Nacro response to JSC report, Children & Young People in Custody (Part 1)

The Justice Committee, today, has released its report ‘Children and Young People in Custody, Part 1: Entry into the youth justice system’, off the back of its inquiry into ‘Children and Young People in the Youth Justice System’, launched in July 2019.
Responding to the ‘changing demands on the youth justice system’, the report highlights a fall in the number of children and young people (aged 10-17) entering the system over the last decade (of 85% since March 2009), though – significantly – this reduction is not reflected in those entering the system from Black, Asian and Minority Ethnic (BAME) backgrounds. The system has been continuously reviewed over the last five years, yet
‘outcomes for children and young people do not appear to have significantly improved.’

The inquiry has concentrated on the Youth Justice population itself and the challenges in providing for this group, the suitability of the Secure Estate and whether there is the necessary support available to effectively resettle and rehabilitate children and young people.

Nacro’s External Engagement Director, Helen Berresford, contributed to the inquiry, and questioned at the time whether – in spite of the reduction of children in custody – custody for young people is genuinely being used, only as a last resort – “It is really clear, particularly when two thirds do not go on to receive a custodial sentence, that there is an over-use of remand.”

The report has produced several interesting recommendations, of which we have provided more detail on below, covering: youth courts and sentencing, racial disproportionality, the minimum age of criminal responsibility, and the impact of COVID-19.

Sentencing

The Committee welcome’s the MoJ’s current review of youth remand, and has requested more detail on what that review is covering, along with the timeframe. They have asked the MoJ to set out how many children have been sent to custody pending a psychiatric report and recommend that they set out what steps it is taking to prevent this from happening. In addition, the report recommends a review of sentencing options for
children, with a view to introducing:

• A Youth Rehabilitation Order as a sentencing option for first-time offenders pleading guilty
• A feedback loop between Youth Offending Teams and the courts
• The Ministry of Justice should legislate to ensure that those who turn 18 while waiting for proceedings against them to begin are automatically dealt with in the youth justice system and sentenced as children

We were pleased to see the proposal in the recent Sentencing White Paper to strengthen the legal test for custodial remand for children. Currently, remand accounts for almost a third of all children in youth custody – the largest proportion in ten years – and we know that approximately two thirds of those children will not go on to receive a custodial sentence. Custodial remand for children should only be used as a true measure of last resort.

We also welcome the recommendation that the Ministry of Justice should legislate to ensure that those who turn 18 while waiting for proceedings against them to begin are automatically dealt with in the youth justice system and sentenced as children.

Racial disproportionality

Racial disproportionality is prevalent across the criminal justice system and is increasing in many areas, despite the implementation of numerous initiatives. As the report states “race disproportionality is significant and fundamental, visible in every part of the youth justice system. We recommend that the Ministry of Justice (MoJ) set out what resource has been allocated to addressing disproportionality. We are not convinced that disproportionality has satisfactorily been explained or reformed.” Further, the Committee calls on the MoJ to provide it with detailed research “setting out why these communities are so disproportionately represented in each part of the system, including the cause of their disproportionate imprisonment.”

It is clear that far more needs to be done to tackle racial disproportionality and embed the Lammy Review’s principle of ‘explain or reform’ into the youth justice system.

Minimum age of criminal responsibility

The Committee recommends that the Ministry of Justice review the minimum age of criminal responsibility, though the report does state that the Committee is not persuaded that it should be immediately increased.

We welcome this review and strongly believe that the current age of criminal responsibility is too low and should be raised, at least to the age of 14. Using non-criminal, welfare procedures to ensure children get the support they need at a critical stage in their development is far more appropriate and effective than putting them through traumatic criminal procedures where, for example, children can be held in police custody or tried in court.

COVID-19

The report reiterates the Committee’s previous recommendation, that the Ministry should urgently commission a review that evaluates the effect of COVID-19 measures in the magistrates’ courts and the Crown Court. This review should also consider the specific effect COVID-19 measures have had on access to justice and fairness of outcomes for children and young people.

We believe that such a review is urgently required, as we are concerned about the impact of delays on children awaiting trial, and we are particularly concerned about the use of remote hearings as the impact of this has not been evaluated and raises significant concerns about access to justice and fairness of outcomes. Children and young people going through the court system have very distinct needs, with many facing neuro-developmental and communication challenges. They may not fully understand proceedings, and this is likely to be compounded by the use of virtual hearings.

The full report can be found here. If you have any questions on its contents, please get in contact with policy@nacro.org.uk.

We look forward to the committee’s second report from this inquiry looking at the custodial estate and resettlement and will provide a further summary