Her Majesty’s Inspectorate of Probation’s (‘HMIP’) has published a report into “The experiences of Black and mixed heritage boys in the youth justice system” (the ‘Report’) which raises questions and concerns about the already well-documented overrepresentation of Black and mixed heritage boys in the youth justice system, looking in particular at the lack of support received by such boys prior to their interaction with the system. The report thereby contends that this overrepresentation is entirely avoidable.
The Report listed 18 specific recommendations as follows:
- The Youth Justice Board should: (1) publish data, which refers to separate ethnic groups and which shows how well individual youth offending services are addressing disproportionality; and (2) revise guidance on case management at each stage of the youth justice process to consider diversity, particularly ethnicity and structural barriers.
- The Home Office should (3) publish local and national data on stop and search and ‘release under investigation’ statistics, including outcomes (each of which should be broken down by gender, age and ethnicity).
- The Department for Education should: (4) ensure the special educational needs of Black and mixed heritage boys are assessed and responded to at the earliest opportunity and work with Ofsted to include this in their inspection framework; (5) improve guidance on exclusion to ensure schools monitor disproportionality in exclusion rates and consider the impact of adverse childhood experiences, racism and personal circumstances in their response to Black and mixed heritage boys; and (6) hold academy trust chains and local authorities to account for monitoring rates of racial disproportionality in permanent exclusions and for taking action to tackle this.
- Police area forces should (7) share stop and search and ‘release under investigation’ statistics, including outcomes (each of which should be broken down by gender, age and ethnicity) with Youth Justice Management Boards.
- Local authorities should: (8) provide suitable and timely accommodation placements and support packages for Black and mixed heritage boys who are facing remand or being released from custody; (9) ensure that accommodation and placements provided are suitable and sustainable to meet the needs of children and families moved to a new location as a result of concerns about their safety; and (10) ensure that Black and mixed heritage boys are receiving their legal entitlement to education, including alternative provision when this is deemed necessary, and that the placements are suitable to meet their needs.
- YOS partnership boards should: (11) have a vision and a strategy for improving outcomes for Black and mixed heritage boys, and make sure these are known and understood by YOS staff and partner agencies; (12) ensure that all board members contribute data from their individual services that identifies areas of disproportionality and the action being taken to address them, and that this data is used to develop a joint strategic needs assessment; and (13) have a joint set of partnership targets, for example with schools and children’s services, for improving service delivery to Black and mixed heritage boys, and make sure mechanisms are in place to track, monitor and evaluate outcomes.
- YOS managers should: (14) establish effective processes for gaining feedback from Black and mixed heritage boys on the services they receive and use this feedback to assess, review and improve the quality and suitability of service provision; (15) make sure that staff understand what is expected of them in their work with Black and mixed heritage boys and that they are inducted, trained and supported to work effectively with this group of children; (16) improve the quality of management oversight to make sure that it is sufficiently focused on diversity and what this means in practice and that there are clear escalation routes to address any barriers to Black and mixed heritage boys accessing the services they need; (17) address gaps in specialist provision for Black and mixed heritage boys, either by delivering it in-house or by commissioning it from appropriate local community organisations and evaluate referral and uptake rates for the services provided; and (18) offer suitable and appropriate support and intervention to the parents and/or carers of Black and mixed heritage boys and regularly review the uptake and suitability of this provision.
HMIP’s Report has raised questions and concerns about the support that Black and mixed heritage boys had received from mainstream services before their involvement with the youth justice system. The Report highlighted that there was a general consensus among youth offending services (‘YOSs’) that, had problems and difficulties been addressed earlier in the children’s lives, there could have been a different outcome for them.
Of these problems and difficulties, the Report particularly highlighted that 60 per cent of the Black or mixed heritage boys considered in the Report were, or had been, excluded from school, the majority permanently. Furthermore, in half of the cases inspected there was evidence (where it had been recorded) that the child had experienced racial discrimination and in over a quarter of cases (where information had been recorded) the child had a disability.
Boys interviewed in the preparation of the Report spoke at length about being subject to police stop and search and racial profiling. This was especially significant for those who lived in London. The Report also worryingly noted that its evidence might suggest that Black and mixed heritage boys in the youth justice system experiencing racism has become normalised, not only to the boys themselves, but also to those working with them. In 40 per cent of out-of-court disposal cases and in half of statutory cases, the child interviewed had experienced racial discrimination (where information had been recorded) and in the large majority of cases, the impact of this had not been explored or considered.
It was noted that details about the use of informal out-of-court disposals that do not lead to a criminal record are limited with no data collected being broken down by ethnicity. This means that it is not possible to say with any degree of certainty that they are being applied equally to children across different ethnic groups. This is particularly concerning given that the recommendations for out-of-court disposal outcomes, conditions, and interventions made by YOSs were found to be appropriate and proportionate in less than two-thirds of the cases examined.
Overall, it was concluded that the lack of access to local data on rates of stop and search for Black and mixed heritage boys made it difficult for YOSs and partnerships to assess its impact on over-representation. Similarly, because information on education placements was not being reliably recorded on YOS databases, and detailed and consistent information was not being exchanged at operational levels, it was difficult for services to clearly understand any links between over-representation and school exclusion.
The Report highlights the now well documented overrepresentation of Black and mixed heritage boys in the youth justice system. While the Report can perhaps be criticised for failing to explicitly call out exclusion from education and racial profiling as key factors contributing to this disproportionality it does provide useful statistics which can be used to highlight that linkage.
Despite the Report noting that: (i) police stop and search had become normalised in the lives of the boys interviewed; and that (ii) in 2019/2020 Black people were almost nine times more likely than white people to be stopped and searched, the Report fails to provide any recommendations to the Home Office or the Police area forces other than to collect data on disproportionality in stop and search and ‘release under investigation’ procedures broken down by gender, age and ethnicity. These recommendations appear to conflate race and ethnicity and miss an opportunity to hold the Home Office and Police area forces to account for monitoring and tackling rates of racial disproportionality in Black and mixed heritage boys. Instead, these recommendations focus on data collection which, will not of itself improve the experiences of Black and mixed heritage boys with Police area forces and the Home Office. The Report also misses an opportunity to require that data be kept as to disproportionality in the availability of out-of-court disposals to Black and mixed heritage boys.
Separately, the recommendation that the Department for Education should ensure that schools monitor disproportionality in rates of fixed and permanent exclusion from schools is a welcome statement. As is the recommendation that academy trust chains and local authorities be held to account for monitoring and tackling rates of racial disproportionality in permanent exclusions. However, the focus on tackling permanent exclusions could result in disproportionality in fixed term exclusions.
We can only hope that the Report’s call for better data collection in the future will result in more useful evidence which can in turn be used to bring about change. What is clear is that Black and mixed heritage boys are overrepresented in the youth justice system and that institutional racism is a key pathway for these children.
Thomas Wilson, Associate, Paul Hastings Europe LLP