Justice for children in trouble

Summary of the White Paper – Implications for Youth Justice

Introduction

1. The White Paper proposes a range of reforms of the criminal justice system in general and contains a number of specific measures in relation to the youth justice system. The overall aim of the reforms is to ‘to put the victims, who suffer most from crime, at the heart of the system’.

Reform is predicated on the notion that some aspects of the system are failing. In particular:

§         While crime is stable overall following a period of decline, some types of offending have risen – especially street crime - and the fear of crime remains unacceptably high.

§         The police detect on 23% of crime and victim satisfaction with the police has fallen. Racist offending and domestic violence are underreported.

§         The CPS discontinues 13% of cases referred by the police and only 55% of contested cases are properly prepared by the police. £80 million are wasted each year on cancelled / adjourned trials.

§         12% of those bailed fail to appear and almost a quarter of defendants commit at least one offence on bail – rising to 38% of those under 18.

§         Recording practices across agencies is inconsistent.

§         Sentencing is inconsistent

§         Half of all prisoners discharged reoffend within two years. The rate for young offenders is much higher.

The reforms are intended, primarily, to:

§         Increase the number of convictions by improving procedures and changing the rules of evidence to stop defendants playing the system

§         Increase speed and efficiency

§         Reduce the number of cases which go to crown court and enable some crown court trials to proceed without juries

§         Ensure that punishment is ‘effective’ by changing the way that custody works and reforming community sentences.

2. Many of the changes that relate to adults have been aired elsewhere – in particular in the Halliday report on putting ‘sense back into sentencing’ and the Auld review of the Criminal Courts. Some of these – but not all – will have implications for young people as well. By contrast, the provisions dealing with young people (with the exception of those on the grave crimes procedures) have not previously been subject of any consultation.

While there is scope for making comment (the consultation period runs until 9^th October), the paper attempts to focus feedback in relation to particular questions contained in Annex 1.

In the case of some measures, the paper reads as if things have already been decided, as in ‘we will bring forward legislation to …’. Some other proposals are intended to be longer term and will be the subject of further consultation in due course. In many instances, it is unclear which of these two scenarios applies.

3. This summary aims to provide an overview of those proposals that will have an impact on young people. In addition, brief reference is made to a number of reforms which will not directly affect youth justice but which help to give a flavour of the way that the criminal justice system appears to be going. Given the length of the White Paper, the summary is, of necessity, selective. Large parts of Justice for All describe provisions which are already being implemented and no account is given of these. 

Some proposals for adults

1. A number of proposals for change appear to reflect reforms that have already been implemented for young people. For example, courts are to be made less formal and judges may have to wear normal clothes (paragraphs 7.18 – 7.21), there is to be a national restorative justice strategy (paragraphs 7.31 – 7.37) and there is to be legislation on the purpose of sentencing (paragraphs 5.8 – 5.10).

In terms of the latter, the statutory purpose/s of sentencing will be to:

This appears to cover just about every conceivable function of sentencing – except perhaps reflecting society’s disapproval of the behaviour although that can easily be inserted between the lines. However, the fact that it is comprehensive doesn’t necessarily make it comprehensible and it is hard to see how this will make the job of sentencers any easier. It is also not clear whether these principles will replace, sit alongside or be irrelevant to the statutory aim of the youth justice system. In any event, it is likely to involve a repeal of some elements of the Criminal Justice Act 1991 which sets out the current statutory framework on the basis of proportionality.

There is also to be a Sentencing Guidelines Council established to improve consistency of sentencing across courts (paragraphs 5.13 – 5.18). This will differ form the existing Sentencing Advisory Panel which issues guidance to the Court of Appeal. It is not clear whether the guidance will be applicable to youth cases.  

2. Cautioning for adults is to be reformed. Conditional caution would involve an individual who admits an offence complying with a specified condition, monitored by the probation service, in order to avoid prosecution (paragraphs 4.10 – 4.15). This clearly has echoes of the final warning scheme except that a subsequent failure to comply would lead to prosecution. There is fairly obvious scope for a human rights challenge on this point.

Consideration is also being given to introducing deferred cautioning – where the police will put the decision to caution on hold if a person agrees to seek help from a drugs agency. In the event of them engaging successfully in treatment, the police will subsequently take no further action rather than issue a caution (paragraphs 4.16 – 4.18).

3. The current sentencing framework is to undergo substantial change – in particular at the level of community sentences and custody.

a) Community Sentences  (paragraphs 5.20 – 5.21)

All existing community orders are to be abolished and replaced by a single community sentence. Sentencers will be able to select from a menu of options to create a sentence which is suitable for that individual. The menu will include:

It is hard to envisage how this will impact upon sentencing patterns. One might anticipate that it could result in erosion of the tariff with quicker progression to custody and it might lead to courts piling on an array of interventions where a single order would previously have been made. Alternatively, it may make little difference. It might be noted that the discussion is prefaced by a comment that ‘community sentences are still not tough enough’.

The implications for sentences available in the youth court are unclear – see below for a further discussion of this point.

Wilful and persistent breach of the new community sentence could result in custody even where the original offence did not warrant it (paragraph 5.48).

b) Custody

Custodial powers of the magistrates’ court are to be increased from six months to 12 months for a single offence with the facility for a further increase to 18 months. The intention is to reduce the number of cases that go to crown court. Unsurprisingly, the power of the magistrates’ court to commit to crown court for sentence (having retained jurisdiction for trial) will be abolished (paragraphs 4.19 and 4.24). (The corresponding power of the youth court was abolished on the introduction of the detention and training order.)

Custody Plus (paragraphs 5.22 – 5.29)

All short term sentences of up to 12 months will be replaced by custody plus – which like the DTO is to be served partly in custody and partly in the community. The maximum period in custody will be 3 months followed by a period of compulsory supervision for up to 9 months (making a total maximum sentence of 1 year). In the case of multiple offences, the maximum is likely to be 15 months with a possible 6 months in custody.

For 18 – 20 year olds, custody plus is to be supplemented by a going straight contract. The contract will cover the custodial and community elements of the sentence and lay out the programme with which the young person is expected to comply and specify rewards and sanctions associated with participation and non participation. The contract will be drawn up by a case manager (there is no clarity about who that might be) and the prisoner will ‘make payments from their prison pay, both to make reparation to the victims and to help finance the support of the case manager would provide on release’ (paragraphs 6.28 – 6.30). (In medieval times, prisoners were responsible for making their own arrangements for food so there is ample historical support for such an approach.)

Custody Minus (paragraphs 5.30 – 5.32)

Custody minus is effectively a suspended custodial sentence that involves the defendant complying with a programme ordered by the court (made up from the menu associated with the community sentence). Failure to comply with the programme would result in immediate activation of the custodial penalty. The suspended sentence will be abolished on the introduction of custody minus.

Intermittent custody (paragraphs 5.33 – 5.36)

Effectively a form of part time custody for non dangerous offenders. This would allow, for example, a person to go to prison at week ends but remain with the family and retain his or her employment during the week. Alternatively, the time in the community could be used to pursue a specified programme of intervention.

It is envisaged that intermittent custody might be particularly useful for women with dependent children. The regime might be ‘progressive’ with restrictions on liberty declining during the course of the sentence.

Custodial sentences of more than twelve months (paragraphs 5.37 – 5.38)

All determinate sentences over 12 months other than for ‘dangerous offenders’ will involve automatic release at the halfway stage with compulsory supervision until the end of the sentence. The community programme will be determined before release by the probation and prison service and will be made up of elements drawn from the community sentence menu. Failure to comply will involve return to custody.

This in effect abolishes discretionary release in the case of sentences over 4 years and there reduces the role of the Parole Board.

Custody for Violent and Sexual Offenders (paragraphs 5.39 – 5.44)

The White Paper makes it clear that there will be a substantial overhaul of measures to deal with violent and sexual offenders. These will include an indeterminate sentence with a minimum tariff after which the person will remain in custody until the Parole Board says that he or she no longer represents a risk to the public.

(The proposals for longer custodial sentences are mirrored – with some differences – in suggested measures for young people. For further details, see the section below on proposed changes to the youth justice system.)

It is hard to ignore the contrast in the White Paper between what is proposed for community sentences – simplification through one order – and custodial measures – complication through proliferation. There is probably a very good reason for that contrast. 

Generic changes to the criminal justice system

The White Paper contains a large number of proposals for reform of the criminal justice system that will, presumably – although it is not always clear -, apply, by default equally to children and young people as to adults.

1. Review of Police and Criminal Evidence Act

PACE, it is suggested, may impose ‘excessive or unnecessary burdens’ on police investigations and is to be reviewed (paragraphs 3.10 – 3.11). For instance, the current time limits on detention may be unrealistic and inflexible and the sheer level of detail in relation to procedures and suspect’s rights can get in the way. Taking arrested persons to the police station to be interviewed may be overly bureaucratic and take too much police time.

2. Conditional bail prior to charge (paragraphs 3.36 – 3.37)

The police are to be given the power to impose conditions of bail prior to charge  – subject of course to judicial safeguards (that’s all right then). The measure is:

‘in the interests of an innocent, wrongly identified suspect, as well as in the interests of victims and witnesses’.

The innocent, wrongly identified subject, against whom there is currently insufficient evidence to charge, may find it difficult to appreciate the Government’s concern for their interest in this instance.

Given the increasing pressure on police and YOTs to have in place arrangements for bailing for final warning assessments, this measure could potentially be used extensively for young people.

3. Changes to bail decisions  (paragraphs 3.44 – 3.45)

Where a defendant commits an imprisonable offence of bail, the court will ‘weight the court’s discretion against granting bail’ (which may mean refuse bail). The presumption in favour of bail was removed where there were further offences on bail by the Criminal Justice and Public Order Act 1994 – so this provision must mean more than that.

In addition, there will be a presumption (initially piloted in high crime areas) that those who test positive for class A drugs will be refused bail unless they consent to treatment.

Currently the CPS can only appeal granting of bail where offences carry a maximum of more than 5 years in custody. That restriction is to be removed – so that the prosecution will be able to appeal any bail decision in relation to an imprisonable offence.

4. Courts’ knowledge of previous convictions, other changes to rules of evidence and guilty pleas

It is proposed that courts are made aware of previous convictions at the point of deciding whether or not to retain jurisdiction or send the case to crown court (paragraph 4.23). (In practice, this already happens in many areas with young people aged 12 –14 years in any event.)

Similarly it is proposed that courts will more routinely have access to a defendant’s previous convictions at the point of trial (paragraphs 4.54 – 4.59). Decisions as to admissibility will lie with the court. The Government is to consult on guidelines to inform court’s decision making in respect of this issue.

There are also to be changes in relation to the admissibility of hearsay evidence – so that evidence may not always have to be given in person and witnesses will be able to refer to notes and original statements (paragraphs 4.60 – 4.62).

In addition, discounts for early guilty pleas will be clarified with the introduction of a sentence discount tariff. In the crown court, judges would indicate, at the defence’s request, what the maximum sentence would be should the defendant plead guilty at that stage (paragraphs 4.42 – 4.44).

5. Dispensing with trial by jury

The crown court will be able to dispense with juries in cases of serious and complex fraud cases and the trial will then be heard by the judge alone (paragraphs 4.28 – 4.62). The Government intends to consult on whether to extend this option to other complex and lengthy trials (paragraph 4.31)

The White Paper also suggests that consideration be given to allowing a judge to sit alone in cases where there is ‘a serious risk that the jury will be subject to bribery or intimidation’ (paragraphs 4.32 – 4.33).

On a more positive note, defendants will be able to elect to dispense with a jury trial in the crown court providing the judge agrees. Examples of where this might be beneficial would be in highly publicised cases – eg murders of high profile TV presenters whose initials might be JD – or where the nature of the allegations may prejudice the jury – such as cases involving sexual offences against children.

6. Changes following trial

The current rule of double jeopardy  - which prevents someone being tried twice for the same offence - will be changed to allow a second trial for some serious offences where new evidence comes to light (paragraphs 4.63 – 4.66). This change is in line with a recommendation of the Stephen Lawrence inquiry and will apply retrospectively.

 The prosecution is to be given a new right of appeal against a court’s decision to terminate the trial before or at the end of the prosecution case (paragraphs 4.67 – 4.68).

Proposed changes to the youth justice system

1. ASBOs, ABCs and individual support orders

Consideration is to be given to extending the use of ABCs (acceptable behaviour contracts) for anti social behaviour which is not serious enough to warrant an ASBO. These were piloted in Islington and involve parents and children agreeing a contract about future behaviour (paragraph 8.25)

At the same time, the use of ASBOs for young people is to be extended. In particular for people under 18 subject to an ASBO, there will be a new measure available requiring them to undergo ‘counselling or educational activities’. The Individual Support Order, as it will be called, is required because ASBOs can only prohibit not require the subject to do anything / provide support (paragraph 8.24). It might be remembered that there was some concern about the ASBO being a civil order with a lower burden of proof than that required in criminal proceedings. One counter to this objection was that the ASBO does not require any action on the part of the subject other than not doing bad things. That justification will not however be available in the case of the ISO.

Note: See also the section below on Parenting provision.

2. Victim liaison

Victim liaison officers will be appointed to provide cover for all 154 YOT areas, as resources become available, to promote participation in restorative justice and reparation initiatives (paragraph 2.49).

3. Drug referrals

Where a young person is reprimanded or the police take no further action, the YOT would not normally intervene. For those young people where there may be substance misuse concerns, referral to substance misuse treatment services is to be piloted in ten areas with a view to national implementation (paragraph 8.36)

4. Remand provisions

‘Remand foster arrangements are to be extended to include highly supervised and supported foster placements for persistent young offenders on bail’ (paragraph 3.41).

Remand fostering on bail? It will be particularly focussed on 10 – 11 year olds.

Staying with that age group, courts are to be given a power for 10 –11 year olds to require local authorities to report within 48 hours on how it would exercise its responsibilities if a remand to local authority accommodation were made. The court will also be able to order the LA to investigate the child’s circumstances and report back to the court within 48 hours on whether grounds exist to apply for a care or supervision order in family proceedings (paragraph 5.58).

It is not clear why these measures only apply to 10 – 11 year olds, what will happen to the child during the 48 hour period, what happens if grounds for a family proceedings application are found or how it would work in areas where youth courts do not sit frequently enough to consider a report back within 2 days. The proposals are however interesting and would help to reinforce SSD responsibilities.

Where an adult offender is convicted of an offence and the court is intending to make a community sentence, the court can order that he or she is tested for presence of class A drugs in his or her body. This power to order a drugs test is to be extended to children and young persons under 18 (paragraph 8.35).

5. Referral orders

There is to be legislation broadening the discretionary use of the referral order to those who plead not guilty and those in court for a second time for a different type of offence (paragraphs 7.35 – 7.36)

Note: See also the section below on Parenting provision.

6. Community Sentences

The Government is to legislate to increase the maximum action plan order to 12 months and to allow additional requirements to be attached to the order. These will include:

§         Drug treatment

§         Curfews

§         Intensive fostering

§         Residence requirement

§         Intensive supervision and surveillance (paragraphs 5.53 – 5.54)

In case anyone is wondering how such an order would differ from a supervision order, the answer appears to be that the whole of the community sentence framework for children and young people will be subject to consultation in order to simplify and improve it (paragraph 5.55). Reading between the lines (or at least perusing the final pages of the YJB review), the long term intention seems to be to abolish the supervision order. Whatever one’s views of that appalling prospect, it seems to make little sense to implement changes to the action plan order now while reviewing the whole of the community sentence framework over the longer term.

The implications of the changes to the adult sentencing framework for the youth justice system pending the above review are not clear. There appears to be two practical possibilities given that a generic community sentence could not coexist with a strengthened action plan order:

§         CROs, CPOs, CPROs and DTTOs simply disappear from the youth tariff for 16 and 17 year olds.

§         These orders remain but are then available only for 16 – 17 year olds since they will have been abolished in the adult arena.

The former option appears more likely.

7. Custody

It is intended to explore a version of custody plus to allow more flexibility to vary the length of the custodial element of an order (paragraph 5.61).

Legislation is to be introduced for those serving longer sentences (presumably over 2 years), to be released automatically at the half way point of sentence but supervised until the end of the order (similar to the proposal for adults) (paragraph 5.61). 

Those sentenced for the most serious violent and sexual offences will be released at the discretion of the Parole Board at any point up to the end of their sentence subject to licence until the end of the order (compared to current release from the half way point but no later than the ¾ stage of the sentence) (paragraph 5.62).

8. The grave crimes provisions (paragraphs 4.35 – 4.37).

Young people charged with grave crimes are to be tried in a ‘strengthened’ youth court – presumably that means with greater sentencing powers – presided over by a judge and two magistrates. While this would remove such young people from crown courts, they would also lose their right to jury trial. The Government is considering leaving discretion as to venue, with the crown court, in the case of 16 – 17 year olds.  (For an alternative, rather better proposal which removes young people from crown court and preserves jury trial, see Nacro’s Children who commit grave crimes.)

In relation to young people who would currently appear in crown court because they are jointly charged with an adult, the Government’s preferred option is to give the crown court the discretion to decide whether the youth should be tried in the crown court or the adult tried in the strengthened youth court.

9. Parenting provision

The Government wants more parenting orders to be issued with ASBOs (paragraph 8.46).

Courts are to be given the power to make a parenting order when a young person is given a referral order (paragraph 8.46).

Educational supervision orders are to be extended so they are triggered following a ‘pattern of exclusion from school’. These ESOs will ‘carry parenting orders with them’ (paragraph 8.47). So let’s see: the school excludes a child, the education welfare service then takes action against him or her because he or she is no longer attending school and then parents are made subject of an order to attend classes because the school excluded their child. Sounds fair.

The use of parenting classes is to be extended to young people who are themselves parents as an element of both a custodial or community sentence. The wording suggests that this element will be mandatory in all such cases (paragraph 6.49).

Finally, consideration is to be given as to how more fathers can be made subject of parenting orders (paragraph 8.46).