Independent Commission on Youth Crime

Response of the Independent Commission on Youth Crime and Antisocial Behaviour

to the

Ministry of Justice Green Paper

Breaking the Cycle

Effective Punishment, Rehabilitation and Sentencing of Offenders

March 2011

About the Commission

The Independent Commission on Youth Crime and Antisocial Behaviour is chaired by Anthony Salz, Executive Vice-Chairman of Rothschild. It is hosted by the Police Foundation with financial support from the Nuffield Foundation.

Its principal terms of reference have been to:

1) Identify a set of principles for:

  • responding fairly, effectively and proportionately to antisocial behaviour and offending by children and young people;
  • minimising the harm that the antisocial and criminal behaviour of young people causes to themselves and to society.

2) Assess the strengths and weaknesses of existing responses to youth crime and antisocial behaviour in England and Wales against these principles by:

  • gathering evidence from research, statistics and other literature
  • consulting with relevant organisations, individual experts and stakeholders, including young people themselves
  • supplementing the evidence obtained with a series of visits to relevant locations in the United Kingdom.

3) Investigate and identify alternative approaches, drawing on promising practice in the United Kingdom and other countries.

4) Devise a blueprint for an effective, just, humane and coherent response to children and young people’s antisocial and criminal behaviour in England and Wales that reflects the fundamental principles that have been identified.

5) Produce proposals for the sustainable reform of relevant services for children and young people’s services, including youth justice procedures, that are based on sound evidence.

The Commission published its report Time for a fresh start / Amser am gychwyn newydd in the summer of 2010.

A book of supporting evidence A New Response to Youth Crime, edited by Prof David J. Smith and written by leading international experts, was published at the same time by Willan

Introduction

  1. The Commission welcomes the Green Paper Breaking the Cycle. Consistent with the terms of reference of the Commission, we are responding to those of its proposals that concern the sentencing and rehabilitation of children and young people who offend.
  1. We agree with Ministers (Foreword, p1) that an intelligent sentencing framework, coupled with more effective rehabilitation, is needed to break the cycle of crime and custody in England and Wales that currently creates new victims. Their declaration that the 75 per cent reconviction rate within a year among young offenders completing custodial sentences is unacceptable accords with the Commission’s view, set out in its report Time for a fresh start.
  1. The Commission, likewise, wishes to see “a fundamental break with the failed and expensive policies of the past” (p2) and a new emphasis on responses to crime and offenders that are based on sound evidence concerning effectiveness.
  1. We would add that we welcome indications in the Green Paper that the Government may be prepared to abandon the 20-year old tendency in debate about youth crime and antisocial behaviour for political leaders to vie with each other to sound punitive. This counter-productive ‘arms race’ has done nothing to raise public confidence in youth justice, which is at unacceptably low levels (Hough and Roberts, 2004). We are convinced, on the basis of evidence, that expanding the use of restorative justice (especially through engagement with victims) and effective preventive and rehabilitative work offers the best way to gain public trust in the system. Greater trust in the system should, itself, improve its effectiveness.

Response summary

  1. In summary, the Commission:
  • Welcomes the Green Paper’s support for early intervention to prevent offending – and for restorative justice – but considers the Government should do more to specify principles for responding to young, as distinct from adult offenders (7-8).
  • Questions the appropriateness of applying a principle of ‘punishment’ for children and young people who offend, rather than insisting on the need for demanding consequences(10).
  • Supports rehabilitative moves to increase the chances that young offenders will find work by clearing at 18 the declarable criminal records of those convicted of less serious offences (11-14).
  • Endorses the Government’s interest in promoting restorative, out-of-court, disposals and supports the increasing use of restorative approaches in schools and elsewhere, so police are not used as a ‘default’ response to low-level, criminal behaviour (15-16).
  • Recommends use of the Youth Restorative Disposal across all police force areas in England and Wales (17).
  • Proposes that children and young people held at police stations should undergo ‘triage’ procedures and – if facing formal youth justice procedures – be allocated a lead professional from the Youth Offending Team (21-24).
  • Welcomes the Government’s intention to promote the use of restorative justice across the youth sentencing framework, drawing on experience of Northern Ireland’s successful youth conferencing system (25-28).
  • Recommends legislation based on the Justice (Northern Ireland) Act 2002 as the most straightforward means of achieving the incremental introduction of youth conferencing to England and Wales (35).
  • Considers the Green Paper proposal for making the existing system more restorative by adapting the Referral Order and Youth Offending Panels to be more complicated and, in all probability, less effective than pursuing a legislative route (38).
  • Emphasises the evidence that high quality facilitation and training of facilitators have been crucial to the positive experience of youth conferencing in Northern Ireland and hold the key to achieving high levels of victim engagement and satisfaction (39).
  • Agrees with the Green Paper that custody should be used as a last resort for children and young people and urges Ministers to study the positive experience in Canada of legislation that more than halved the rate of custodial sentencing (42).
  • Proposes that existing numbers of children and young people in custody can safely be halved below a thousand at any one time, provided there is adequate reinvestment in prevention, restorative justice and effective community sanctions (44).
  • Agrees that the need to reduce the number of children and young people remanded in custody is urgent and proposes better access to bail accommodation and support packages (45-47).
  • Welcomes the proposals for a single remand order and for amendments to the Bail Act (48-49).
  • Is disappointed that the Ministry of Justice will be contributing most of its anticipated savings on custody to deficit reduction, rather than reinvesting them in interventions that can reduce youth offending and produce further savings for the taxpayer (50).
  • Commends the emphasis on achieving better crime prevention through new funding techniques based on outcomes, but fears the development of new funding sources could be too slow to counter the risk of rising crime at a time of increasing youth unemployment (53).
  • Recommends the creation of an independent institute to disseminate effective practice, committed to high standards of evidence (43, 56).
  • Agrees that inspection of YOTs should form a clearer part of the inspection regime for local authorities and play an active part in securing a shift towards evidence-based practices (60).
  • Urges an end to the practice of prosecuting children and young people accused of grave crimes in the Crown Court, and recommends that they be heard before specialist Crown Court judges in the Youth Court (61-63).
  • Proposes that all magistrates, judges, lawyers and others working with children and young people should complete specialist training (64).
  • Advocates a ‘public health’ approach to prevent intergenerational crime and to support children in families with multiple needs, including investment in the most cost-effective, evidence-based approaches (65-70).

Underpinning principles for reform

  1. The Green Paper’s commitment to changes that will “break the destructive cycle of crime” and ensure that more offenders make amends to victims and communities for the harm they have caused (p5, para 3) chimes with the Commission’s call for the response to youth crime to be underpinned by restorative principles.
  1. Although the case for intervention and support for children who exhibit serious behavioural problems from an early age lies somewhat outside the main thrust of the Green Paper, we also welcome the recognition given to the principles and cost-effectiveness of prevention (pp.67-8, para 230) and the need to tackle the drug, mental health and educational problems that can fuel criminal behaviour (p8, para 20). We commend the very relevant conclusions reached by the Independent Report to Government on Early Intervention: The Next Steps by Graham Allen MP (2011).
  1. We consider that the Government should do more than is apparent in the Green Paper to specify principles for responding to young offenders that are distinct from those applied to adults. These should not only reflect the accepted view that it is inappropriate to sanction young offenders to the same extent as adults, but also the potentially greater opportunities that exist to prevent further offending.
  1. In Time for a fresh start, we identify three fundamental pillars of principle for better protecting the public through prevention, restoration and integration (defined as retaining or reconnecting children and young people within mainstream society in ways that enable them to lead law-abiding lives). We propose that interventions or sanctions should be guided by an understanding of children and young people’s welfare needs and that institutions and services responding to children and young people should be kept separate, wherever possible from those for adults.
  1. Examining the principles identified at the start of the Green Paper (p7, para 15), we question whether it is appropriate to assert a principle of ‘punishment’ to children and young people, as opposed to adults. While in no doubt that those who offend should face demanding consequences and sanctions that are proportional to their maturity, offence and offending record, the Commission is also clear that inflicting punishment for its own sake on children and young people contradicts the restorative and welfare principles we consider to be paramount. Sanctions whose only purpose is to cause deliberate hurt also contravene another guiding principle we have proposed that measures taken with young offenders should do no harm (for example, by making their offending worse or impeding their rehabilitation).

Rehabilitation of offenders

Q17: What changes to the Rehabilitation of Offenders Act 1974 would best deliver the balance of rehabilitation and public protection?

  1. We welcome the Government’s interest in radical reform of the 1974 legislation and in doing more to help young people convicted of all but the most serious offences to find places in further/higher education, training and employment by ‘wiping the slate clean’ when they reach adulthood.
  1. The Commission has recognised that employment is one of the key elements in young people’s rehabilitation and that – paradoxically – the requirement to declare their criminal convictions to potential employers is a major barrier to their finding work. Current and former offenders frequently made this point to us during a programme of visits to custodial settings. It was also a key point raised during a consultation and engagement project that we undertook with young people who had experienced the youth justice system (Cleghorn, Kinsella & McNaughten-Nicholls, 2011). The former offenders we consulted did not suppose that crimes involving the most serious violence should be somehow ‘washed away’, but they considered there should be a mechanism in place for other offences that would enable young people to start adult life and employment with a clean sheet.
  1. Research into desistence from crime suggests that offending peaks during the teenage years and that even among those young people who repeatedly commit crime it is often an ‘adolecence-limited’ phenomenon (Pople & Smith, 2010; Hawkins, Welsh & Utting, 2010). We propose that young people convicted of non-serious, non-persistent offending should have any unspent convictions removed from their declarable criminal record on reaching the age of 18 (or not long after if the latest conviction occurred only a few months before). Young people convicted of more serious offences should be allowed to ‘buy back’ their criminal records through a specified period of law-abiding behaviour and/or successful compliance with an order or treatment programme. However, we would make a continuing exception for the disclosure of conviction for offences where enhanced criminal record disclosure is required of individuals seeking to work with children or vulnerable adults.
  1. We noted in Time for a fresh start how our proposals accord with the recommendations published in 2002 from a review group commissioned by the Home Office to examine the operations of the Rehabilitation of Offenders Act. We commend the review group’s report, which has never been implemented, as a suitable starting point for the Government’s reform plans.

Out of court disposals

Q48: How can we simplify the out of court disposal framework for young people?

Q49: How can we best use restorative justice approaches to prevent offending by young people and ensure they make amends?

  1. We endorse the importance that the Green Paper attaches to developing simple out-of-court disposals as an effective means of preventing reoffending among large numbers of children and young people who commit low-level offences. The Government’s interest in promoting diversionary restorative justice, returning greater discretion to police officers and encouraging speedy reparation to victimised individuals, businesses and communities (p64, para 223; pp. 68-9, paras 234-6) is welcome.
  1. We would, nevertheless, highlight the Commission’s view that society needs to reverse a growing tendency to treat police as the ‘default’ response for minor incidents involving children and young people that could be resolved more satisfactorily (and at less expense) by parents, teachers, care workers and other responsible adults. Greater emphasis on prevention and early intervention will help communities, schools and residential care homes to deal more confidently with unacceptable behaviour that, at a low level, may contravene the criminal law. In this context, we would like to see government supporting the increasing use of restorative approaches in schools and other institutions to respond to bullying and other disciplinary issues.

Policing and restorative justice

  1. Where children and young people are the perpetrators of low-level offences requiring a police response, we agree with the Green Paper and the Association of Chief Police Officers that the use of restorative methods at street level can represent a return to ‘commonsense’ policing. The Commission was encouraged by the monitoring information it received from Norfolk Police and data from other forces suggesting that restorative intervention is popular with participants, while providing a more cost-efficient use of police time, compared with procedures for conventional reprimands and final warnings (Shewan, 2009). We would like to see the pilot Youth Restorative Disposal (YRD) and other restorative neighbourhood approaches being implemented in all English and Welsh police force areas. We recommend that the use of YRDs should be included in police clear-up rates for ‘sanctioned detections’
  1. However, as with youth conferencing (discussed below), we draw attention to the importance of training for police officers who facilitate restorative procedures in the community, and of having quality control procedures in place. We share the concerns expressed to us by practitioners that the wider adoption of restorative procedures by police should not lead to any dilution in the quality of the intervention provided.

Police discretion

  1. The Commission shares the Government’s concern that young offenders, under the current system of out-of-court disposals are automatically escalated to a more intensive disposal when they reoffend, regardless of the circumstances or severity of the offence (p68, para 234). We would generally welcome a simpler, less rigid system in which children and young people could receive more than one restorative disposal or reprimand before a final warning was given (pp 68-9, paras 235-6).
  1. We, nevertheless, share other concerns that were expressed to us by some senior police that officers should not be given sole discretion to the invidious extent of appearing to act as ‘prosecutor, judge and jury’ in offences involving children and young people. We think that frontline police should be encouraged to use their judgement and discretion in minor cases where children and young people are behaving antisocially and breaking the law. But where a formal out-of-court disposal is thought appropriate we think the decision on whether to proceed should be taken in consultation with the local Youth Offending Team (YOT).

Triage procedures and lead practitioners

  1. Somewhat surprisingly, the Green Paper does not refer to the extensive piloting of triage procedures in police stations, enabling YOT workers to make an early assessment of children and young people who have been arrested. We understand that the best examples of triage schemes have contributed significantly to lowering the number of ‘first-time’ entrants to the youth court by making it more likely that young offenders who are ‘low-risk’ and admit the offence are referred to out of court disposals.
  1. In addition to limiting the number of children and young people referred to the Crown Prosecution Service (CPS), we view triage procedures as a welcome opportunity to ensure that those with pressing mental health problems, learning difficulties and other social care needs such as alcohol or drug dependency are identified early and referred to appropriate support services.
  1. Triage procedures also provide a starting point for the Commission’s recommendation that children and young people who are subject to formal youth justice intervention should be allocated a lead practitioner, normally from the YOT, to take continuing responsibility for their case. The lead practitioners would help young offenders to comply with any requirements placed on them and make connections with other agencies. The role would include liaison with the police, CPS and health and welfare services, including housing and children’s services.
  1. We consider that the introduction of lead practitioner arrangements would significantly enhance the effective implementation of the Government’s proposals for out-of-courts disposals and youth sentencing and rehabilitation. Children and young people whom we consulted told us how much they would value having one professional to whom they could relate (Cleghorn, Kinsella and McNaughten-Nicholls, 2011). Time for a fresh start also notes evidence we received from Ofsted linking a lead professional system to positive resettlement work with young offenders.

Youth conferencing

Q49: How can we best use restorative justice approaches to prevent offending by young people and ensure they make amends?