This Bill proposes significant change across the criminal justice system, including how children and young people are sentenced and how they are managed in the community. The bill is currently at the Committee stage; Following its second reading in the House of Commons in March 2021, the passing of the controversial Bill was subsequently pushed back by a few weeks and it is now not expected back in Parliament until the summer.
The Bill proposes a number of amendments to the youth justice system. The key proposals are:
- The creation of a statutory duty which would require the court to consider the welfare of the child when deciding whether to remand a child into custody;
- Strengthening the ‘necessity’ condition so that remand to youth detention can only be imposed when the child’s risk cannot be safely managed in the community and in the absence of a viable alternative;
- Strengthening the ‘real prospect of custody’ test when considering a remand to custody so that it the court must be of the opinion that the prospect of a custodial sentence is ‘very likely’;
- Significant changes are proposed to Detention and Training Orders (DTOs). This includes the removal of the current system of specified lengths in favour of giving sentencing courts more discretion as to the length of DTOs, providing that the period is between 4 and 24 months. In order to justify this change, there is a complementary proposal that time spent on remand or bail subject to a qualifying curfew condition and an electronic monitoring condition is counted as time served and credited against the custodial section of the Detention Training Order;
- Changes to Youth Rehabilitation Orders (YROs). Notably, these include increasing the maximum daily curfew from 16 to 20 hours (although the maximum number of weekly curfew hours will be unchanged), extending activity requirements under Intensive Supervision and Surveillance from 6 to 12 months, adding electronic monitoring of children’s whereabouts and making Youth Offending Teams the Responsible Officer for YROs with an electronic monitoring requirement;
- Introducing a statutory obligation for the courts to record their reasons in writing for imposing custodial remand on a child and for this written record to be provided to the child, their legal representative and the YOT. This provision requires the courts to indicate that they have considered the welfare of the child in their decision and the best interests principle and whether it would have been possible to remand the child into the care of the local authority as an alternative. This obligation will also reinforce the existing presumption of non-custodial remand by ensuring the courts consider remand to local authority accommodation as a first step;
- Increasing the time spent in custody for children convicted of certain offences from the current halfway point to two-thirds of their custodial sentence length. This would apply to children sentenced to terms of imprisonment of more than seven years for serious violent or sexual offences including includes manslaughter, section 18 GBH and sexual offences for which a life imprisonment may be imposed.
A number of the broader proposals set out in the bill will also have particularly significant consequences for children and their rights. The main areas of concern are:
- The introduction of new duties for local authorities to collaborate and plan to prevent and reduce serious violence. This involves plans for the sharing of information by institutions such as schools and youth custody authorities with the police. The bill also proposes the introduction of “Serious Violence Reduction Orders” (“SVROs”) which would allow the police to search without grounds any person subject to such an order. At this stage SVROs are not proposed to apply to children, however there are concerns about whether this may change and, in any event how the orders will affect children;
- The bill sets out plans to expand the use of live links in courts which have raised concerns as to how effectively children are able to participate in remote court proceedings.
- Rehabilitation periods will be reduced meaning that criminal records will become ‘spent’ faster.
- Changes to protest law and the introduction of new offences and harsher sentences in this area risk criminalising more children.
Concerns have grown during recent years over the increased use of custodial remand for children. The Bill’s focus on ensuring custodial remand is a last resort for children when refused bail is very much welcomed. By tightening the tests used by the courts and requiring them to record their rationale, the hope is that custody will only be used where absolutely necessary. However, the Government must also focus on ensuring that the right support and placements within local authorities are available for non-custodial remand and that funding to those areas is prioritised. Additionally, clearing the backlog of trials in the youth courts to ensure that children are not held on remand for extensive periods of time must be a priority.
Changes to YROs will inevitably place additional responsibilities and burdens on Youth Offending Teams and the Government needs to consider whether these already overstretched and underfunded organisations have the resources to take on these changes. Furthermore, the proposals have the potential to increase the number of children who breach their YROs and end up back in Court.
However, the proposal to extend the time spent in custody for children convicted of certain serious offences from the current halfway point to two-thirds of their custodial sentence is seriously concerning. This move runs contrary to the overarching principles when sentencing children and young people, and is not supported by any evidence to suggest that longer sentences aid youth rehabilitation. This change, together with the amendments to DTOs, is likely to result in significantly increased numbers of children in custody.
Whilst a number of the Bill’s proposals are welcomed, the Bill’s overall focus on punitive elements demonstrates that the Government has missed the opportunity to make more meaningful reforms to the youth justice system. Crucially, the bill makes no reference to raising the age of criminal responsibility (which the United Nations Committee on the Rights of the Child recommended be addressed in 2016). Neither does it account for the many injustices in the current system affecting young people who turn 18 during criminal proceedings. Further, the bill fails to effectively address the increasingly prevalent issue of child criminal exploitation.
For those wanting further information on the scope of the Bill’s impact on children we highly recommend reading the extensive briefing recently published by the Alliance for Youth Justice (“AYJ”). The AYJ has commented: “This Bill supposedly sets out a radical new approach to sentencing. But in reality, it represents a raft of missed opportunities for necessary and meaningful reform, failing to address burning injustices in the youth justice system and is set to exacerbate existing inequalities. A truly radical approach, covering wide-ranging issues of policing, crime, sentencing and courts, could have had transformative potential. But these measures signal a regressive and punitive direction of travel, set to entrench existing problems rather than taking the necessary and urgent action to address them.”
We will provide further updates as the Bill passes through Parliament.
Freya Colvin (Hodge Jones & Allen)
& Ruth McGregor Hamann (Youth Justice Legal Centre)