Draft Evidence to the Parliamentary Enquiry Into the Youth Justice System 2013

Prison Reform Trust submission Parliamentary inquiry into the operation and effectiveness of the youth justice system - November 2013

The Prison Reform Trust is an independent UK charity working to create a just, humane and effective prison system. We do this by inquiring into the workings of the system; informing prisoners, staff and the wider public; and by influencing Parliament, government and officials towards reform. We welcome the opportunity to submit evidence to this Inquiry.

The role of the youth court

Does the youth court operate effectively under the two principal statutory aims of the youth justice system: to reduce offending and have regard to the welfare of the child, and in accordance with the UN Convention on the rights of the child?

The youth court is a cornerstone of the youth justice system, and has played an important role in the achievements of the system over the past six years (reductions in youth crime, numbers of first time entrants into the youth justice system, and in numbers of children imprisoned).

But the youth court could be improved further. We support the proposal for regular court reviews of children’s progress during sentence, to improve sentencers’ awareness of the efficacy of different types of sentence, and, in appropriate circumstances, encourage early terminations for good progress.1 As a step towards this we consider regular anonymised performance reports a vital ingredient for efficient sentencing.

A healthy youth court bench is one that holds regular court users meetings, including the local youth offending team (YOT). This does not happen universally. We would recommend that HM Courts and Tribunal Service (HMCTS) and the Youth Justice Board (YJB) issue joint guidance on this.

Full engagement of children in court proceedings is central to building desistance that can reduce reoffending. Children with learning disabilities and speech and language impairment are over represented at court and can struggle to understand proceedings.2 There is also emerging evidence that children with acquired brain

1 HM Government (2008) Youth Crime Action Plan London: COI 1 injuries are similarly disadvantaged,3 struggling at court due to the legal system’s inevitable dependence on verbal codes and reasoning. We support regular training of sentencers and other court officials on the impact that learning disabilities and other impairment have on children, together with an annual self-review of how effective each youth court has been in ensuring that children have understood and participated fully in the court’s proceedings.

Is there a case for a more holistic approach to dealing with children and young people that offend but are also in need of welfare intervention?

There are many children appearing before the youth court about whom it appears to magistrates and others that their chances of reoffending would be significantly reduced were welfare (e.g. social care, housing) or other needs (e.g. health and social care) purposefully addressed by the relevant authorities and agencies. Our report Punishing Disadvantage4 summarised many of the disadvantages and psycho- social and educational problems faced by children sentenced to child custody in 2008,5 whilst Seen and Heard highlighted the lack of “routine or systematic procedure(s) to ensure the particular support needs of individual children were recognised and met”.6

However, the youth court, envisaged purely as a criminal court, has no means of calling for a wider enquiry into the child’s circumstances, or of transferring proceedings to the family court. The needs of some children are being overlooked by the responsible authorities as pressure on public spending mounts and some authorities choose to focus, principally, on meeting the needs of younger children, and those to whom a safeguarding duty is owed.

As a short term measure, the Prison Reform Trust supports the proposition that either the Children Act be amended to enable the youth court to adjourn proceedings while a fuller examination of a child’s circumstances takes place, or, if such amendment is deemed unnecessary,7 that clear guidance be issued to sentencers and YOTs (and their sponsoring authorities) to ensure that this power is exercised in the interests both of reducing reoffending and promoting the welfare of

2 See for example Talbot, J. (2010) Seen and Heard: supporting vulnerable children in the youth justice system London: PRT, Jacobson, J. and Talbot, J. (2009) Vulnerable defendants in the criminal courts: a review of provision for adults and children London: PRT and Burrows, S., and Yiga, I. (2012) Youth Offending and Speech and Language Therapy, London Borough of Ealing 3 Hughes, N. et al (2012) Nobody made the connection: the prevalence of neurodisability in young people who offend London: Children’s Commissioner 4 Jacobson, J. et al. (2010), Punishing Disadvantage, a profile of children in custody London: PRT 5 These included experience of higher than average levels of loss, bereavement, abuse and violence; high levels of illiteracy; nearly a quarter of children in custody possessing a formal learning disability; and high levels of substance misuse and mental health problems (particularly among girls). 6 Talbot, J. (2010) Seen and Heard: supporting vulnerable children in the youth justice system London: PRT 7 We understand the Ministry of Justice is currently reviewing whether sufficient powers already exist within the terms of the Children Act 1989 to enable this to happen. 2 the child. In order to ensure that there is overview of this function, we recommend that HMCTS report all such instances both to the relevant local authority Chief Executive and to the Chief Executive of the YJB.

In the longer term, the Prison Reform Trust would support the development of closer links between the Youth and Family Courts, including consideration of the ability to transfer cases to the Family Court (suspending the conclusion in the Youth Court while the Family Court case remains outstanding).

The use of the Crown Court for children

To what extent is the Crown Court the best venue for children and young people who commit serious offences?

Crown Courts have twin advantages of bringing senior legal expertise to bear on criminal proceedings and in enabling trial by a jury. For these reasons removing Crown Courts from any role in the consideration of offences by children should not be taken lightly.

However, despite considerable efforts to ameliorate the most challenging elements of the Crown Court environment for children, the setting and formality of a Crown Court hearing is usually very intimidating to children.

The Prison Reform Trust would support the removal of proceedings of all children under 16 from the Crown Court, and the creation in its place of an arrangement whereby a Crown Court Judge, sitting in a Youth Court with a panel of Youth Court Magistrates, could hear cases relating to ‘grave’ crimes.

Specialism in the Youth Court and Crown Court

Is there a need for legal practitioners and sentencers in youth criminal cases to have youth specialist expertise? If so, how can this be achieved? Should there be a separate ‘youth’ sentence division in the courts system as in the Family Division with a President of the Youth Division?

The proposition that all matters relating to offending by children should be dealt with by people with expertise and specialism in both criminal justice and child development is consistent with the ethos of the UN Convention on the Rights of the Child. The importance of this expertise is reflected in the arrangements governing the operation of the Family Division, and should be extended to those considering the cases of children who offend.

We support the proposals being put to this Inquiry by the Michael Sieff Foundation that:

3  All lawyers and judges dealing with children should be ticketed after training in child welfare and youth court law;  A youth crime division, led by a senior judge, should be created; and  Magistrates should be able to opt for specialising in the youth court after three years in the adult court, as they can in the family proceedings court.

The merits of a non-adversarial approach Is there a case for a non-adversarial approach, instead of the present adversarial system?

The adoption of a non-adversarial approach in the youth court would support more closely the two principal statutory aims of the youth justice system, allowing sentencers greater flexibility both in examining how each child might best be supported to prevent reoffending, and how the court’s proceedings might best advance the child’s future welfare. Such an approach should also increase the prospects that each child would be able to understand and participate in the proceedings and, in this way, open up the prospects of personal change.

It can be debated whether a non-adversarial approach could be engineered into the existing system of youth courts or whether radical change is required.8 For our part we believe that adjustment – the introduction of a more non-adversarial approach – is worth piloting.

But more major reform of the youth justice system may be required. If so it would be right to review the age of criminal responsibility in England and Wales. We believe there is a compelling case, rooted in an understanding of child development and its attendant sciences, for raising the age of criminal responsibility. The reduction in numbers of children aged between 10 and 12 who are prosecuted and sentenced9 indicates that a first step of raising the age to 12 could be achieved with ease. Alternative means, rooted in the welfare system and subject to public scrutiny, exist to respond to children of 10 and 11 who commit grave offences.

To what extent is there a need for additional court powers to require investigation?

See our answer above.

Are there viable alternatives to the criminal courts system for children and young people? The panel is particularly interested in submissions regarding the Children’s Hearings system in Scotland and the Youth Conference Service in Northern Ireland.

8 Justice and the Police Foundation (2011) Time for a new hearing – a comparative study of alternative criminal proceedings for children and young people The Police Foundation 9 Ministry of Justice (2013) Youth justice statistics 2011/12 London: MoJ 4 A range of different arrangements exist elsewhere in the United Kingdom and throughout Western Europe. These have been described comprehensively by Professor Dunkel and colleagues.10 However, their account does not compare effectiveness.

Our report Making Amends: restorative youth justice in Northern Ireland11 explored the introduction and effectiveness of youth conferencing in Northern Ireland. Strengths included its integration in the wider youth justice system as well as the professionalism, commitment and skills of staff. Whilst youth conferencing is now embedded within the system, there are concerns over its future resourcing demands, low thresholds for the use of youth conferences, and rates of victim participation.

The delivery of the welfare principle in criminal proceedings in the youth justice system

How engaged are children’s services in England (and social services in Wales) in meeting the welfare needs of children who offend? To what extent are children’s social services addressing the welfare needs of children who offend and involved in criminal proceedings?

In principle, children’s services in England (and social services in Wales) should be actively engaged in the youth justice system as the overwhelming majority of YOTs now report directly to directors of children’s services, and a growing minority of YOT managers now have responsibility for other children’s services alongside offending services.

Furthermore the widely reported over-representation of children in care in the youth justice system (27% of boys and 45% of girls surveyed in custody having been in care at some point in their lives12)13 highlights that many children who are the subject of criminal proceedings will, or ought to be, the subject of corporate parenting from their local authorities. Research from the University of East Anglia14 identified how good quality care services can reduce the risk that children in care will offend.

However, the success of YOT innovation has created silos in local services; relatively generous funding that they enjoyed in their first ten years probably contributed to this. Furthermore the original idea that core staffing for YOTs would consist of staff seconded for fixed periods of time from partner agencies (including children’s and

10 Dunkel, F., Grzywa, J., Gensing, A., and Pruin (eds.) (2011) Juvenile Justice Systems in Europe, volumes 1 to 4 Forum Versag Godesburg 11 Jacobson, J., and Gibbs, P. (2009) Making Amends: restorative youth justice in Northern Ireland London: PRT 12 HM Inspectorate of Prisons (2011) The care of looked after children in custody London: HMIP 13 Blades, R., Hart, D., Lea, J. and Willmott, N. (2011) Care – a stepping stone to custody? London: PRT 14 Schofield, G., Ward, E., Biggart, L., Scaife, V., Dodsworth, J., Larsson, B., Haynes, A., and Stone N (2012) Looked after children and offending: Reducing risk and promoting resilience. University of East Anglia and the Adolescent and Children’s Trust 5 social services) has tended to wane as time has passed. In consequence YOTs have gained greater expertise in criminal justice matters but have lost some expertise in welfare and other matters.

Most recently children’s and social services in England and Wales have been undergoing significant change, in particular since the death of Peter Connolly in Haringey in 2007. There has been a significant rise in the numbers of investigations into children’s circumstances, and consequent care proceedings.

Local and health authorities have attempted to increase resources to address this growing demand, but recent reductions in public spending have meant that other areas of work have seen a disproportionate reduction in resource and attention.

We believe that services for adolescents have suffered in consequence. In particular there is a risk in some areas that some children in need of welfare services are seen as ‘belonging’ to the YOT and do not, therefore, receive the services they might otherwise expect. This exacerbates the problems described above.

Some local authorities look upon their youth offending services as relatively well- funded by government15 and have not given them the priority that other parts of their services have received. There is evidence that other partners, most notably the Probation Service, have reduced funding nationally.16

The net effect is that the needs of children who offend are not consistently in the first rank of priorities for children services, although there are exceptions to this. The power to adjourn and the forging of closer links between the youth and family court would be positive steps towards redressing this.

Initial steps towards devolving the budget for custodial remand previously held centrally by the YJB, and the extension of care status to all children held in custody on remand, were positive measures, both of which we supported. We would like to see the full custody budget devolved to local authorities, the extension of care status to all children in custody, and regular overview of the circumstances of all children in custody by local safeguarding children’s boards. These steps would help focus children’s services on the welfare needs of children who offend.

We made a series of recommendations in relation to the role of children’s services in our report Seen and Heard, which were collectively designed to ensure that services and procedures should facilitate access to children’s universal services for children who offend, and , also provide, where appropriate specialist assessment, treatment and support.17

15 The main mechanism being the Youth Justice Good Practise grant (known as ‘the YOT grant’) administered by the YJB, currently worth nearly £100m per annum. 16 As this evidence is submitted the level of the future contribution of the Probation Service to the youth justice system is in some doubt due to the forthcoming implementation of reforms to the Probation Service. 17 Talbot, J. (2010) op. cit. – in this context we focussed particularly on the needs of children with communication difficulties, experience of abuse, learning disabilities and difficulties, mental health 6 The use of diversion from the criminal courts system

To what extent is the use of pre-court diversion, triage, conditional cautions etc. effective at preventing young people from entering the criminal courts system?

Pre-court diversionary18 approaches of the sort described in the question are central to the reduction in numbers of children entering the youth justice system of recent years.19 There are four main points to be made here.

First, the youth justice system can at times be described as criminogenic. Exposure to it can increase the chances that a child may reoffend. This is not an argument for no intervention, but rather for considering very carefully the criminogenic risks of certain forms of early intervention, especially those that risk labelling children as offenders, with sometimes profound consequences for the way that the child, or others, come to think – “I’m a persistent offender. I’ve heard it said so many times. It’s the easiest way to describe me…It’s just a label that’s been given to me”.20 Evidence from the Edinburgh study21 on the importance of pathways out of offending and diversionary strategies that facilitate the desistance process are instructive,22 as is evidence from research in the United States that “juvenile court processing tended to increase criminal behaviour, especially when compared with diversion to community service”.23

Secondly, there is some evidence that programmes can be designed and implemented that prevent early signs of trouble escalating into serious, violent and chronic offending by children.24 If a court appearance is not needed to trigger referral to such programmes then for some children the need for a court appearance is diminished (and a saving accrues to the public purse).

It is also the case that diversionary services and ‘pathways’ open up the prospects that previously neglected welfare and health needs may be met, reducing the risk of further offending. Triage systems introduced at the time of the last Government’s problems, or in care. 18 Our experience tells us that ‘diversion’, ‘early intervention’ and ‘prevention’ are often used interchangeably in the youth justice system, i.e. to imply that they are one and the same thing. There is real merit in understanding the differences between them, and in this context are referring to ‘diversion’ in its narrowest form, i.e. ‘direct alternatives to prosecution’. 19 Allan, R. (2011) Last resort: exploring the reduction in child imprisonment 2008-2011 London: PRT 20 Anon in The Howard League for Penal Reform (2011) Life outside – collective identity, collective exclusion urboss.org.uk 21 The Edinburgh Study of Youth Transitions and Crime is a longitudinal programme of research on pathways into and out of offending for a single cohort of around 4300 young people who started secondary school in the City of Edinburgh in 1998. 22 McAra, L. and McVie, S. (2010) ‘Youth crime and justice: Key messages from the Edinburgh Study of Youth Crime’, Criminology and Criminal Justice, 10(2) 179-209 23 Petrosino, A., Turpin-Petrosino, C., and Guckenberg, S. (2010) ‘Formal system processing of juveniles: Effects on delinquency. Campbell Systematic Reviews 2010:1 doi:10.4073/csr.20101 24 See for example Farrington, D.P., (2012) ‘Should the Juvenile Justice System be Involved in Early Intervention?’, Criminology & Public Policy, 11 2 7 Youth Crime Action Plan25, and by the current Government under the auspices of the Department of Health, have been particularly important here.

Lastly, it remains the case that many offences committed by children are relatively minor, and that a majority of children do not reoffend. In such circumstances the diversionary approach that currently underpins the youth justice system can be thought of as being proportionate to the offending for which it is a response.

Is there a case for such diversion measures to be extended still further?

There is ample flexibility in the current arrangements to ensure that opportunities to divert children are utilised wherever appropriate.

To facilitate this, priority should be attached, by the Government, to the YJB monitoring the range of diversionary activity throughout England and Wales, and distilling best practise guidance to YOTs and their management boards on this subject. Diversionary services are vulnerable to cuts when public funds are limited but a diversionary approach cannot be pursued if there are no services to which to divert children who offend.

The views and experiences of young people who have been through the criminal courts

Our report Care – a stepping stone to custody?,26 described qualitative research with 23 children in care relating to their experience of, and involvement in, the youth justice system. Their views on whether the courts treated them fairly were divided, with both positive and negative experiences reported evenly.

“I think the magistrates are fine really but then you get the occasional judge who’s like, ‘I don’t care, I’ve heard all of this before’ sort of thing…but then you get others who understand why you’ve done it really.”

“When you’re in court, yeah, it’s like everyone’s looking at you like you got a bad name for yourself…They don’t know what’s going on in my life. They think they know me but they don’t.”

Race, gender and ethnicity

There are grounds for concern at the apparent over-representation of groups of children from some minority ethnic communities at every stage of the youth justice system, and at the fact that the disproportionality builds at each stage of the system, e.g. the highest levels of disproportionality are to be found amongst children in

25 See footnote 1. 26 Blades, R. et al (2011) Care: a stepping stone to custody? The views of children in care on the links between care, offending and custody London: PRT 8 custody.27 In the absence of strong research it cannot be stated with confidence that the operation of the courts system plays a part in this (or indeed, more fundamentally, that this is evidence of dysfunction) but there is anecdotal evidence that some children are served less well by parts of the court system.

This may equally be true of girls. The All Party Parliamentary Group on Women in the Penal System concluded recently28 that there was evidence that girls are treated more harshly by magistrates in specific circumstances, and that some girls were being criminalised when there was no need for intervention or when they could have been diverted from the youth justice system. One cause of these failings was attributed to a lack of awareness amongst magistrates and other professionals of the specific needs of girls.

Prison Reform Trust November 2013

27 See for example, Independent Commission on Youth Crime and Antisocial Behaviour (2010) Time for a fresh start p.88 The Police Foundation and Ministry of Justice (2013) Youth custody report – September 2013 London: MoJ 28 Report of the All Party Parliamentary Group on Women in the Penal System, chaired by Baroness Corston (2012) 9