Justice for children in trouble

NOTES FOR PRESENTATION TO THE LAYJ ON 14.01.02

The Criminal Justice Bill: some proposals for youth justice

Introduction 

A. The main provisions of the Bill deal with the criminal justice system as a whole and there are relatively few clauses relating specifically to children and young people. (There is apparently lots more on the way however: green paper on prevention, anti social behaviour bill etc.) Nonetheless, it will have significant implications for youth justice in two ways:

§         The provisions that are specific to children represent significant reform

§         Many of the provisions dealing with the criminal justice system as a whole will also apply by default to youth justice, and in some cases, may affect children differently to adults.

These notes aim to describe the most important proposals from each of the above categories.

B.         Pre-Court changes - Amendments to PACE/ Police decision making

1. Bailing on the street

Clause 3 proposes to allow police to bail a person (without conditions) to attend the police station at a later time rather than require all those who arrested to be taken to the station as soon as possible.

It is potentially sensible and could lead to young people spending less time in police custody on minor offences waiting for something to happen. There are however issues about informing parents of arrest and when the young person is due to come to police station etc  - these are not covered in the Bill.   

Applies to adults and children

2. Review of police detention over the phone 

Police are required to review periodically the detention of all suspects to ensure that grounds exist for continued detention (after six hours then every nine hours). Until recently, reviews had to be in person but Crim Justice and Police Act allowed telephone review if it was not practicable to do in person. Clause 4 proposes to allow it in all cases as a matter of course.  

Applies to adults and children but given the additional vulnerability of the latter may have a differential impact.

3. Increased maximum periods of detention

The current maximum period of detention (as authorised by police) for an arrestable offence is 24 hours, Clause 5 proposes to extend it to 36 hours (currently only available for serious arrestable offences).

Applies to adults and children. The change may be primarily symbolic since serious arrestable offence which currently allows 36 hours detention, is so broadly defined. (That doesn’t make the proposal any more justifiable – on the contrary, it appears completely unnecessary given the existing powers.)

4. Abolition of requirement to make a record of retained property.

Custody officers are currently required to make a record of any property which a detained person is not allowed to keep while at the police station. Clause 6 proposes to get rid of the requirement. Justified on the basis of saving police time but is just plain silly (there is enough difficulty getting property back as it is).

Applies to adults and children 

5. Future amendments to Codes of Practice to be at the discretion of Home Secretary 

A bit technical but important. Clause 7 would allow the Home Secretary to issue revised Codes after consulting with representatives of the police and any other relevant parties (although probably not Liberty or the NAYJ). Important because most of the details about police duties and suspects’ rights are in the codes rather than PACE.  

Applies to adults and children 

6. Drug testing after charge

Clause 10 proposes to allow young people aged 14 – 17 to be tested for Class A drugs after being charged with a trigger offence or if the police consider that use of such drugs has contributed to the offending. A positive result can have implications for court decisions as to remands (and sentence). Test must be in the presence of an appropriate adult for those aged 14 – 16 years.

 Applies to children only (but is already available for adults).

 C.         Prosecution / court proceedings

Trial process

1. Double jeopardy

Clauses 62 – 80 will allow retrial, at a latter stage, of those acquitted of specified serious offences. These include murder, arson, robbery with a firearm and supplying Class A drugs. Follows a recommendation in the McPherson report (Stephen Lawrence inquiry).

 Applies to adults and children but only where the original trial was in the crown court.

2. Use of Previous Convictions /evidence of bad character

Clauses  81 - 95 will allow the prosecution to put previous convictions before the court and other evidence of bad character (including previous acquittals) as evidence in a trial subject to certain safeguards. The Bill also proposes to repeal an existing provision of CYPA 1963 which precludes the use of previous convictions, for offences committed while under 14 years of age, as evidence of bad character in a trial for an offence committed as an adult.

Applies – equally outrageously - to adults and children

Sentencing Framework 

The Bill proposes to introduce a new statutory purpose of sentencing but this applies only to adults so the existing structure – statutory aim, proportionality, welfare, compatibility with Human Rights Act – will continue to govern youth cases.

However, clause 127 redefines how seriousness is to be assessed and includes a shift towards the presumption that previous offences should be considered aggravating. (The general argument against such an approach is that offenders have already been punished for any previous convictions. To treat these as aggravating on a routine basis is thus to punish the same behaviour twice.)

Applies to adults and children

Court sentences

1. Changes to adult community sentences

All existing adult community sentences are to be abolished and replaced by a single community order, with a menu of possible requirements. The implication is that that the courts will have greater scope for combining various elements and some of the requirements can be more restrictive than existing orders (eg maximum ‘unpaid work’ requirement is 300 hours compared with existing community punishment order of 240 hours).

Applies to adults and children over 16 years of age (other youth community sentences will however remain available for 16 – 17 year olds).

2.  Changes to APOs and supervision orders

Schedule 17 proposes to make drug treatment and testing available as requirements for action plan and supervision orders. (Treatment aspect is available for 10 – 17 years; testing for 14 – 17 years.)

Applies to children only

3. Sentences for ‘dangerous’ young offenders

Clauses 205 – 208 build on the Government’s penchant for punishing people for what they might do.

a)       Serious offences (specified sexual or violent offences which carry more than ten years maximum in the case of an adult)

If a young person is convicted of one of these offences and the court deems him or her to be ‘dangerous’ (ie that there is a significant risk to the public of serious harm through further violent or sexual offences from that person), the court must:

§         Impose a discretionary life sentence: or

§         If it considers that no other sentence would be sufficient to protect the public from serious harm, impose an order of detention for public protection – an indeterminate order where release is subject to review.

b)      Specified offences (violent or sexual offences which would carry a maximum of two years or more in the case of an adult – serious offences are thus a subset of specified offences)

If a young person is convicted of a specified offence and the court deems him or her to be ‘dangerous’ in the above sense, and any sentence of custody between 1 – 2 years, is insufficient to protect the public from serious harm, it must: 

§         impose an ‘extended’ sentence in addition to the custodial sentence – the extension being a period on licence up to a maximum of nine years in the case of a sexual offence or five years where the offence is one of violence in addition to the custodial sentence.

The question of assessment of dangerousness will inevitably become a major issue for Yots in such cases.

Applies to adults and children (although with some differences in terminology)

Miscellaneous court provisions

1. Pre sentence drug testing

Clause 145 extends the existing power of the court to order a test for class A drugs prior to sentence in the case of an adult, to any young person over the age of 14 years. For those aged 14 –15, the test must be in the presence of an appropriate adult. Those aged 16 years do not apparently require an appropriate adult (the thin end of the wedge?).

Applies to children only (already available for adults)

2. Referral orders and parenting orders

The Bill proposes to make parenting orders available when the court makes a referral order (will require some form of report to the court).

Applies to children only

3. Individual support orders

Clauses 259 – 260 require the courts to consider making an individual support order whenever an ASBO is imposed on a child or young person. If the court determines that the order would be helpful in preventing further anti social behaviour, it must make an ISO. The order can contain requirements similar to those in supervision orders although it cannot involve attendance at a place for more than 2 days a week,

Non criminal behaviour could thus result in a positive requirement to take part in a programme and a criminal offence could result from failure to comply.

Applies to children only