Concern over racial disparity
Yesterday (12 November 2020) the House of Commons Justice Committee published the first part of its report on Children and Young People in Custody which focuses on entry into the youth justice system. The Committee noted that the number of children entering the system, as well as those receiving custodial sentences, had reduced considerably in the past decade. However, it highlighted that the seriousness of the crimes these children have committed has worsened, particularly for violence-against-the-person offences. The raw number of crimes committed remains lower than a decade ago but the proportion of violence-against-the-person offences has increased by ten percentage points compared with other crimes.
At the same time, the report sets out the complex vulnerabilities many of these children face, including mental health, social exclusion and substance misuse issues. For this reason, the Committee recommended that the courts and custodial authorities place a much greater emphasis on a “whole system approach” involving a range of public agencies such as educational, psychological and social services beyond those of the criminal justice system alone.
The Committee took evidence from the Children’s Commissioner, Anne Longfield, who said that of the children currently entering the justice system, “70% have mental health difficulties and 70% have communications difficulties”.
The previous Chair of the Youth Justice Board, Charlie Taylor (now Chief Prison Inspector), told the Committee:
“Though childrens’ backgrounds should not be used as an excuse for their behaviour, it is clear that the failure of education, health, social care and other agencies to tackle these problems contributes to their presence in the youth justice system”.
Drop in numbers
The Committee welcomed a dramatic, long term reduction in the raw numbers of children being sentenced for crimes in the youth courts of England and Wales. In this jurisdiction ‘children’ are defined as being between the ages of 10 and 17. In 2009, the number of those receiving a caution or a sentence (both of which can mean a child has ‘a record’, with implications for later life) was around 130,000. By 2019 this had fallen to 21,700 – a drop of 83%. The number of those sentenced to a custodial period in 2009 was 2625; by March 2020 it had dropped to 737.
This reduction is in part due to the role of measures that divert children from courts, which are known as ‘diversion schemes’. These have reduced the number of children being formally processed through the criminal justice system. These ‘community resolutions’, in the professional parlance, or ‘out of court disposals’, can include referral to social or psychiatric services as well as treatments for substance abuse, personality disorders or learning difficulties. The Committee noted that most experts in the field thought out of court disposals contribute to better outcomes for children. Furthermore, Her Majesty’s Inspectorate of Probation, cited in the Committee report, said that cases it had inspected indicated that short-term reoffending rates were lower following community resolutions compared with cautions or convictions.
The Committee also recommended in its report that more and better data on out of court disposals should be gathered by the Ministry of Justice and the Youth Justice Board. The data should show how many children benefit from such disposals, their impact on reoffending and on future health and education outcomes. The Committee also recommended that out of court disposals be adequately funded.
Disproportionality not explained or reformed
The report also called on the government to explain why more than half of the children currently detained by the state are from ethnic minority backgrounds when this group makes up only 18 percent of the overall population of children. The Committee echoes the words of a 2017 review by MP and lawyer David Lammy which called on the government to “explain” this disproportionality or “reform” the system to address it. The Justice Committee, chaired by MP and lawyer Sir Bob Neill, said; “We are not convinced that disproportionality has satisfactorily been ‘explained or reformed’”. It called on the Justice Ministry to provide detailed research into the matter “including the cause of disproportionate imprisonment”. The Committee further stated that the Ministry should set out actions to be taken and the resources to be allocated for the work.
The Committee was concerned, the report said, that the percentage of all children in custody, but on remand, remained high – in 2018/19 they totalled over a quarter (28%) of the average total of children incarcerated. This was the highest proportion in the last decade. Furthermore, the Committee was told that two thirds of children remanded to custody were not subsequently given a custodial sentence. Of these, nearly half (48%) were acquitted.
The Ministry of Justice is currently reviewing the use of remand in the youth justice system – a fact which the Committee welcomed. However, the Committee requested more detail on this review and a date by which it would be completed. It called on the government to publish the results of its review and any action plan.
Race disproportionality also applies to children held on remand. A Ministry of Justice report found that in 2019, 57% of children on remand were from a Black, Asian or Minority Ethnic (BAME) background while BAME children made up just 18% of children in the general population.
Problems with youth courts
The experience of young people in the court system was highlighted in the Justice Committee report with the help of evidence given by young people themselves. The report noted concerns from some quarters that the youth court system “does not adequately meet the need of children and is not fit for purpose”. The Justice Committee inquiry took evidence from Nadine Smith on her personal experience of being prosecuted. In the report, she is quoted as saying:
“I went to the youth court when I was 15. It was a really weird situation because everyone was using big words and nothing much was broken down for anybody; everything was jargon-based. You feel very intimidated. I would not have been putting across the best reflection of myself because I would have been overwhelmed.”
The Justice Committee report said everyone should be able to understand and fully participate in proceedings. It cites evidence given to it by the Royal College of Speech and Language Therapists which emphasised the importance of a scheme whereby intermediaries form a bridge between the court and vulnerable young defendants – the Registered Intermediary Scheme. The Committee agreed with this and called on the Ministry of Justice to set out how all children, regardless of specific needs, are supported through the criminal justice process and are able to participate in an informed and full manner.
Finally, the Committee report addressed how delays in court proceedings adversely affected children who had their eighteenth birthday while awaiting their day in court. This has meant they are then prosecuted in adult courts, where sentences are longer. Other consequences include losing the anonymity which is enshrined in youth courts.
The Justice Committee said, through its report, that punishment should fit the crime; proceedings and sentencing should be carried out on the basis of the circumstances prevailing at the time the offence was committed. It recommended that those who turn 18 while waiting for proceedings against them to begin should automatically be dealt with in the youth justice system and sentenced as children.
Thanks to Andy Aitchison for kind permission to use the images in this post. You can see Andy’s work here.