The Ministry of Justice issued non-statutory guidance on the conditions that can be applied when a child is released from a custodial sentence (a Detention and Training Order1 or a section 91 long term sentence2 or a life sentence3 ). The guidance is designed to prevent punitive restrictions following release from custody such as the imposition of electronic monitoring and Intensive Supervision and Surveillance (ISS) requirements on young people released from custody on a Notice of Supervision. It states that such measures should only be used if necessary and proportionate to effectively manage identified recidivism risks that cannot be managed in less intrusive ways.
When young people are released from custody under a Detention and Training Order or a sentence of section 91 or 96 detention 4 which is for a term of less than 12 months, they may be subject to a Notice of Supervision which can have requirements attached to it. Young people subject to longer section 91 or 96 sentences will be released subject to licence conditions. The attached requirements are designed to prevent further offending. They are not intended to, and must not, operate to safeguard or to punish.
One requirement that can be added to a Notice is ISS. Under ISS conditions, young people must maintain contact with their Youth Offending Team (YOT), comply with any interventions and rehabilitative programmes, and undergo daily surveillance checks including being electronically monitored via a tag and made subject to a curfew. The requirement to be electronically monitored can be added to a Notice independently of an ISS requirement.
Under the new guidance, an ISS or electronic monitoring requirement should only be imposed if it is necessary to manage identified high risks of re-offending and prevent harm, and if it is a proportionate last resort response to the level of risk posed by the child. The guidance introduces a higher eligibility threshold for ISS, aimed at restricting its use to exceptional cases where a serious and prolific young offender presents the highest risk of reoffending.
When assessing the young person’s risk, the YOT need to look at the progress they have made on their sentencing plan rather than their offence [paragraph 11.1].
The proposed content of the Notice must be discussed with the young person and their family [paragraph 11.2].
Depending on which type of institution the young person is being released from the governor / placements team will consider whether the requirements are necessary and proportionate based on evidence provided by the YOT.
This guidance was issued following a campaign called ‘they couldn’t do it to a grown up’ by The Howard League for Penal Reform. The onerous ISS requirements, which if breached can result is the child being returned to custody, could not be lawfully imposed on an adult and in this respect the law places children at a disadvantage. The guidance clarifies the high threshold necessary for the imposition of the requirements but ultimately the law remains unchanged.