Select committee: Justice Committee
12th Report: Children and Young People in Custody (Part 1): Entry into the youth justice system
HC 306
Published 12 November 2020
Justice Committee Children and young people in custody Report on parliament.uk ↗
At a glance21 recommendations and 4 conclusions · Government response published 10 February 2021 (deadline 12 January 2021)
The government's response
Summary written by Accountability Index from the government's response. It is not the government's own words.
The government welcomes the Committee's report and agrees that "more can be done" on multi-agency working and data on diversion, but declines to review the age of criminal responsibility or sentencing options for first-time offenders.
- On data and evaluation, it agrees "more can be done to collect data on diversion schemes"; the YJB has collected data on Community Resolutions and other informal outcomes since April 2020 and "will explore publishing" it once a full year of sufficient quality data is collated.
- It states it "does not have any current plans to either review or change the age of criminal responsibility", saying children aged 10 and over can tell bad behaviour from serious wrongdoing and that age 10 allows early intervention.
- On first-time offenders pleading guilty, it states it does "not consider that there is evidence to warrant a review of sentencing options", citing Referral Orders as an effective tool.
- On remand, it says a review of custodial remand for children is under way, with publication of the final report "now planned for spring 2021", and it accepts disproportionality in the system is a concern.
What the committee recommended 25
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Sources
- 12th Report: Children and Young People in Custody (Part 1): Entry into the youth justice system ↗The committee's report, HC 306, parliament.uk
- 9th Special Report - Children and Young People in Custody (Part 1): Entry into the youth justice system: Government Response to Committee’s Twelfth Report of Session 2019–21 ↗The government's response, 10 February 2021, parliament.uk
Recommendations and conclusions 25
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1
Although fewer children enter the youth justice system than used to be the case, those... Recommendation (the committee's words)Although fewer children enter the youth justice system than used to be the case, those who do are more complex individuals. The cohort includes children who have mental health or substance misuse issues. Some have previously been excluded from school; many are, or have been, looked-after children. The complexity of the issues that these children have faced, as shown in the graph above, highlights the need for a whole-system approach involving a range of public agencies beyond those of the criminal justice system, and we recommend that much greater priority be given to this in the development of future policy and practice.
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2
We recognise the important role that out-of-court disposals, both formal and informal, play in diverting... Conclusion (the committee's words)We recognise the important role that out-of-court disposals, both formal and informal, play in diverting children from formal criminal justice processes and consider them an integral part of the youth justice system. We note that data collection on the effectiveness of such schemes is patchy at best, particularly for informal, non-statutory diversion schemes, which make up around 40% of all out- of-court disposals. Although data is collected on formal out-of-court disposals, we have an incomplete picture of how many children are diverted from entering the criminal justice system.
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3
We recommend that the Ministry of Justice and Youth Justice Board work together to start... Recommendation (the committee's words)We recommend that the Ministry of Justice and Youth Justice Board work together to start collecting data centrally on non-statutory, informal diversion schemes, including (but not limited to) data on how many complete a diversion scheme, the impact on reoffending, health outcomes and education outcomes.
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4
We agree with the Chief Inspector of Probation’s recommendation that a national evaluation of the... Recommendation (the committee's words)We agree with the Chief Inspector of Probation’s recommendation that a national evaluation of the impact and effectiveness of out-of-court disposals be carried out. We recommend that the Ministry of Justice commission such an evaluation, which should consider the impact and effectiveness of formal and informal out-of-court disposals.
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5
We note that there are inconsistencies in the provision and practice of diversion schemes across... Recommendation (the committee's words)We note that there are inconsistencies in the provision and practice of diversion schemes across England and Wales. We recommend that the Ministry of Justice and Youth Justice Board work together to set out national guidance on out-of-court disposal work. As suggested by the Centre for Justice Innovation, this guidance should include an evidence base for out-of-court disposals, examples of good practice and a framework for data recording.
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6
There is significant support for diversion and demand for informal, non-statutory services. Recommendation (the committee's words)There is significant support for diversion and demand for informal, non-statutory services. For diversion schemes to function well, they need to be sufficiently funded. Investment in upstream service provision should be prioritised. We recommend that the Ministry of Justice work with the Youth Justice Board to review current funding arrangements and ensure that funding adequately reflects the pre-court diversionary work being carried out by youth offending teams.
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7
We agree with the Ministry of Justice’s priority of diverting children away from the criminal... Recommendation (the committee's words)We agree with the Ministry of Justice’s priority of diverting children away from the criminal justice system and support early intervention work such as Liaison and Diversion schemes. We are aware that Youth Liaison and Diversion schemes may not be included in the current evaluation taking place of adult liaison and diversion schemes and recommend that the Ministry of Justice commission an evaluation into the effectiveness of Youth Liaison and Diversion schemes. This evaluation should include the number of children who have been diverted away from the criminal justice system as a result of such schemes.
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8
We are aware that children coming into contact with the criminal justice system may not... Recommendation (the committee's words)We are aware that children coming into contact with the criminal justice system may not meet the criteria for generic child and adolescent mental health services, despite presenting with multiple needs. We recommend that the Ministry of Justice increase access to mental health support for all children and young people who need it. The Ministry should set out how this will be achieved and resourced.
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9
The age of criminal responsibility in England and Wales is a contentious issue with substantial... Conclusion (the committee's words)The age of criminal responsibility in England and Wales is a contentious issue with substantial arguments in favour both of the status quo age of 10 and an increase in that age. We are not persuaded that it should be immediately increased, but given the arguments in favour of raising it and the fact that the age in England and Wales is lower than in broadly comparable countries, we consider there is a case for reviewing the age of criminal responsibility.
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10
We recommend that the Ministry review the age of criminal responsibility, considering the data available... Recommendation (the committee's words)We recommend that the Ministry review the age of criminal responsibility, considering the data available from Scotland and from broadly comparable European and other jurisdictions in which the age is higher than 10 at which it stands in England and Wales. We recommend that the Ministry report on the implications of raising the age in England and Wales to 12 and to 14, including the likely effect on reducing the number of children in custody and alternative methods of disposing of children beneath those ages who have committed serious offences. We recommend that if it concludes that 10 should remain the age of criminal responsibility, the Ministry set out the evidence and reasoning to justify an approach the Minister of State recognises as one that differs from the average.
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11
We are aware of the work the Ministry of Justice and Youth Custody Service have... Recommendation (the committee's words)We are aware of the work the Ministry of Justice and Youth Custody Service have done since publication of the Lammy Review to address disproportionality. The youth justice population has changed considerably in the past 10 years, but children from BAME backgrounds continue to be disproportionately represented, with outcomes getting worse in some areas. We are particularly concerned about the disproportionate number of children held in custody who are from BAME backgrounds - 51.9% of the whole cohort as of May 2020. Race disproportionality is significant and fundamental, visible in every part of the youth justice system. We recommend that the Ministry of Justice set out what resource has been allocated to addressing disproportionality. We are not convinced that disproportionality has satisfactorily been “explained or reformed”. The Ministry should also provide the Committee with detailed research setting out why these communities are so 48 Children and Young People in Custody (Part 1): Entry into the youth justice system disproportionately represented in each part of the system, including the cause of their disproportionate imprisonment. The Ministry should set out what action is being taken and resources allocated.
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12
It is not clear whether diversion schemes disproportionately benefit White children compared with their BAME... Recommendation (the committee's words)It is not clear whether diversion schemes disproportionately benefit White children compared with their BAME counterparts, nonetheless, the figures on first- time entrants to the system are concerning. Without centrally collected data on diversion rates, we cannot gain an accurate picture on who is being diverted and who is not, and it is therefore difficult to understand whether diversion schemes are being disproportionately used. In adopting our previous recommendation that the Ministry of Justice and Youth Justice Board work together to collect data on informal diversion schemes, the two bodies should include demographic information in that data.
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13
BAME children are disproportionately remanded to custody and some of the children remanded to custody,... Recommendation (the committee's words)BAME children are disproportionately remanded to custody and some of the children remanded to custody, will not then go on to receive a custodial sentence. The Youth Justice Board should update the Committee on the findings of their commissioned research. We agree with Transform Justice, that the disproportionate use of remand has not satisfactorily been explained, and we recommend that the Ministry of Justice provide an explanation of why the levels of BAME children being remanded to custody are disproportionately high. This explanation should include comparative data on the numbers of BAME children and other pleading guilty and differences in the types of offences of which BAME children and others are accused, in particular where they are likely to result in remand in custody. The Ministry should also set out the steps it is taking to prevent unconscious bias in decision-making.
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14
We note that the number of children on remand is high and that two thirds... Recommendation (the committee's words)We note that the number of children on remand is high and that two thirds of children given a remand to youth detention accommodation did not subsequently receive a custodial sentence. Multiple factors appear to contribute to these numbers: an increase in serious violence; lack of credible community alternatives; and limited amount of time available to put together an alternative bail package may all be contributing factors. We welcome the MOJ’s current review of youth remand, but request more detail on what that review is covering. The Ministry should also set out the timeframe in which they intend to complete the review and publish its results and any action plan.
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15
We were concerned to hear reports of children being remanded to custody pending psychiatric reports. Recommendation (the committee's words)We were concerned to hear reports of children being remanded to custody pending psychiatric reports. Evidence received suggested that this is unnecessary and potentially damaging for a child. We ask the Ministry of Justice to set out how many children have been sent to custody pending a psychiatric report. We recommend that the Ministry set out what steps it is taking to prevent this from happening.
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16
Referral Orders may be appropriate in some circumstances, but there appears to be consensus that... Recommendation (the committee's words)Referral Orders may be appropriate in some circumstances, but there appears to be consensus that more flexible sentencing options would be beneficial. We recommend that the Ministry of Justice review current sentencing options for children with a view to introducing a Youth Rehabilitation Order as a sentencing option for first-time offenders pleading guilty.
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17
We agree that the introduction of a feedback loop between the Youth Court (magistrates and... Recommendation (the committee's words)We agree that the introduction of a feedback loop between the Youth Court (magistrates and district judges) and Youth Offending Teams and the young person may help improve transparency and support rehabilitation. The Ministry of Justice should review current sentencing options, with a view to introducing a feedback loop.
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18
Delays have a fundamental impact on all those involved in proceedings. Recommendation (the committee's words)Delays have a fundamental impact on all those involved in proceedings. The Ministry of Justice and HMCTS should set out what is being done to specifically address delays in the youth justice system and manage any existing backlogs. The Ministry should include details on what the current capacity is in the youth courts, and what plans exist to increase capacity.
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19
Under the principle that punishments should fit crimes, we are concerned that children who turn... Recommendation (the committee's words)Under the principle that punishments should fit crimes, we are concerned that children who turn 18 while waiting for proceedings against them to begin are then dealt with and sentenced as adults. In particular, this is alarming when it happens simply because of delays in bringing cases to court. Defendants may have no control over delays, but may face profoundly different outcomes simply because a birthday has passed. There is significant potential for injustice here, and we believe that proceedings and sentencing should be carried out on the basis of the circumstances prevailing at the time the offence was committed, including the age of the offender. We recommend that the Ministry of Justice legislate to ensure that those who turn 18 while waiting for proceedings against them to begin are automatically dealt with in the youth justice system and sentenced as children.
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20
Children and young people going through the court system have very distinct needs, many having... Conclusion (the committee's words)Children and young people going through the court system have very distinct needs, many having neurodevelopmental and communication needs. They may not fully understand proceedings. Every opportunity must be made to ensure that children are not unfairly disadvantaged; everyone should be able to understand and fully participate in proceedings.
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21
We agree with the Royal Colleges’ recommendation that the Registered Intermediary Scheme be made available... Recommendation (the committee's words)We agree with the Royal Colleges’ recommendation that the Registered Intermediary Scheme be made available to vulnerable child defendants. We recommend that the Ministry of Justice set out how it will extend this scheme to ensure that children have access to adequate support. The Ministry should also set out how all children, regardless of specific needs, are supported through the criminal justice process to ensure that they fully understand the process and are able to participate in an informed and full manner.
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22
The youth criminal justice system can be complex to navigate for children and young people,... Recommendation (the committee's words)The youth criminal justice system can be complex to navigate for children and young people, particularly as children reach court proceedings. We recommend that direct recruitment to the youth magistracy be introduced, which would allow magistrates to specialise in the youth justice system from the outset. We also recommend that the Ministry of Justice and Her Majesty’s Courts and Tribunal Service consider enabling peer advocates to have an increased role in youth court system.
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23
We reiterate the importance of data collection here; backlogs have a knock-on effect on the... Conclusion (the committee's words)We reiterate the importance of data collection here; backlogs have a knock-on effect on the system, and it is imperative that we understand what the current situation looks like if we are to address it going forward.
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24
The Covid-19 pandemic has affected every area of the criminal justice system, including youth justice. Recommendation (the committee's words)The Covid-19 pandemic has affected every area of the criminal justice system, including youth justice. The Committee appreciate that Covid-19 has presented 50 Children and Young People in Custody (Part 1): Entry into the youth justice system the youth courts with numerous challenges. Delays affect all participants in court proceedings; defendants awaiting trial will spend longer in custody on remand or on bail in the community, and victims will wait longer for justice. We invite the Ministry of Justice to set out the number of outstanding cases in the youth courts and what steps are being taken to ensure that cases are dealt with expeditiously.
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25
Covid-19 has necessitated a shift to remote hearings, but we have heard concerns from witnesses... Recommendation (the committee's words)Covid-19 has necessitated a shift to remote hearings, but we have heard concerns from witnesses about their use. We accept that this is a necessary interim measure in response to the pandemic, but the Ministry of Justice should set out what work is being done to ensure that all parties to a proceeding are adequately supported during remote hearings. We reiterate our previous recommendation, that the Ministry should urgently commission a review that evaluates the effect of Covid-19 measures in the magistrates’ courts and the Crown Court. This review should also consider the specific effect Covid-19 measures have had on access to justice and fairness of outcomes for children and young people.