New YRO + ISS Pilot introduces a more punitive approach which may prove counter-productive

Summary

On 3 July 2023, the Police, Crime, Sentencing and Courts Act 2022 (Youth Rehabilitation Order with Intensive Supervision and Surveillance) Piloting Regulations 2023 brought Parts 2 and 3 of Schedule 17 of the PCCSCA 2022 into force.

This means that, in the areas prescribed and until 3 January 2025 when the pilot ends, courts sentencing youths to a Youth Rehabilitation Order with Intensive Supervision and Surveillance (YRO with ISS) now have the power to impose a higher number of days in connection with the activity requirement of the sentence. It also directs that an electronic whereabouts monitoring requirement is included as part of the sentence.

Details

Youth Rehabilitation Orders are tailored, community-based sentences given to youths to address their specific needs, reduce the risk of harm to the public and their risk of re-offending through requirements such as supervision, activity, exclusion, residence, and education. The sentence can last between six months and three years. In the year ending March 2016, 7,000 youths were sentenced to YROs, accounting for 37% of all youth community sentences.[1]

YROs with ISS are imposed when the offence committed is imprisonable and the sentencing court opine that its’ seriousness warrants a custodial sentence. In the case of children under 15 years of age, the court must be satisfied that they are a persistent offender. It must be considered as an option before a custodial sentence is given. The ‘ISS’ includes curfew, supervision, and extended activity requirements, as a minimum. Electronic monitoring is often imposed unless the court deem it inappropriate to do so. Activity requirements should range between 90 -180 days.

ISS may also be attached to conditional bail or as a condition of licence following release from custody.

As noted above, the pilot (which will run throughout London, the North-East, West Midlands, and Wales) gives courts the power to impose a higher number of days in relation to activity requirements and makes electronic monitoring compulsory for all YROs with ISS.

Part 2 of Schedule 17 specifically amends the statute wording from ‘electronic monitoring requirement’ to ‘electronic compliance monitoring requirement’. Practically, this means that the requirement is to secure compliance with other aspects of the Order during the period specified.

Commentary

Youth Justice practitioners involved in this pilot have already expressed some concerns about these changes in discussions with YJLC.

In relation to electronic compliance monitoring, it has been said that its mandatory inclusion departs from firmly held principles that sentencing children should be individualistic. Further, it appears to contradict previous Youth Justice Board guidance which encourages flexibility when determining the requirements and course of a YRO with ISS. Please see our legal update on this guidance here.

Courts may feel bound to sentence children in way that is antithesis to their individual needs which would have a negative impact on their engagement and eventual rehabilitation.

It is also worrying that services may, unnecessarily, have unlimited access to the location data of a child or young person when it is not needed.

In relation to the increased extended activity requirement, it was noted that courts rarely, if ever, sentenced to more than 91days. With longer periods of extended activity, there runs the risk of a child becoming demotivated which, again, could adversely affect their engagement with the Order. This new power also moves away from the individualised and ‘child-first’ approach previously championed in the youth sentencing sphere.

It is important that sentencing children and young people does not become a tick box exercise that is overly punitive for no reason. Since the main purpose of sentencing children is rehabilitation, courts should bear in mind which requirements, and how many of them, will actually enable a child, and services that support them, to address the root causes of their offending and engage them in a meaningful way to prevent recidivism.

 

Written by
Kitan Ososami, Pupil Barrister , Red Lion Chambers

 

[1] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/585897/youth-justice-statistics-2015-2016.pdf accessed 20 July 2023