The London Association for Youth Justice

A Response to the Home Office Review of the

 Rehabilitation of Offenders Act 1974

This response has been prepared by the London Association for Youth Justice on behalf of, and in consultation with, the committee of the National Association for Youth Justice. The NAYJ is grateful to the London Association for work on production of this paper.

1. Introduction

1.1 The National Association for Youth Justice welcomes the review of the Rehabilitation of Offenders Act 1974, the broad scope of its terms of reference and the opportunity for interested parties to contribute at an early stage in the process.

1.2 Given its area of specialist interest, comments are restricted to the issues where legislative provision in relation to rehabilitation impacts upon children in trouble. In particular, there are two issues which the Association would wish to draw to the attention of the review team: children who commit ‘Schedule 1’ offences; and distinct periods of rehabilitation for children.  

2. Children who Commit Schedule 1 Offences

2.1 Currently any person who commits an offence listed in Schedule 1 of the Children       and Young Persons Act 1933 (which contains a range of offences against children or young persons under 18 years of age) is automatically designated a Schedule 1 offender regardless of the sentence imposed or the age of the person committing the offence. Schedule 1 status is for life and has wide ranging implications for those subject to it.

2.2 The purpose of maintaining registers of those who have committed a Schedule 1 offence is the long term protection of children. The existing legislative provisions and current guidance may well represent an appropriate response to circumstances where the perpetrator is an adult and the victim is a child. The NAYJ is, however, concerned that the same provisions apply where the offender is also under the age of 18 years, including cases where he or she might indeed be younger than the victim.

2.3 Where both the victim and offender are children or young persons, conviction for a Schedule 1 offence may not reliably distinguish between individuals who represent an ongoing risk to children and those who are very unlikely to do so. For example, children convicted of assault consequent to a playground fight, or of unlawful sexual intercourse where both parties are of a similar age and the activity is consensual, are caught by the current arrangements. In such circumstances, the conviction in itself could not reasonably give rise to ongoing child protection concerns. The Association attaches, for information, a Briefing prepared in 1999 by Nacro’s Youth Crime Section which contains a useful outline of the issues involved in greater detail than the current document.       

2.4 The Association is concerned therefore that the current provisions discriminate unfairly and unnecessarily against children who commit particular sorts of offences in a way which may have enormous consequences in later life.

2.5 The NAYJ acknowledges that the registration of Schedule 1 offenders is not governed by the Rehabilitation of Offenders Act. Given the broad remit afforded to the Review, however, the Association would urge the team to consider this subject in the context of its deliberations as one which has a significant bearing on the rehabilitation of children in trouble and has the potential to restrict severely options available to them as adults.  

2.6 The Association considers that the large majority of children who commit Schedule 1 offences might safely be excluded from the existing arrangements. It acknowledges however that there will be occasions where the protection of other children is a real ongoing concern and that the option of applying Schedule 1 status should be available.

The Association, therefore, recommends that one outcome of the Review should be the development of distinct guidance dealing with children convicted of an offence listed in the Schedule. Such guidance should be based on the presumption that children will be exempt from the procedures which apply to adults. It should allow, however, for that presumption to be reversed in appropriate cases which are sentenced in the crown court.

The Association proposes that the Review team consider two alternative mechanisms for deciding to apply Schedule 1 status in those exceptional cases. One option would be for the trial judge to make a decision at the point of sentence; alternatively, the decision might be delegated to the local Director of Social Services and the chair of the Area Child Protection Committee on the basis of a joint assessment by staff from the youth offending team and the children and families division of the social services department.

3. Distinct Rehabilitation Periods for Children

3.1 The existing provisions of the Rehabilitation of Offenders Act allow for a distinct application of rehabilitation periods for children and adults who receive functionally equivalent sentences. The NAYJ, for reasons outlined below, considers that any review of the Act ought to maintain and, in certain respects, extend that principle.

3.2 The Association considers that an effective approach to dealing with young people in trouble should emphasise that they are children who offend rather than view them as offenders who happen to be children. Childhood is a period of rapid development at a variety of levels. During adolescence, there is a gradual transition towards adulthood but the pace at which the journey is made varies considerably from individual to individual. Until the process is complete, however, children and young people do not have the same capacities as adults and this is relevant to their ability to form a full criminal intent as it is understood to apply to older offenders.

The NAYJ therefore believes that measures to protect the public which apply to adults, should not be applied automatically to children. Such an approach is compatible with the requirement in Article 40(3) of the United Nations Convention on the Rights of the Child that signatories seek to promote the establishments of laws and procedures specifically applicable to children.   

3.3 The developmental process is important for a further reason. The potential for rehabilitation is considerably greater in the case of child than for an adult whose offending is entrenched. Research continues to suggest that the vast majority of children in trouble grow out of offending. (See, for a recent discussion, ‘Youth Crime: Findings from the 1998/ 9 Youth Lifestyles Survey’, Home Office Research Study 209.)

In these circumstances, the ‘period of risk’ during which an offence is likely to be repeated might be thought much shorter in the case of a child. As the report of the Gardiner Committee which presaged the introduction of the current legislation argued:

‘Changes of personality take place more quickly during most people’s teens and less time is needed to give society a reasonable assurance that the changes will last’.

The NAYJ therefore believes that arrangements governing the rehabilitation of children should acknowledge that the risk of reoffending is likely to decline at a faster rate than that associated with adult offenders who commit similar offences. 

3.4 On the other side of the coin, there is a wealth of evidence to suggest that desistance is likely to take effect more quickly where the transition to adulthood is completed at an earlier age. Factors of primary importance are the move towards financial independence and gaining employment. Young people with criminal convictions are less likely than their peers to have educational or vocational qualifications which will allow them easy access to the world of work and may be disadvantaged in other respects. In these circumstances, having to declare a conviction can impose an insuperable obstacle to obtaining a foot on the first rung of the employment ladder. At the same time, measures which tend to confirm a young person’s criminal identity can make the normal process of desistance more difficult and may inadvertently increase the risk that the child will continue to offend into adulthood.

The NAYJ therefore believes particular recognition should be given to the fact that a requirement to declare convictions may have a greater impact negatively upon the potential for rehabilitation in the case of a child than for an adult offender.

3.5 Children experience time differently from adults by virtue of the fact that relatively short periods of time (by adult standards) can constitute the equivalent of a significant proportion of a child’s life to date. As a consequence, young people find it much harder to see beyond relatively lengthy rehabilitation periods; for the same reason, a much shorter offence free period is likely to be indicative of a reduced risk of reoffending than in the case of an adult.

3.6 In the light of the above considerations, the Association is persuaded that the principle of distinct rehabilitation periods for offenders of different ages should be retained. However, the NAYJ further believes that the distinctions incorporated in the current legislation:

a)      are not sufficient to recognise the differential status of children in trouble; 

b)      impose rehabilitation periods longer than required in order to protect the public; and

c)      are in some respects inconsistent.

3.7 To take the last point first. The action plan order is described in Home Office guidance as an order which

‘the courts may wish to consider when a young person has first been convicted of an offence serious enough for a community penalty’.

In other words, the order is primarily to be targeted at young people whose offending is relatively serious but is not so entrenched that it requires long term intervention such as that provided under a supervision order or other equivalent community order.

3.8 It therefore appears incongruous, to say the least, that the rehabilitation period for the action plan order - at two and a half years – is greater than for most supervision orders (where the relevant period is the longer of one year or until the order expires). The paradox is more pronounced in the case of a reparation order which has a rehabilitation period equivalent to that for an action plan order. The reparation order however is not a community sentence and no threshold of offence seriousness is required before such a penalty is imposed.  Moreover, the rehabilitation period for a detention and training order of less than 18 months is shorter than that for either an action plan or reparation order.

The NAYJ therefore considers that rehabilitation periods for young people should be made more consistent and should reflect, to some degree, the likely seriousness of the offending leading to disposal. Given the considerations briefly outlined in paragraphs 3.2 to 3.5, the Association believes that this should result in a significant reduction in the periods currently associated with the action plan order and the reparation order.

3.9 While the current provisions, in the main, recognise distinctions between children and adults this recognition does not extend to those receiving sentences of more than two and a half years custody under section 91 of the Powers of the Criminal Courts (Sentencing) Act. The NAYJ notes the Penal Affairs Consortium’s view that the threshold for excluding from rehabilitation those sentenced to periods of longer term custody should be extended from its current point of two and a half to four years.

The Association supports such an approach insofar as it relates to adults but considers that the extension should be significantly greater for children and young people. On the one hand, it is arguable that an age governed distinction, in relation to the point at which the exclusion kicks in, was always justified; on the other, there are grounds for thinking that courts more readily use the provisions for the long term detention of children than they might previously have done. According to Criminal Statistics, for example, the proportion of burglaries tried and sentenced in the crown court which resulted in orders under section 91 (then section 53 of the CYPA 1933) rose, between 1989 and 1999, from 2.8% to 7.5%.

These two arguments incline the NAYJ to the view that young people should not be excluded from the framework of the Rehabilitation of the Offenders Act except where they receive a custodial sentence of more than 10 years. In such cases, the exclusion should not be automatic but subject to appeal by the young person. The NAYJ considers that the appeal mechanism proposed by UNLOCK and supported by the Penal Affairs Consortium, through application to a Criminal Records Tribunal, is an option which merits further attention.

3.10 For the reasons outlined above, the NAYJ considers that the current rehabilitation periods for children and young people are overlong and can act as barriers to young people in trouble obtaining employment and leaving their past criminal activities behind them. Moreover, shorter rehabilitation periods would be adequate to protect the public given that a comparatively brief offence free period is a better indicator of risk reduction in the case of a child than in the case of an adult. Such an argument is of course buttressed by the fact that continued offending by the young person would prevent earlier convictions becoming spent irrespective of the rehabilitation periods associated with previous court disposals.         

The Association proposes that the following framework would be sufficient both to meet the requirement for public protection and to maximise the potential for the long term prevention of offending.