: Part 7 - Sentencing and release, Briefing Paper Number 9161, 12 March 2021

31.Most children sentenced to DHMP are in the older age brackets and would face longer tariffs as a result of these changes, although some younger children may receive shorter tariffs.41 Of the 101 DHMP sentences between 2017 and 2019, 59% went to those aged 15 to 17; 39% went to those aged 18 to 20 (the offence having been committed when they were under 18); and only 2% went to those aged 12 to 14.42

32.The White Paper explains that the purpose of changing the DHMP tariffs is because:

the fixed 12-year starting point for children does not account for the seriousness of the crime, nor does it reflect the different stages of development children go through between the ages of 10 and 17.43

33.Article 1 of the UNCRC is, however, clear that “a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier”. We received evidence from the Transition to Adulthood alliance that the changes to the tariffs “represent a worrying trend in reversing distinctions between the youth and adult justice systems and undermines international obligations.”44

34.A 17-year-old, a week before they turn 18, is likely to have more concept of responsibility than an 11-year-old. However, courts can already take this into account in their sentencing decisions: the White Paper acknowledges that “courts can set a tariff higher or lower than the starting point based on aggravating or mitigating factors, such as: maturity; behaviour toward the victim; or the presence of learning disabilities or other health concerns.”45 The Sentencing Council guidelines explain that: “When considering a child or young person’s age their emotional and developmental age is of at least equal importance to their chronological age (if not greater).”46

35.The Youth Justice Board told us that they opposed the introduction of a gradient based on age in Clause 104, because it:

“does not treat them (the children) as individuals and does not take into account their childhood or developmental stage; it treats them as if they are adults … That is at odds with the convention, which very clearly defines that a child is anyone under the age of 18. There is no sliding scale below the age of 18 at which it is acceptable to treat somebody as more or less of a child; it is everybody under the age of 18.”47

36.Furthermore, the Committee on the Rights of the Child has in the past recommended that all forms of life imprisonment, including indeterminate sentences, for those below the age of 18 at the time of the commission of the offence be abolished.48 Concluding observations on the UK were issued by the Committee on the Rights of the Child in 2016–2017 which included a recommendation that the UK should:

“Abolish the mandatory imposition of life imprisonment for children for offences committed while they are under the age of 18”49

37.The Alliance for Youth Justice’s verdict on the change to tariffs was that they are:

“entirely in contrast to the CRC’s Concluding Observations to the UK which urged the government to abolish these sentences, with the CRC’s General Comment highlighting how “life imprisonment makes it very difficult, if not impossible, to achieve the aims of reintegration.”, and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment finding that: “Life imprisonment and lengthy sentences… are grossly disproportionate and therefore cruel, inhuman or degrading when imposed on a child.”50

38.Life sentences for children have been criticised by the Committee on the Rights of the Child, whose interpretation of the UNCRC, while not legally binding, is authoritative. Increasing the length of time children must spend in custody before they can be considered for release can only be seen as making DHMP even less aligned to the rights in the UNCRC. The Bill should be amended to remove any tariff starting points above the current 12 years.

39.Courts already have discretion to consider the different developmental ages of children and reflect this in the tariffs they hand down for DHMP. Mandating courts in legislation to treat older and younger children differently focuses too much on age, and not enough on maturity or circumstance. It brings tariffs for older children so close to those faced by adults that the distinction between a child and an adult risks being lost. However, we accept the imposition of shorter tariff periods for the youngest offenders as a step towards the recommendations of the UNCRC. The increases to tariff starting points based on age should be removed from the Bill.

Minimum term review for those sentenced to DHMP

40.Individuals serving DHMP may apply for their tariff to be reviewed. Previously, any individual serving a DHMP sentence could apply to the High Court for a review of the length of their tariff at the half-way point of the tariff period, and every two years after that if the initial application was unsuccessful. This policy was changed in February 2021 so that those sentenced when over 18 would no longer qualify for any review of their tariff. Tariff reviews can result either in the minimum term being reduced, or it remaining the same. Fewer than 10% of those sentenced to DHMP take up the option of the additional review.51 The Howard League explained in written evidence:

“young people can only have their minimum term reduced if they have a significant change in maturity and outlook, if continued detention would seriously undermine their development in ways which cannot be mitigated in prison, if there is new evidence about the circumstances of the offence or if they have made exceptional progress in prison.”52

41.Clause 105 of the Bill puts the existing DHMP tariff review policy into statute. It also changes the current policy to reduce the opportunities for those sentenced to DHMP when aged under 18 to have the length of their tariff reviewed:

a)Someone under 18 at the time of sentencing still qualifies for a review half-way through their tariff.

b)Only those still under 18 two years after an unsuccessful review at the halfway point could apply for a further review (the additional review).

42.The age of criminal responsibility is 10 in England, Wales and Northern Ireland, and 8 in Scotland. It is theoretically possible, but it would be exceedingly rare, for anyone to commit a murder, be sentenced to DHMP, and still be under 18 two years after the halfway point of their tariff so as to qualify for the additional review. Dr Janes told us that she “cannot imagine a circumstance, if this provision is implemented, where someone would get a second bite of the cherry, as it were.”53 The effect of this clause is therefore to reduce the frequency of reviews of minimum terms and all but remove the possibility of a review beyond the half-way point.

43.The Government has argued that this is a fairer system because it recognises that “offenders who were sentenced to DHMP as children but have since turned 18 in custody are now adults and have passed the age where significant development occurs, while still accounting for the fact that they were children and still maturing when the crime was committed, and they were sentenced”.54 The Howard League for Penal Reform disagreed with this rationale. They referred us to the judgment of Lord Bingham in a case concerning the right to a minimum term review for a young adult who had received a DHMP sentence for a murder committed four months before her eighteenth birthday. Lord Bingham had concluded that:55

“The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation. It would in many cases subvert the object of this unique sentence if the duty of continuing review were held to terminate when the child or young person comes legally of age”56

44.The changes are also intended to limit the distress the review process can cause victims’ families, who are contacted every time a review is initiated, and to provide them with greater certainty.57 Claudia Sturt did not support the changes and suggested alternatives that could lessen the distress caused to families without removing the reviews. She told us:

“An example might be to establish with bereaved families how often they wish to be contacted and then to provide them with periodic updates rather than updates triggered by processes. In that way we can take into account their preferences for frequency. We need to make sure that contact with those families is high quality, empathetic and honest, because those are the factors that will help to promote healing for those families within this process, but I feel very strongly that removing opportunities for review of tariff lengths is not the solution to dealing with the grief and distress of bereaved families.”58

45.The Government should seek to identify changes in the process of DHMP tariff reviews that could lessen the distress caused to the families of victims. A child who commits an offence was still a child when they did so, even if they reach the age of 18 whilst awaiting sentence or in custody. DHMP sentences should remain under continuing review. The Government should return to permitting the possibility of a reduction in the tariff at the half-way stage and beyond for those who committed relevant crimes as children.

Changes to time spent in custody

46.Clause 107 would change the custodial period for children serving sentences of detention of over seven years when sentenced under section 250 of the Sentencing Act 2020. The Bill would require children serving these sentences to spend two-thirds of their sentence in custody, rather than half as is the case now, with the rest of their sentence spent on licence in the community.59 Sentences of detention under section 250 allow for a child to be sentenced to a custodial term up to the maximum that would be available in respect of an adult offender for the relevant offence. They are available in respect of offences that, if committed by an adult, would be punishable with a sentence of 14 years imprisonment or more and in respect of certain sexual and firearm offences, where the courts consider neither a youth rehabilitation order nor a detention and training order is suitable.

47.The ECHR Memorandum on the Bill, explains the Government’s reason for the change is to ensure:

“that serious sexual and violent offenders serve sentences that truly reflect the severity of their crimes–helping to protect the public and giving victims confidence that justice has been served.”60

48.The Sentencing Council Guidelines reflect that “the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish”.61 This guidance reflects Article 40 of the UNCRC, which emphasises “the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”.

49.The UNCRC is clear that detention must be a “measure of last resort and for the shortest appropriate period of time.” A policy to increase the length of time children spend in custody requires proper justification. The reason set out in the ECHR memo, quoted above, refers to public protection but the Youth Justice Board told us that they:

“believe there are likely to be risks associated with increasing the time spent in custody and reducing the amount of time monitored and support in the community. These are likely to adversely impact on positive outcomes and public protection.”62

50.The White Paper also argued that, “(S)pending longer in custody also means that those who commit offences will have more time to focus on rehabilitative interventions and education, as well as longer to prepare for life in the community”.63 Contrary to this argument, we heard that spending longer in custody hinders reintegration into society. The Transition to Adulthood Alliance, for example, said:

“Increasing the custodial portion of the sentence has a corresponding impact on shortening post-sentence probation supervision which will impact on young adults particularly detrimentally. This makes no sense for rehabilitation because: there will be less time to build stability in employment, accommodation and relationships which are known to have the greatest impact on subsequent offending”64

51.Similarly, Hazel Williamson, told us this would worsen reoffending rates:

“The longer children spend in custody, the less chance they have of that opportunity to reintegrate into society… We know that for children truly to reintegrate they need that support and time out in the community with specialist providers who can support them to meet all their physical and psychological needs.”65

52.We also heard that increasing the time child offenders spend in prison means more children will reach adulthood while in custody and will be transferred to the adult estate. As Dr Janes told us:

“Lots of children who are on these serious sentences, who will have been out of circulation and who will be coming back into society with a determinate sentence, will now find that they are transferred to the adult estate, where they lose lots of the personal, social and emotional support that they were entitled to as children and, when they come out, they will not have that scaffolding around them of social care support, either at all or for as long as they ought to, which is not good for the children, and it is not good for anybody.”66

53.The Youth Justice Board also fear that, rather than supporting children:

“increasing the length of time a child spends in custody may instead serve to remove a sense of hope and cement a pro-criminal sense of identity. These factors are likely to contribute to increased likelihood of re-offending upon release.”67

54.Finally, Dr Janes also told us how she feared the reduction in the length of time offenders are monitored in the community could lead to a loss of confidence from victims because:

“it is really important, particularly from a victim perspective—knowing that, once a person is out, they are being properly supervised and managed.”68

55.The argument for reducing the amount of time children spend in custody is strengthened when the conditions in the youth estate are poor, and the harmful consequences for children significant. A recent report from Crest Advisory, a criminal justice strategy and communications consultancy, drawing on the experiences of practitioners and experts found that “the safety and overall quality of youth custodial institutions has declined dramatically over the last decade”.69 In June this year, it was announced that all children would be removed from Rainsbrook Secure Training Centre after an Ofsted inspection found appalling conditions there. This included children being kept in their rooms for up to 23.5 hours a day.70 In August 2021 an inspection of Chelmsford Young Offenders Institution found concerningly similar conditions, with “many prisoners locked in their cell for almost 23 hours a day. This reflected the COVID-19 restrictions, but even in 2018 many prisoners were locked in their cell for 22 hours a day.”71 The number of self-harm incidents in youth custody also increased by 35% last year alone, to around 2,500.72 The Youth Justice Board expressed the view that:

“Sentencing children to longer periods in custody in environments where they may feel unsafe is difficult to reconcile with promoting their dignity or worth as specified under Article 40 nor Article 37(b) [of the UNCRC].”73

56.It is particularly important that for serious child offenders, there is a clear focus on rehabilitation and reintegration into society. Clause 107 is likely to shift the focus towards punishment. This may well be counter-productive in reducing reoffending. Children sentenced to detention under section 250 of the Sentencing Act 2020 should, as they do now, spend half the sentence in custody and half being monitored in the community to support their reintegration into the community.

Remand

57.Clause 132 would change the use of remand. In relation to children, ‘remand to custody’ (generally referred to as ‘remand’) is when a child who has been accused of a crime is sent to youth detention accommodation while awaiting trial or sentence, rather than being released on bail or looked after in local authority accommodation.74 The Explanatory Notes to the Bill state that the changes “aim to encourage courts to impose custodial remand only where absolutely necessary, while ensuring the public remains safe.”75 This addresses a number of issues identified in the White Paper: that unnecessary exposure to custody on remand has detrimental impacts on children; that, in contrast to the reduction in the numbers of children in prison following sentence, there has been a recent increase in the number of children held on remand; and that two thirds of remanded children do not go on to receive a custodial sentence, which suggests that many children are being remanded to custody unnecessarily and not in keeping with the ‘last resort’ principle in the UNCRC.76

58.Clause 132 would tighten the existing legal tests that must be met before a child can be remanded to custody.77 These tests already impose a high threshold, requiring inter alia that remand is necessary to protect the public from death or serious personal injury or to prevent further imprisonable offences and either

a)that the child is charged with a particularly serious offence;78 or

b)that they have a real prospect of receiving a custodial sentence and have a recent history of absconding or committing offences while on bail or remand.

59.Clause 132 would make the following changes:

a)No child would be remanded into custody unless the court considers that the prospect of the alleged offence resulting in a custodial sentence is ‘very likely’;

b)The court must also be satisfied that the risk posed by the child cannot be managed safely in the community; and

c)When considering whether the offender has a history of absconding or committing offences while on bail or remand, the court must be satisfied that the history is both recent and significant and whether it is relevant in the circumstances.

d)A new statutory duty is also imposed on the court to consider the welfare and best interests of the child when deciding whether to remand them to custody. This reflects the welfare principle set out in Article 3 UNCRC and section 44 of the Children and Young Persons Act 1933 and promotes a ‘child first’ approach to decision-making.

60.The Youth Justice Board in evidence to the Public Bill Committee stated that they “welcome the proposal that there be a statutory duty for the court to consider the child’s welfare and best interests when applying the prospect of custody test.”79 Similarly, in evidence to us Pippa Goodfellow considered the changes a “really welcome move in the right direction” although she wished the changes had gone further.80

61.We welcome the changes to remand made under Clause 132. They aim to divert children from custody where possible and are in keeping with the principle in the UNCRC that custody be a measure of last resort and for the shortest appropriate period of time. The introduction of a statutory duty to consider the welfare and best interests of the child is particularly welcome, as is the requirement for courts to provide reasons when they remand a child to custody.

Disproportionality

62.There are high rates of ethnic disproportionality in the youth justice system, most starkly for Black children, as summarised by Youth Justice Board:

“Ethnic disproportionality is seen at many stages of the YJS (youth justice system). The proportion of Black children arrested has been steadily increasing over the last ten years. While the number of FTEs (first time entrants) from a Black background has decreased compared with ten years ago, the proportion they comprise of all child FTEs has increased, from 9% to 16%. The proportion of Black children given a caution or sentence has doubled over the last ten years and the proportion of Black children on remand in youth custody has increased to over a third.”81

63.A similar increase in disproportionality has been seen in the use of custody. In March 2010 28% of children in custody were from Black, Mixed, or Asian and other background. In March 2020 this proportion had increased to 52%.82 The Government recognise that disproportionality is a significant problem. In their December 2017 response to the Lammy Review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System (‘the Lammy Review’) they committed to embedding a programme of work to address racial disparity in the criminal justice system (including the youth justice system). The most recent update on this programme was published in February 2020.83 Despite these efforts, the disproportionality in the criminal justice system has worsened since the Lammy Review, as David Lammy noted in evidence to us as part of our inquiry in to ‘Black people, racism and human rights’ in 2020.84

64.The Government has nevertheless indicated that the changes that will be made by the Police, Crime, Sentencing and Courts Bill will disproportionately penalise those groups that are already overrepresented in the youth justice system. The Equalities Impact Assessment which accompanied the Bill stated that the Government “believe that children who are older, Black, Asian, and Minority Ethnic (BAME) and male are more likely to be affected”.85 The Government argue the Bill will disproportionately affect those from minority backgrounds “because they are over-represented in the youth justice system”.86

65.The changes in the Bill focus on the most serious offences and those involving weapons, including knives. Analysis by the Youth Justice Board found that, compared to white children, those from all minority ethnic groups “are convicted of offences with a higher average severity” and “offences that are more likely to involve a knife”.87 The difference is most stark for Black children. Crucially, the report found that while Black children are more likely to be sentenced for offences that attract harsher sentences, this did not account for why Black children receive more custodial and harsher sentences than white children to the extent that they do:

“Unlike for other minority ethnic groups, the differences in demographics and offence-related factors, and practitioner-assessed factors cannot fully explain why Black children receive fewer first-tier outcomes and more custodial sentences. Black children are between 2 and 8 percentage points more likely than White children to receive a custodial sentence when controlling for all available variables. Demographics and offence-related factors, along with practitioner-assessed factors halve the original size of the disproportionality but we could not identify the factors, other than ethnicity, that can explain the remaining level of disproportionality.”88

66.Article 14 ECHR protects against discrimination in the enjoyment of other ECHR rights, such as the right to liberty (Article 5 ECHR) and the right to respect for private and family life (Article 8 ECHR), on grounds including race or ethnicity. This includes indirect discrimination; where a measure that applies more widely has a particularly negative effect on a particular group. Any measures that will unequally affect different groups in the enjoyment of their ECHR rights will only be lawful if they represent a proportionate means of achieving a legitimate aim.

67.The ECHR Memo that accompanied the Bill summarised the purpose of the changes as ensuring the sentencing and release framework “takes account of the true nature of crimes”:

“It must be robust enough to make sure the worst offenders spend as much of their time behind bars as possible, in order to protect the public from harm; but agile enough to give offenders a fair start on their road to rehabilitation.”89

68.Protecting the public from harm is a legitimate aim. Realising this aim would justify proportionate interferences with human rights, including the freedom from discrimination in the enjoyment of other rights (Article 14 ECHR). In their written evidence to us EQUAL raised doubts over how effective the changes will be at increasing public safety:

“The government argues that the proposals set out in the PCSC bill, although indirectly discriminatory, are justified on the basis that the proposals are “a proportionate means of achieving a legitimate aim” which in this case is increasing public safety …

… The government’s own research found, longer custodial sentences have an adverse impact on an individual’s mental health, sense of hope and attitude which may have a negative effect on their rehabilitation and resettlement. Moreover, the government have conceded that there is no evidence that increasing the length of time in custody and reducing time on licence in the community will in fact act as a deterrent. Instead, the government have attempted to justify longer times in prison by arguing that whilst in custody the individual is prevented from committing crime, which is arguably a short-term approach in direct contrast with the rehabilitative principles that underpin our criminal justice system.”90

69.If the Government implemented measures designed to mitigate the effect of the Bill’s changes on minority ethnic groups, there could be a greater chance of avoiding discrimination or at least ensuring that any discrimination would be proportionate to the legitimate aim of protecting the public from harm, in compliance with Article 14 ECHR. But the Government appears to have accepted the disproportionate impact of these provisions of the Bill on ethnic minorities without indicating any specific steps to address these disparities. This was a view expressed in written evidence from EQUAL:

“the government’s equality statements set out ample evidence to suggest that the proposals will increase racial disparities… yet despite this, there is no mitigation provided.”91

Claudia Sturt similarly flagged the lack of mitigation measures, saying she was “particularly concerned that, although the Government’s own impact assessment identified that these measures would impact Black, Asian and minority-ethnic children disproportionately, they decided to override that without apparently any mitigations in place.”92

70.The Government is right that the existing racial disproportionality in the youth justice system is a serious issue that must be addressed. In this context, it is unfortunate that the Government have noted the unequal effect the measures in the Bill will have without providing any measures to mitigate it.

Recording proceedings in youth courts

71.Our witnesses suggested that recording proceedings in the youth court could assist in identifying instances and trends of unequal treatment on racial grounds within the youth justice system. This would also allow for decisions around prosecution, remand, and sentencing to be challenged more effectively. Danielle Manson, a barrister at Garden Court Chambers, thought this “would help us to address this perceived elephant in the room in relation to race, and that would be a transparent and positive way forward.”93 Claudia Sturt described herself as “astonished to hear that currently youth court proceedings are not recorded. It seems such an obvious thing that should be happening.”94

72.We asked the Lord Chancellor about recording decisions in youth courts and he noted the potential benefits:

“Progressively, we have seen an increase in recordings. It all helps with regard to an accurate and agreed account of what happened in sometimes very important proceedings. I will undertake to look at that very carefully because I appreciate the seriousness very often of proceedings in the youth court.”95

73.We welcome the Lord Chancellor’s undertaking to look at how recordings in youth courts could be taken forward. This would allow for remand, prosecution, and sentencing decisions that raise concerns of racial discrimination to be challenged more effectively. The Government should introduce mandatory recording of proceedings in the youth courts so that decisions can be effectively scrutinised and challenged where necessary.

Negative impact of the disproportionate use of remand

74.The use of remand falls disproportionately on those from ethnic minority backgrounds, so these groups should benefit from the proposed changes in this area.96 However, as the Government has acknowledged, the fall in the youth custody population over the last decade has “disproportionately benefitted White children”.97It is extremely important that this trend is not replicated as the number of children remanded into custody is reduced. As the Youth Justice Board explained: “Disproportionality in remand decisions, in some cases, translates into disproportionality in sentencing, even when controlling for the nature of the offence. For example, being remanded into custody increases the likelihood that a custodial sentence will be imposed.”98

75.Measures intended to reduce the use of remand should reduce the number of children from all ethnic backgrounds being unnecessarily placed in custody. The Government should carefully monitor the remand of children from different ethnic backgrounds to ensure that the intended reduction in the use of remand benefits them equally.