Criminal Justice in a Time of Crisis

In their excellent briefing paper Coronavirus: Health care and human rights of people in prison, Penal Reform International recommend that during the crisis “Criminal justice systems must adapt the way they operate to prevent doing harm”.

Much of the discussion so far in the UK has been about whether to postpone trials to reduce risk of disease among those involved; and how to protect people in prison from transmission.

On court hearings, the government have decided that Crown Court trials expected to last more than three days will not commence, and more cases will be heard remotely using video technology. On prisons, the government are looking to increase the numbers of prisoners eligible for release on Home Detention Curfew. While both seem sensible measures, they don’t go far enough and in the case of early release don’t address the fact that far too many prisoners have nowhere suitable to go if and when freed.

What’s needed is a systematic approach which looks to reduce demand on the system as a whole allowing it to focus on its core priorities. For police and prosecutors this means diverting many more minor cases away from the courts.

Many Police Forces have recently moved to a two-tier approach of Community Resolutions and Conditional Cautions but in the current crisis the full range of options – simple cautions, fixed penalty notices, drug warnings – should once again be made available.  In 2018 almost half a million court convictions resulted in low level penalties such as fines or discharges. Many of these could have been dealt with through out of court disposals. The CPS is supposed to prosecute only where it is in the public interest to do so. Given what the public interest currently demands, prosecutors should ensure that out of court disposals have been fully considered before agreeing to take a case to court.

Where prosecution is unavoidable, steps need to be taken to reduce custodial remands to a minimum. In 2017, of those who were remanded in custody pending trial or sentence in magistrates' courts, 58% did not go on to be sentenced to prison - over 13,000 people  – and more than one-quarter of people remanded in custody in the Crown Court did not receive a custodial sentence. Without action, postponing Crown court hearings could lead to an increase in the number detained awaiting trial. Bail, with or without conditions (including electronic monitoring) needs to be encouraged wherever possible as an alternative.

At the end of last month, Wormwood Scrubs in West London held 1053 prisoners, not only well over its uncrowded capacity, but unusually, more than its operational capacity -the total it can hold taking into account control, security & the proper operation of the planned regime. A quarter of its population are on remand- increasing that number just now would be reckless.

As for sentencing, courts should be encouraged by the Sentencing Council to suspend prison sentences as much as possible. If unsuspended imprisonment is deemed necessary, convicted persons who have been on bail before court should be permitted to defer their custodial term for six months.  Probation staff should be encouraged to recall people on licence to prison only when they present a risk to the public.

This kind of demand reduction strategy is arguably sensible at the best of times but looks essential over the coming months.  There are ministers in the government who straddle the Home Office and Ministry of Justice. They together with the Law officers and Judiciary need to get on and implement it.  

Staying Afloat - 20 years of Youth Offending Teams

Despite well aired complaints about the volume of change faced by the criminal justice system in recent years, deep seated institutional innovations remain relatively rare. Last night’s anniversary event for the Association of Youth Offending Team (YOT) Managers at the House of Lords, provided the chance to reflect on the 20 years since New Labour’s creation of local multi- disciplinary teams to provide youth justice services, and the Youth Justice Board (YJB) to coordinate their efforts.

   

The YJB’s founding chair Lord Warner told us that the inspiration for YOTs came from Kent where he had been Director of Social Services in the 1980’s. His predecessor there, the Reverend Nick Stacey had persuaded police, probation and education staff to work alongside social workers on out-of-court disposals, the provision of court reports and the supervision of children serving community-based orders and after release from custody. 

Following the Audit Commission’s scathing 1996 youth justice report Misspent Youth, the incoming Labour government used the 1998 Crime and Disorder Act to alter fundamentally  the landscape in what Home Secretary Jack Straw called at the time the 'secret garden of youth justice'. Rejecting overtures from the Probation Service to take it over, Straw and Warner opted for a local authority led approach, adding health into the new YOT mix which was rolled out nationally by 2000.   

What’s the verdict after two decades of the new youth justice?

In 2007, I described it as the good, the bad and the ugly. Then, the creation of multidisciplinary teams to address the personal, social and educational deficits which underlie so much offending looked undoubtedly positive; and aspects of the way we locked up children including the gross over-representation of racial minorities in custody was shameful.  

What’s changed since then is the dramatic fall in both the numbers of young people being processed in the formal youth system and the population in the secure estate. YOTs deserve great credit for keeping so many children out of court and out of custody by carefully managing the unintended consequences of their interventions. While there is surely further to go, the 724 under 18s behind bars in December 2019 is a major improvement on the annual average of between 2,500 and 3,000 in the years 2000 to 2008. On custody, it's been a game of two halves.

What of the future?

While acknowledging the strengths of YOTs, Charlie Taylor’s 2016 Review of Youth Justice called for the removal of the duty on local authorities to establish them. He was concerned that some YOTs were alienated from other local authority services, operating within a silo and unable to secure the essential contributions of other services that their multi-agency make-up was intended to guarantee.

His findings echoed academic concerns from 2004 that “ the paradox of an imaginative multi-agency YOT structure that has, in general, weak links with child protection colleagues and a weak commitment to child welfare issues is one of the strangest features of the new English system.’ In similar vein, a survey conducted by the AYM this year identified a reduced sense of ownership of the YOT by the local authorities’ partners.

But Taylor’s recommendation that local authorities be given more flexibility in how they deliver youth justice services surely runs the risk of a return to Straw’s 'secret garden'. At the risk of stretching the metaphor, the government’s pledge merely  “to look at" Taylor's idea puts the proposal to remove the requirement for YOTs into the long grass where it probably belongs.

What does deserve serious consideration is how to enhance the work of YOTs through increased professionalisation of their staff and greater powers and  financial accountability. 

There is a growing case for recognising youth justice as a defined occupation, drawing on, but distinct from the disciplines represented in YOTs -as indeed there is in the secure estate. This is an area the Youth Justice Institute established last year is looking to explore further.

As for powers, the Youth Justice Task Force, that worked up the YOT concept after the 1997 election, argued that young people sentenced to custody should be placed by the YOT on behalf of the YJB; and that the latter should look at recharging some or all the costs of secure facilities to the responsible local agencies, so that custodial provision would no longer be a free good. 

Some steps have been taken in this direction, but a Justice Reinvestment approach could drive further reductions in the use of custody and the development more effective local measures to prevent and respond to youth crime. 

The YJB has been relieved of its duties to commission secure places and there were some mutterings last night about its long-term future. Taylor steps down as Chair in a few days and as far as I know  no successor has been announced. Whatever happens there, YOTs need to be kept afloat.