Counting Troubles

Someone- maybe President Lyndon Johnson -famously said that the first rule of politics is to be able to count. This seems to have been lost on the UK Parliament’s Joint Committee on Human Rights who earlier this month published an important report on Youth detention: solitary confinement and restraint.

The report recommends that the use of pain inducing techniques and solitary confinement of children in detention should be banned because they cause physical distress and psychological harm in both the short and longer term and are clearly not compliant with human rights standards.  So far so good, but the report is far from clear about the children it considers to be in detention.   

The report’s summary opens with the claim that “Around 2,500 children are detained by the state in England and Wales at any one time.” When I saw it, I thought the figure looked far too high and have now had a chance to look into it.

The Committee reaches the 2,500 figures by adding together four basic types of institution where they say children are detained. They are broadly correct that 900 children are detained in the Youth Secure Estate in relation to criminal matters - Young Offender Institutions, Secure Training Centres and Secure Children’s Homes. But the Committee is wrong to say that all of these are “under custodial sentences for criminal convictions”. About a quarter are on remand.

The Committee is also right that around 100 children are detained in Secure Children’s Homes (SCHs) for welfare reasons (although its not clear that all of these are aged 10-14 as the Committee claims)

It’s the Committee’s figures on children with mental health issues and learning disabilities which look seriously awry. On mental health, the Committee reports that “around 1,200 children … are detained in Child and Adolescent Mental Health Services (CAMHS) Tier 4 units, under the mental health legislation”.  The source for the 1200 number is given as NHS England, 2017–18 NHS Benchmarking CAMHS Data. This is not publicly available data but the official responsible for it has told me that she thinks there has been some mis-interpretation of it in the Committee’s report as “We did not report data on detentions of children under the Mental Health Act. We only collect data on CAMHS bed numbers and total admissions to these (most of which will be on a voluntary basis, i.e. not detained)”. 

The Committee also reports that around 250 autistic children and children with learning disabilities are detained in Assessment and Treatment Units (ATUs), CAMHS units or other inpatient units, under the mental capacity legislation or mental health legislation. This looks incorrect as well. It’s true that NHS data shows that at the end of October 2018 there were 250 inpatients under 18 with learning disabilities and/or autistic spectrum disorder receiving inpatient care commissioned by the NHS in England. But it is very unlikely that all of these were detained. The data shows that of the 2,350 inpatients of all ages in care at the end of October 2018, 1,140 (48%) were in a secure ward.

A census undertaken by NHS England of young people in secure settings on 14 September 2016 which was published last year reported that 1,322 English young people were  in secure units- 903 in the youth justice system, 107 for welfare reasons and 312 under the Mental Health Act.  There is no mention of any children with autism and learning difficulties.

Maybe I’m nitpicking and what look like counting errors or definitional muddles do not detract from the report’s main conclusions. The Committee may take the view that their recommendations should apply not only to detained children but with even greater force to other children accommodated by the state. But then they should say so in clear terms.

I always worry that if people get the basics wrong, they are likely to get other things wrong as well. If I am right, the Committee should publish an erratum about the figures and explain exactly what they understand by the term detention.  

Unlocking Children

There are two strong reports out today arguing for radical change to the use and practice of custody for children in England and Wales. The End Child Imprisonment Campaign (ECI) has called for the immediate closure of Young Offender Institutions and Secure Training Centres as it launches its "Principles and Minimum Expectation for Children Deprived of their Liberty". The Parliamentary Human Rights Committee wants to see action to reduce the need for restraint and separation, in all secure settings.

But it’s a third report- an inspection of the Young Offender Institution at Cookham Wood in Kent that shows the fundamental absurdity of locking up children in custody. Young people are brought together from across Southern England into an establishment where “complex and dynamic keep-apart restrictions that sought to keep numerous individuals away from each other had a serious detrimental impact on the services provided to young people and arguably the culture of the institution”.

In truth, there is a limited amount of new information or argument in any of the reports- how can there be when the shortcomings and contradictions of locking up children are so well known? If the parliamentarians are right that there are about two and a half thousand children in one type of detention or another in England and Wales, those on remand or under sentence – 834 at the end of February- nowadays account for only a third of them. As the ECI report says “the restriction of liberty is harmful to children, irrespective of their circumstance”, so more credit should arguably be given to youth justice practitioners for driving down the numbers in penal custody over the last ten years; and more attention should be given to the children locked up for other reasons and in other types of institutions.

Curiously, the End Child Imprisonment Coalition make no mention of the proposed Secure School which is due to open in Autumn 2020, a stone’s throw from Cookham Wood. Will it be part of the answer to phasing out prison custody or, like STCs, simply end up adding to the problem? The new school will be more than twice the size of ECI’s proposed maximum of 30 places; and it won’t be close to home for most of its residents. Whether it will meet other child care principles remains to be seen, perhaps soon - bids to run it  were due in by 1^st of February.

Secure Children’s Homes are generally considered the most acceptable form of closed facility. They provide very much better levels of care than YOIs and STCs but even so are not immune from the deep- seated flaws common to all institutions. Recent inspections have found in one a particularly high number of sanctions of single separations for some young people “resulting in significant periods where young people would have been in their rooms on their own”. In another managers did not consistently critically assess the threshold for the use of physical restraint to make sure that this is required to protect young people, or others, from harm.

The Independent Inquiry into Child Sexual Abuse (IICSA) found 242 allegations made in secure children’s homes between 2009 and 2017- lower in absolute terms than were found in in YOIs (440) and STCs (297) but not necessarily when population is considered.   IICSA reported on the number of incidents of alleged sexual abuse as a percentage of the average population of STCs in 2016 but when I asked them to provide the equivalent data for each of the three types of secure institutions - STC, YOI and SCH- ideally for each of the years 2009-2017 or for the whole period, disappointingly they said they were unable to do so.

What all this suggests is that a much more vigorous strategy- and some fresh thinking - is needed to keep children out of institutions of all sorts. End Child Imprisonment want a system in which children should only be deprived of their liberty when they pose a serious risk to themselves or others, and there are genuinely no alternative options for mitigating that risk in the community. There are dangers of unintended consequences in a purely risk- based approach and some high threshold relating to harm already caused will be essential to prevent net widening. Where the Campaign is undoubtedly right is that “the duration of any episode of detention must be as short as possible”.

To achieve that, what’s needed is a recasting of secure custody not as any kind of end in itself but as a very short term means of planning community- based interventions. This should certainly be the approach for the 300 young people currently serving Detention and Training Orders and many of the 250 on remand. A different approach might be needed to those serving longer term sentences for grave crimes – particularly those who will be transferred into the adult estate when they reach 18.  

     

Back at Cookham Wood YOI, the inspectors found some young people, because of keep-apart restrictions, spent almost as much time each day being escorted to and from activity as they did in the activity. In their view “there needed to be some new thinking about how to challenge this restrictive culture and the causes of it”. They are certainly right about that.

  

Deja Vu All Over Again

The Justice Committee has produced a compelling report arguing that criminal justice is facing a crisis of sustainability, that prison is a relatively ineffective way of reducing crime and that the government should commit to a significant reduction of the numbers sent there.

This was their 2009 report Cutting Crime: the case for justice reinvestment significant parts of which resurfaced this week in the result of their latest inquiry “Prison Population 2022: planning for the future.” There’s nothing wrong with reprising what are by and large eminently sound conclusions. It’s always encouraging to read a cross party group of MPs state that “social problems cannot be meaningfully addressed through the criminal justice system” and that “there must be a focus on investing in services to reduce the £15 billion annual cost of re-offending and prevent offenders from continually returning to prison, thereby reducing the size of the prison population”

Had the incoming Coalition government implemented the recommendations from the earlier inquiry, we would not now have been “in the depths of an enduring crisis in prison safety and decency”. Will this week’s recommendations fare any better?

There must be some doubts.  First on the government side, when asked by MPs about his proposals for reducing short prison sentences – enthusiastically endorsed in the Committee’s report- Justice Secretary David Gauke said, “I do not think it can be sorted by the end of the year”. This is what officials call kicking a policy into the long grass. There must be long odds on Gauke still being in post by then and no guarantee that his successor will also hail from the Hurd/Clarke tradition of Conservative penal policy-making.

As for Parliament, the Committee wants MPs to look more closely at the impact on prison numbers when legislating. But while decrying an ever upward trend in sentencing levels, Justice Committee Chair (and member back in 2009) Bob Neill supported the 2015  Criminal Justice and Courts Act which did just that in respect of offences relating to possession of knives and causing death by dangerous driving.  

    

In terms of public attitudes, the 2009 report argued that means must be found for encouraging and informing sensible, thoughtful and rational public debate and policy development on the appropriate balance and focus of resources. This week we heard that “Greater transparency is necessary to enable the public and others to understand the true costs and the challenging and testing nature of decisions which need to be made about public spending on prisons.” There's not much evidence that an emphasis on costs is the best way of persuading people to reduce the use of prison. Nor does it seem a particularly propitious time for a "national conversation" about crime and justice- whatever that might entail.

More promising is the Committee’s argument that improving the sustainability of the prison population will require a review of sentencing legislation which should include the role of the Sentencing Council.  This week’s report quoted from evidence I submitted that the Council had not done enough to “challenge increasing sentence lengths, nor to give more explicit assistance to courts in determining when offences are so serious that only a prison sentence will do”.  Perhaps their current mandate does not permit them to do this- but when, as seems likely, the Justice Committee looks at the Council’s role this year -ten years after it was established- it should consider what more the Council should do to reduce prison numbers and promote community-based rehabilitation- both within its existing remit and with an expanded one.