Young Adults on Remand

 

Criminal courts should take account of age and lack of maturity when imposing sentences on people between the ages of 18-25. Guidelines say that young adults should be treated less severely when their level of psychological development makes them less responsible for a crime or increases the impact of punishment on them. 

But what about the decisions courts make prior to sentence- in particular whether a defendant should be remanded in custody awaiting trial? Should age and maturity be relevant factors here?

A new report I’ve written for the Transition to Adulthood (T2A) argues that more should be done to keep young adults out of pre-trial detention. For one thing a spell in prison on remand can be just as damaging as a prison sentence- sometimes more so. Earlier this month inspectors sharply criticised the treatment of young adults in prison and, separately, argued that increased time spent on remand as a result of court delays will inevitably add to the anxieties and frustrations of individual prisoners of all ages. “A growing, and increasingly-frustrated remand population has the potential to have a serious adverse effect on the stability of prisons”.  The remand population as a whole grew by 24% during 2020.  

It’s also the case that defendants should only be remanded to custody if they are likely to receive a prison sentence in the event of conviction. As sentencing guidelines make prison terms less likely for under 25s than over 25s, maturity should be taken into account at the remand stage too. But it seldom is.

As the Sentencing Council has recognised, many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. Therefore, a young adult’s previous convictions may not be indicative of a tendency for further offending. This is an important consideration for courts to take into account when considering risk.

Young Adults on Remand finds that -until the pandemic at least- the last ten years have seen a welcome fall in the use of custodial remands. But there is scope for both the CPS and judiciary to incorporate a greater recognition of maturity factors in relevant guidance on remand decision- making for practitioners. Courts in particular should adapt their ways of working to ensure a fairer and more distinct approach to young adults at the remand stage.

Magistrates who routinely deal with children in the youth court may place a higher weight on maturity on the occasions when they sit in the adult court. But youth magistrates (about 15% of JPs) may not always be able to persuade their adult court colleagues of its significance. The view that “he’s 18, he’s old enough to know what he’s doing” is still heard.  

Pre-trial arrangements are very different for under 18s and today’s report argues that the welcome policy of further restricting the use of custodial remands for children should be extended to young adults. In the shorter term, there is a case too for removing young adults, as well as children, from the remit of the emergency law extending custody time limits during the pandemic.    

If custodial remands are to be reduced, sufficient services will be needed to support and supervise young adults on bail, whether from the probation service, local government, NHS or voluntary organisations. And bail information schemes need to ensure that courts are made aware of non-custodial options in individual cases.

The local authority may have continuing responsibilities for young adults who have been in their care and may be able to contribute support which could help secure bail. The report suggests that transferring budgetary responsibility for young adult defendants to a more local level – as is the case for under 18s- could stimulate better provision of community-based measures, including suitable accommodation. Current bail hostel arrangements are inadequate.  

The report also recommends that more is done to monitor bail and remand decision- making in respect of young adults to inform efforts both to reduce custodial remands overall and tackle any disproportionate use for black and minority ethnic defendants.  

Thanks in large part to the determined and longstanding work of the Barrow Cadbury Trust, recent years have seen a growing consensus that young adults aged 18-25 require a distinct and tailored approach from the justice system. Making the necessary changes to law, policy and practice has been a slow and chequered process. Remands are an area where the pressures of the pandemic could help to accelerate progressive change.

Sentencing Trends

 

 

To give effect to its manifesto commitment to introduce “ tougher sentencing for the worst offenders”, the Government has sought both to ensure that more of a sentence is served in prison and to provide courts with options to impose longer terms. It moved quickly to shift the automatic release point from halfway to two-thirds on fixed term sentences of 7 years or more imposed for serious offences- something it had tried and failed to do before the December 2019 election.  

While the change made by the Release of Prisoners (Alteration of Relevant Proportion of Sentence)Order 2020 applies to people sentenced after 1 April 2020, emergency legislation in February made new restrictions on the early release of terrorist offenders retrospective with current and future cases henceforth being considered by the Parole Board at the two thirds point. The Independent Reviewer of Terrorism Legislation  was concerned that as a result  terrorists who served their full sentences would be released unconditionally without licence.

May saw a more comprehensive Counter Terrorism and Sentencing Bill propose a new 14 year minimum Serious Terrorism Sentence with an extended licence period of up to 25 years and restrictions on any early release for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence. The Bill is still in Parliament.

In July a limited consultation was launched on doubling the maximum sentence for assaulting an emergency worker from 12 months to 2 years. It was raised from 6 to 12 months only in 2018. The large majority who responded were apparently in favour, but the MoJ has refused to publish the responses. Legislation is likely to follow next year as part of a raft of measures proposed in September’s White Paper A Smarter Approach to Sentencing.

These will abolish automatic halfway release for a yet wider range of prisoners, increase tariffs for discretionary life sentences, and widen the scope of whole life orders which involve no prospect of release. There are plans to prevent courts departing from minimum mandatory prison terms for repeat offenders.

Alongside these more punitive measures, the White Paper includes some more constructive plans to strengthen community based supervision. The Alcohol Abstinence and Monitoring Requirement (AAMR) or Sobriety Tag came into force in October and another go at Problem Solving courts, a return for deferred sentences and more treatment options are promised.   

If and when enacted, any substantive changes to law will be integrated into the new Sentencing Code which came into force on 1 December, consolidating existing sentencing procedure law into a single act and making the daunting technical task of sentencing significantly more straightforward for judges and magistrates.  It is hoped that the Code will ensure that Sentencing Guidelines are easier to apply than hitherto.

The Sentencing Council has published two new guidelines, on sentencing offenders with mental disorders and on firearms offences. While the former is something of a missed opportunity, the latter breaks new ground by giving explicit reminders of the disparity in punishments being imposed by the courts on white, Asian and black offenders.

This follows research published earlier in the year which found that for three drug offences, when taking into account the main sentencing factors, the sex and ethnicity of offenders were associated with different sentencing outcomes- for example, the odds of a Black offender receiving an immediate custodial sentence were 1.4 times the size of the odds for a White offender.

Drawing  on the Court of Appeal case of Manning, the Council also  published a note reminding courts to bear in mind the practical realities of the effects of the pandemic, and consider whether increased weight should be given to mitigating factors, given that the impact of immediate imprisonment is likely to be particularly heavy for some groups of offenders or their families.

After ten years of work, the Council has conducted a wide ranging consultation about its future priorities. My report for Transform Justice argued that it should be doing much more to limit the use of imprisonment in line with its duty to consider the costs and effectiveness of sentences and that it may need a wider remit to fulfil its potential. This may not be easy to achieve given the “perceptible hardening of the public and political attitude to crime” noted by the Lord Chief Justice in a significant if somewhat depressing speech in December.  Real or not, the perception of a hardening may impact on the root and branch review of parole which got underway in October. 

Two voluntary sector initiatives may help counter the punitive trend. The Sentencing Academy aims to inform public debate and promote effective sentencing practice. It has reviewed the 20 year old scheme which enables victims to make a personal statement in court. In other jurisdictions victims who use the scheme are more satisfied with the sentencing process and there has been no systematic increase in sentence severity as a result- but we don’t know if that’s the case here so a comprehensive evaluation is needed. 

The Prison Reform Trust has established an Independent Commission into the Experience of Victims and Long-Term Prisoners which looks to stimulate fresh thinking on the range of issues from sentencing to parole, particularly in respect of the growing number people serving very long sentences. The experiences of those receiving long sentences when young people have been closely studied by Ben Crewe and colleagues.    

Something is certainly needed to put the brakes on the use of imprisonment which is projected to grow by 25% over the next six years, with demand for places highly likely to outstrip supply.   In the year to June, the average custodial sentence length was the highest in the decade at 19.5 months for all offences and 22.0 months for indictable offences. The custody rate for indictable offences was also the highest in a decade at 35% up from 32% the previous year.

The increases are likely to have been influenced by the prioritisation of cases during the pandemic. The public health emergency has of course had many and various impacts on the work of courts. One minor one seems to have been a delay in progressing the televising of judges’ sentencing remarks which was announced in January.  I was against this back then but might have been more positive had I known about the lockdown to come.    

 

 

A Year in Youth Justice

 

Ironically, a year which saw children in custody spend huge amounts of time locked up in their cells, opened with the Chief Inspector of Prisons Peter Clarke recommending an entirely new approach to the use and practice of separation - situations in Young Offender Institutions (YOIs) where children are unable to mix with their peers or attend activities in the normal way.

Within weeks, Coronavirus effectively subjected almost all children in custody to a form of system wide separation. In May, Clarke praised the swift actions taken to keep children safe from the virus, and the creativity of staff and managers in providing opportunities for children to receive meaningful interaction. By July, he was more critical of disproportionate and avoidable restrictions which had seen most locked up for more than 22 hours for almost 4 months.

Clarke contrasted the suspension of face to face education in the YOIs run by the Youth Custody Service with its continuation through the pandemic in privately run and local authority secure establishments, but October’s inspection of Rainsbrook Secure Training Centre (STC) calls this judgment into question. It found that “children received education work packs to complete in their residential units during most of the Covid-19 restrictions as all education classes were suspended”. Two months later, lack of improvement to a spartan regime prompted a formal demand for urgent remedial action by the Justice Secretary.

In the final annual report of his tenure, Clarke rightly described childrens custody as "a systemic failure" producing "appalling" outcomes for many children. Charlie Taylor, who was to take over from Clarke in November, produced a further scathing assessment in his review of physical restraint, reporting that some staff appear to avoid spending all the time they can with children, have little understanding of why children behave as they do and what adults can do to help,  using force to maintain their position at the top of a hierarchy of violence. As a result of his report, the use of pain inducing techniques is set to be removed from the system of behaviour management in YOIs and STCs by the end of the year.

Clarke’s annual report bemoaned slow progress in implementing the new model of secure schools, agreed as a blueprint for the future in 2016 following Taylor’s first Youth Justice Review. The first school to be run by educational charity Oasis won’t open until 2022.  Unusually, Taylor himself used a piece in the Spectator to blame delays on tortuous bureaucracy in the Ministry of Justice (MoJ) and the controlling instincts of the prison service. Whether running a secure school is compatible with charitable status has also arisen as an issue- although by my reckoning one existing secure childrens home in England is run by a charity – as are four out of five in Scotland. The MoJ has yet to honour its promise to publish the application by Oasis to run the new school although the process for appointing the Director is underway.

Keith Fraser took over from Taylor as Chair of the Youth Justice Board (YJB) in April. One of the Board’s five strategic objectives for 2020-21 has been “to see a youth justice system that sees children as children first, and offenders second.” In response to the Justice Committee in June, Fraser appeared to dismiss this as a matter of branding more than substance. In November, the Chief Probation Inspector,who also inspects youth offending teams (YOTs), thought it important not to lose sight of the second part of the formulation – offender- because of the risks to others presented by a sizable proportion of children known to YOTs.  A debate about the direction of youth justice policy and practice may be on the cards although the key role played by  YOTs – which celebrated their 20^th birthday this year – looks set to remain.  

A further YJB objective has been to influence the system to treat children fairly and reduce overrepresentation. In a somewhat tame report published in November, the Justice Committee wanted to know what the MoJ is doing to address racial disproportionality. More action is certainly needed. Nearly nine out of 10 children from London held in custody on remand are from a black, Asian or minority ethnic background. Encouragingly, a higher threshold for custodial remands was promised in September’s White Paper, sitting alongside less welcome proposals for longer sentences for serious crimes and tougher community supervision.  

While custody has been a bleaker experience than ever, the numbers have thankfully reduced to 535 in October 2020 from 791, 12 months earlier. Projections suggest that number could go up by 75% by 2026.  Much will depend on if, when and how the system gets back to normal as well as the changing nature of the challenges it has to face.   

Leading Council ?

 

It’s not been a great few weeks for those of us concerned about the social, ethical and financial costs of prisons and who want to see fewer people sent to them and for shorter periods.  First the Treasury pledging £4 billion on 18,000 new prison places; second projections confirming they’ll be needed as prison numbers will explode from less than 80,000 to almost 100,000 in the next six years. Finally, a speech from the Lord Chief Justice (LCJ) intent on refuting the notion of “wet, liberal judges being soft on criminals” by giving them credit for increasing sentence lengths as if this were something to be proud of. Who'd have thought it would be left to former News of the World editor Andy Coulson to remind us that prison "doesn't work for the prisoner, doesn't work for society and doesn't work for politicians".   

Lord Burnett is right to call out the more conventional tabloid narrative of soft sentencing as a myth, and to want the debate on sentencing policy to “proceed on fact and not misconception.” He should surely have added evidence of effectiveness as well- and suggested who should lead such a debate.

A new report I’ve written for Transform Justice, -The Sentencing Council and criminal justice: leading role or bit part player? argues that the Sentencing Council, of which the LCJ is currently President, should be doing much more and much better to help develop effective law, policy and practice. Research, public education and policy evaluation should inform an effort to lead a national conversation about the costs and benefits of imprisonment and other responses to crime - something proposed last year by former Justice Secretary David Gauke and endorsed by the House of Commons Justice Select Committee.   

The focus of the Council’s first ten years has so far largely been on producing guidelines for courts. I’d like to have seen these raise the threshold for custodial sentences and reduce their length when they are unavoidable. After all, the cost of different sentences and their effectiveness in reducing reoffending is something they must look at when drafting guidelines. The Council hasn’t undertaken an overall review of sentencing levels (recommended by the British Academy in 2014) but in most cases, it has at least tried to promote consistency rather than raise severity. But its own evaluations have shown that for serious assaults, burglary and robbery guidelines have had an inflationary effect.

Harsher sentencing over the last ten years cannot all be laid at the Council’s door.  Court of Appeal judgments, and a judicial culture which worries more about undue leniency than severity have played a role. And so too of course have politicians, ever aware of the electoral appeal of creating more crimes and tougher punishments.  At the very least, the Council should be assessing the impacts of every new law and policy proposed in this area; but its role could be much expanded. If interest rates are set by a committee of experts, couldn’t levels of punishment? The Council’s remit, membership and budget would need to be revised by parliament, if it took on an enhanced role. The Transform Justice report argues it’s at least worth thinking about.          

It was as a mechanism for better matching the demand for prison places with the available supply that the idea of the Council came about in the mid-2000s.  As things stand now, unless the percentage of cases that end up with imprisonment comes down and average sentence lengths stabilise, the prison system simply won’t cope.  Few expect that the “significant progress in delivering 18,000 prison places by the mid 2020’s” expected by the Treasury will be sufficient.  Something will have to give.

Almost half of the people sentenced to prison – and almost two thirds of the women- receive terms of six months or less. Some of the £4 billion prison building money could be used to strengthen community based alternatives instead. 12 years ago, Rethinking Crime and Punishment showed how the £2.3 billion then earmarked for new prison places could be better spent on making alternative measures work better. Somewhat to my surprise, the then Lord Chief Justice agreed to write a foreword to this self-styled Manifesto arguing that many of its recommendations would undoubtedly enhance non-custodial alternatives and were worthy of serious consideration. 

With this sort of leadership and a renewed and expanded focus role for the Sentencing Council, there’s a chance of avoiding some aspects of what looks like an increasingly dystopian penal future.

 

Straw in the Wind?

 

 Probably 25 years ago, I was part of a delegation from NACRO that trooped along to see New Labour’s Shadow Home Secretary Jack Straw to discuss his plans for youth justice reform. On his desk, lay a copy of Edwin Schur’s “Radical Non-intervention: Rethinking the Delinquency Problem”. The 1973 text from a doyen of labelling theory wasn’t on the face of it the likeliest inspiration for Straw’s emerging plans to end the excuse culture that he thought dominated responses to children in trouble. So it proved, as at one point he brandished the book as an illustration of everything that was wrong with prevailing orthodoxies in work with  young offenders, where , as he would put it once in government,  “there is no punishment, no chance for them to make amends for their crimes and no action to tackle the cause of their offending”.

I was reminded of the incident when reading the introduction to the latest annual report on youth offending services written by the Chief Inspector of Probation, Justin Russell- who happens to be one of Straw’s erstwhile advisers. Russell also takes a swipe at ‘radical non-interventionism’, arguing that while it may avoid the danger of children becoming labelled as offenders,  it does little to provide them with practical help with their underlying needs and may, in reality, amount to something more like benign neglect, in the absence of any other support in their lives. In asking whether diversion from the youth justice system is always in a child’s best interests, Russell is suggesting that policy and practice have once again lost their way.

Russell seems distinctly lukewarm about the mantra ‘child first, offender second’ which the Youth Justice Board has recently embraced as a guiding principle for practice.  He accepts that each child’s own welfare and experience of trauma must be addressed but worries that Youth Offending Teams (YOTs) are losing sight of the second part of the formulation and paying inadequate attention to the risks children can present to other people including their own families. Russell thinks this is more likely to happen when YOTs “become completely subsumed within children’s services departments and lose their separate identity”.

Four years ago, in his youth justice review Charlie Taylor-subsequently YJB Chair and now Chief Inspector of Prisons- took a different view. He was worried that YOTs were too often in a separate silo, unable to get necessary social care, education, housing or health services for children who needed them.  He wanted the requirement for local authorities to establish a YOT to be removed. That recommendation wasn’t accepted, and efforts to integrate youth justice into wider children’s services have had mixed results at best. But is that because the model is flawed, poorly implemented or inadequately resourced?

By suggesting that diversion has gone too far and children's needs are being prioritised over public protection, Russell has reignited an age old debate about the best way to tackle youth crime.  It’s common ground that many of the children who commit offences need a wide range of assistance if they are to achieve their potential. Scholars and policymakers have long disagreed at what stage in their lives and on what basis such help should best be provided -whether as part of the justice system or outside it for example.   

 If it’s a question of help such as speech and language support, mental health treatment or employment training, I wonder about the significance of such disagreements – not least to young people themselves. One of Schur’s surely correct prescriptions is that we must take young people themselves more seriously.

Another of Schur's insights is that some of the most valuable policies for dealing with delinquency are not necessarily those designated as delinquency policies. He is right if he means that ideally, children should have their needs assessed and addressed with as little stigmatising involvement in criminal justice as possible. But in the real world some specific focus on children who harm others sometimes seriously and persistently is surely not unreasonable.  Determining where its limits lie has always been the problem.  

Our absurdly low age of criminal responsibility notwithstanding, the last decade has seen the formal youth justice system doing less and less with fewer and fewer children. In many respects that's a good thing. But it's arguably disclosed a deepening reservoir of unmet need.        

In terms of future directions for youth justice, could Russell’s intervention be a straw in the wind?

 

Same Old, Same Old?

 

There are some useful if narrow recommendations in the first part of the Justice Committee report on children in custody published today. Ensuring those who turn 18 while waiting for a court date should be sentenced as children rather than adults, and providing “intermediaries” to help vulnerable child defendants participate in court hearings, are long overdue. But well done to those who have lobbied for the changes.

It’s been obvious for a while too that the MOJ and YJB need to get a better handle on the various out of court measures which are used for most children in trouble -by better data collection, evaluation and a funding review.  

There is likely to be less consensus about the merits of direct recruitment to the youth magistracy so JP’s can specialise in youth court work from the outset. And whether to make Youth Rehabilitation Orders available for first time offenders at risk of custody could divide youth justice specialists. But the inquiry deserves credit for bringing these matters to attention.

On some of the bigger questions the report is disappointing. MPs want to know what resource has been allocated by the MoJ to addressing racial disproportionality. Given the significance of the issue, why didn’t they simply ask ministers and officials during the inquiry? Or about the court backlog or what’s being done to support participants in remote hearings- both subjects on which the Committee now want information.  

On three substantive questions the Committee has held its fire. They like the idea of a “feedback loop” between the Youth Court, Youth Offending Teams and the young person which may help improve transparency and support rehabilitation. But they recommend only “a review of current sentencing options, with a view to introducing it”. Four years ago, Charlie Taylor’s Youth Justice Review worried that “magistrates can play little or no role in overseeing a child’s progress against the sentence they have passed.” The MoJ rejected his radical proposals for fixing that but promised to explore ways to strengthen courts’ involvement with children they sentence. Something more than another review is needed if anything much is to happen on this front.

That’s even more true in respect of the minimum age of criminal responsibility. Despite England and Wales’s status as an international outlier, the Committee “are not persuaded that it should be immediately increased” from 10. Presumably agreement among the members could be reached only on the weasel words “we consider there is a case for reviewing the age of criminal responsibility”. This seems to fly in the face of the evidence they received. The report claims that “there are …. many organisations and individuals who do not think the age should be increased”. It mentions only one, the MOJ, which it then asks to conduct the review. The Committee does recommend that if the review concludes that the age of 10 should stay, “the Ministry set out the evidence and reasoning to justify it”. But the long grass beckons for this one too.  

As for the headline finding – that meeting the complex needs facing children in youth justice requires a “whole system approach” involving educational, psychological and social services- there are not much more than warm words. Of course, they are the right words, but finding the best ways of delivering these services to the right children, at the best time, and at the necessary scale are not at all straightforward and need much more consideration. 

Perhaps the second report will provide it.

Rules Don’t Apply

Friday’s Sun included a strongly worded comment piece lambasting Covid policy as driven by “Matt Hancock, a fanatic, and Boris Johnson, a muddled old bumbler” and as inflicting unjustified misery and economic mayhem while failing to stop the spread of the virus. No surprise there -newspapers are free to voice a range of views on issues of the day – but more troubling is the fact that the writer of the piece is former Supreme Court Judge Lord Sumption.

He’s no stranger to controversy, admitting in August that he had not himself complied with “some of the law” and suggesting last month that people should decide for themselves whether or not to obey coronavirus laws. He went further yesterday arguing “it is about time we voted with our feet and took back control of our own lives.” Sumption is entitled to his libertarian views and but should he be expressing them?

For one thing it’s a breach of the long standing convention that judges should not comment publicly on the merits, meaning, or likely effect of government policy. For another, The Guide to Judicial Conduct says that judges "should be aware that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary". It also says that "where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular cause or to a lack of even handedness". There’s nothing remotely even handed in what Sumption has to say or the way he says it.

So what? He’s retired and surely he can say what he pleases. Unfortunately for him the Guide to Judicial Conduct makes clear that “a retired judge may still be regarded by the general public as a representative of the judiciary. Retired judges should exercise caution and are encouraged therefore to refer to this guidance so as to avoid any activity that may tarnish the reputation of the judiciary.”

Unfortunately for us, Sumption is not fully retired. He is one of four members of the Supplementary Panel of the Supreme Court so until he reaches 75 in 2023, he can be called upon “when additional judges are needed to form a panel of the requisite number”.

Call me old fashioned, but I’m genuinely puzzled as to how Sumption could now conceivably sit in any court let alone the highest in the land. I’ve made a complaint to the Judicial Conduct Investigation Office but am not expecting much. Sumption is probably a member of the club to whom ordinary rules don’t apply. If that’s the case, as Sumption says about Covid policy “this is worse than unjust. It is insane”.