Reforming youth justice has been one of New Labour’s top priorities but a number of recent reports have cast doubt on whether the current system for dealing with young offenders in England and Wales is fit for purpose.  Last year, Council of Europe Human Rights Commissioner Alvaro Gil Robles concluded that juvenile trouble-makers are too rapidly drawn into the criminal justice system and young offenders too readily placed in detention. He argued that greater attention to alternative forms of supervision and targeted early intervention would more effectively straighten the errant, rehabilitate the convicted and consequently reduce youth crime. Earlier this year, Lord Carlile’s Inquiry into the treatment of children in penal custody recommended severely restricting physical intervention, stopping the strip searching of children and an end to prison segregation. Most recently, research on Anti-Social Behaviour Orders (ASBOs) found the prohibitions they contain are experienced by many young people as unreasonable, and are “often met with ridicule or incomprehension.”

There is no doubting the seriousness of the problems facing young people today. A well publicised survey by the Institute for Public Policy Research has given support to the widely held fear that British youth are on the verge of mental breakdown, at risk from anti-social behaviour, self-harm, drug and alcohol abuse. The IPPR’s call for a broad rethink of youth policy fits well with more focussed concerns about the way we deal with children in conflict with the law.

”From Punishment to Problem Solving – A New Approach to Children in Trouble” argues for a fundamental shift in the way we respond to young people who offend - away from emphasis on cops, courts and corrections and towards tackling the roots of delinquency.  Such an approach comprises four key elements – first, greater prevention, with an emphasis on addressing the educational and mental health difficulties underlying much offending behaviour; second, placing limitations on the way we criminalise young people and introducing  more appropriate forms of  prosecution and courts; third, a wider range of community-based and residential placements for the most challenging young people combined with a phasing out of prison custody; and finally new organisational arrangements within government, with the Children’s Department in the Department for Education and Skills taking over   lead responsibility from the Home Office.

Prevention

With the UK at the bottom of the league table of child well-being in the EU, mainstream services to support children and their families require much greater investment. There is a particular need to tackle exclusion and truancy, which are associated with offending, and to address the growing incidence of mental health problems. On the education side, we need to expand restorative justice programmes in schools and ensure a proper range of provision is available for young people with special educational needs. We also need a much expanded mental health sector so that needs can be identified early and suitable help provided to young people and their families.

Criminalisation

The age of criminal responsibility in England and Wales is lower than most comparable countries and since 1997 there has been a steady increase in the proportion of young offenders prosecuted rather than diverted from prosecution. Indeed the 22% rise in young people under 18 sentenced by the courts since 1997 is  almost twice the increase seen across all age groups in that period.

There is a strong case for raising the age of criminal responsibility to 14 with civil child care proceedings used for children below that age who need compulsory measures of care.  Diversion from prosecution should be more positively encouraged, with much more widespread use of initiatives such as restorative conferencing which can bring home to young offenders the consequences of their actions and give victims a say in the proceedings.

There are strong arguments too for specialist prosecutors to be introduced with the aim of actively diverting children and identifying cases where local authorities should investigate the need for care proceedings. Initial decisions about young people aged 14 to 18 charged with criminal offences should normally be brought before a Young People’s Prosecutor (YPP). As well as having regard to the evidence and the public interest, the YPP would be required to consider the interests of the young person and actively look at ways of diverting cases, for example through conditional diversion programmes. The YPP would have the power to make an order requiring a young person to appear before a Youth Offender Panel and undertake any resulting contract for up to a year. The prosecutor would also have the power to require the local authority to investigate the need for civil care proceedings where the young person does not appear to be receiving proper care and supervision.

Where the YPP considers there is no alternative to prosecution for 14 to 18-year-olds, their case should be brought before a specially constituted youth court. Where there is a plea of guilty, the court should consider whether to order a family group conference in every case prior to sentencing. Based on the Northern Ireland model of conferencing, the aim of this would be to encourage the young offender to assume responsibility for their wrongdoing, make an apology to the victim and do what they can to put things right.

Where such a conference is held, the youth court should be required to take into account any agreements made when considering sentence. The court should also have the power to transfer the case to a civil family court for consideration.

All cases involving young defendants who are presently committed to the Crown Court for trial or for sentence should, in future, be put before the youth court consisting, as appropriate, of a High Court Judge, Circuit Judge or Recorder sitting with at least two experienced magistrates. The only possible exception should be those cases in which the young defendant is charged jointly with an adult and it is considered necessary, in the interests of justice, for them to be tried together. The youth court so constituted should be entitled, save where it considers that public interest demands otherwise, to hear such cases in private, as in the youth court exercising its present jurisdiction.

Serious and persistent offenders

The use of penal custody in England and Wales has remained high in international terms, despite attempts to introduce alternatives at the remand and sentencing stage. Although the Youth Justice Board has aimed to bring coherence to the range of secure establishments, there is still a jumble of responsibilities across government departments. Prison establishments, in particular, are ill-equipped to meet the complex needs of young offenders. There is a need therefore to find urgent ways of reducing the numbers in custody, for example by making local authorities financially responsible wholly or in part for the sizeable costs involved in locking up young people. 

There are a number of ways in which the sentencing framework could be amended better to meet the particular needs of cases involving young offenders. For example, a juvenile equivalent of the custody minus or other form of suspended sentence should be available in the youth court. A definition of custody as a last resort needs to be worked out by the Sentencing Guidelines Council. It should be based on limiting custodial sentences to offenders convicted of serious violent offences where there is a significant risk of further harm, and to those convicted of serious non-violent offences, who are highly persistent offenders and who have repeatedly shown themselves unable or unwilling to respond to community-based sentences.

More fundamentally still, a new form of residential sentence could be introduced to run alongside and potentially replace the Detention and Training Order. Courts would be able to make a residential training order, a new indeterminate order of up to two years or in the case of grave crimes, five years. A residential training order should only be made in cases where the offence is so serious that the young person should be removed from home and the young person has failed to comply with community-based orders. The residential training order should generally be served in open conditions in an appropriate placement designated by the local authority and accredited by the Department for Education and Skills (DfES).Such establishments might include residential schools, adolescent mental health units, children’s homes or foster care placements. In addition, the youth court should be able to rule that a residential training order or part of it should be served in a closed establishment.

The Youth Justice Board needs to be given more of a leadership role in respect of the way secure establishments are provided and run, phasing out prison custody for 15 and 16-year olds and transforming facilities for 17-year-olds. A fundamental review of closed and open residential options available for young offenders should be carried out, with consideration being given to creating a new youth residential service to coordinate them.

Governance

The key principle for responding to children in conflict with the law should be to assist them in growing up into well-adjusted and law-abiding adults. This principle resonates much more strongly with the essential outcomes for children pursued by the Department for Education and Skills – being healthy, staying safe, enjoying and achieving, making a contribution and achieving economic well-being – than it does with  the overarching aim of the Home Office, which is public protection. While there is a case for retaining the Youth Justice Board as a specialist body overseeing youth justice arrangements, it should be sponsored by the DfES. 
 

From punishment to problem solving – A new approach to children in trouble by Rob Allen is published by the Centre for Crime and Justice Studies and available at