Unicef (UK) has recently published its report and recommendations following an extensive study into the youth criminal justice system across the United Kingdom (and Jersey) (the “Report”). At the Report’s core is the stark reality that those children who are brought into the legal system are “one of the most vulnerable and marginalised groups in society”.
Split across the four regions of the UK, the Report establishes an accumulative set of 45 recommendations that require implementation if society is to uphold the rights of children who come into contact with the law. The Report identifies a number of positive attributes across the four regions; however, the scales tip towards systemic failings of a legal infrastructure that ultimately punishes before it rehabilitates.
Whilst the intentions and impetus of the four territories is indicative of a desire to put the rights, welfare and development of the child front and centre, the reality is sadly underpinned by the simple fact that the four territories have the lowest ages of criminal responsibility (“ACR”) in Europe. In this article we summarise the Report’s findings in respect of each of the fourth nations, focussing in particular on England.
Key findings from the Report
Under the backdrop of “philosophical transitions” experienced by youth justice in England since the 1970s, most recently impacted by austerity and now (inevitably) COVID-19, the Report identifies the following progressive features:
- The role of youth diversion has increased in prominence, which shift is underscored by the Secretary of State for Justice in the document “Standards for Children in the Youth Justice System”, which mandates a child-first ethos.
- In part driven by the introduction of a specific target in the Youth Crime Action Plan 2008 to reduce the number of first time entrants (“FTEs”) into the youth justice system, child arrest figures have consistently reduced in England. The number of FTEs reduced from 75,270 in 2009 to 11,374 in 2019.
- It is illegal to send sexual images of any person under 18 years of age; however, criminalisation for this offence applies to all individuals irrespective of age. In 2016, ‘Outcome 21’ was introduced, which had the effect of reducing the criminalisation for children of such ‘sexting’ offences.
- The development of the ‘National Protocol on Reducing Unnecessary Criminalisation of Looked-after Children and Care Leavers’ aimed at tackling the disproportionate incidence of such children coming into contact with the law.
- In July 2020, the UK Government announced new legislation aimed at amending the Police Act 1997 so to remove the automatic disclosure of youth cautions, reprimands and warnings.
The Report identifies the following key areas of concern:
- The minimum ACR is still set at 10 years of age, which Unicef recommends be increased to at least 14. This is also applicable to Wales.
- There is a lack of data, knowledge and understanding in respect of the impact of youth diversion on specific groups of children.
- The use of both tasers and ‘spit-hoods’ on children. This is all the more alarming in circumstances where it was announced in March 2020 that police forces in England and Wales would be given £6.7 million to fund the purchase 8,155 tasers. There is a disproportionate use of these devices on BAME children.
- The over-representation of BAME children in the youth justice system generally presents very worrying statistics. For example, across 2017/18, BAME children accounted for 34% of spit-hood use nationally, with this figure increasing to 72% in London.
- Whilst the law recognises the potentially harmful effects of police detention, and therefore that children who have been charged with an offence but denied bail should be placed in local authority accommodation as opposed to police custody, research suggests that this does not ordinarily happen.
- The automatic anonymity in the media of children who come into contact with the law does not apply to those children who appear before adult courts. This is also applicable to Wales.
- Children still feel unable to participate effectively in Youth Court Proceedings, which fact is compounded by an all too often lack of youth justice expertise with legal professionals.
- The continued adoption of segregation and solitary confinement in young offender institutions is unacceptable, particularly when bearing in mind the levels of children on remand that are detained in custody.
- Permanent school exclusions have increased from 4,949 in 2013/14 to 7,894 in 2018/19.
The Report acknowledges that, following devolution, diverting children away from formal youth justice processes, and the stigmatising that comes with that, have been central to the Welsh approach to children in contact with the law. The key positive aspects identified by the Report are as follows:
- The Welsh Bureau Model has been recognised domestically and abroad as an innovative youth diversionary scheme that stresses the importance of the child’s voice.
- The following policy documents advocate a child-centric approach: All Wales Youth Offending Strategy (2004); Children and Young People First (2014); and Youth Justice Blueprint for Wales (2019).
- The reduction in the number of child arrests across Wales was 13,889 in 2010, falling considerably to 3,383 in 2018.
- Youth offending teams have adopted an enhanced case management approach to taking care of children with complex needs.
The Report identifies the following key areas of concern:
- The use of tasers on children.
- Whilst the Bureau Model has been lauded, it is also noted that there is a lack of data, knowledge and understanding regarding how youth diversion impacts specific groups of children.
- There is only one secure care facility in Wales (located in the south), which also accommodates a number of English children.
- There has been a rise in the number of permanent school exclusions, from 89 in 2013/14 to 174 in 2017/18.
Since the publication of the Kilbrandon Report in 1964, Scottish policy has sought to emphasise the needs of the child, and there have been various manifestations of this intent:
- On 1 September 2020, the Scottish Government announced that the United Nations Convention on the Rights of the Child (“UNCRC”) would be fully and directly incorporated into Scots law.
- The emphasis on early and effective intervention (“EEI”), including Children’s Hearings, aimed at limiting the amount of children entering the formal youth justice system.
- In October 2020, the introduction of the “Secure Care Pathway and Standards Scotland”, which stresses children’s rights in the consideration of secure care.
- The amount of children excluded from school has reduced considerably over the last 14 years from 44,794 in 2006/07 to 14,990 in 2018/19.
The Report identifies a number of areas in which Scottish policy remains in general contradiction with to the Kilbrandon philosophy (as well as UNCRC):
- Until 11 June 2019, the minimum ACR was 8 years of age, at which date it increased to 12 years old. The Report recommends that this be raised to at least 14.
- There is insufficient direct participation of children in EEI schemes.
- Whilst this is not common-place, it remains possible for children under 18 charged with a criminal offence to be reported on in the media.
- The potential for tasers to be used on children.
- The significant number of Children from outside Scotland being placed in Scottish secure care accommodation.
- There is a paucity of robust, publicly available statistical data relating to children’s interaction with specific stages of the youth justice system.
The Report recognises that the youth justice process and practice in Northern Ireland reflects the historical political climate in Northern Ireland, notably the legacy of the Troubles and “at times the lack of a functioning executive”.
In that context, the Report notes the following positive features of the Northern Ireland approach to youth justice:
- There have been progressive efforts to divert children away from the formal youth justice system by way of: youth engagement clinics; and youth conferencing.
- In March 2020, it was announced that the Access NI criminal records scheme would be amended in respect of non-court disposals pertaining to children under 18 years old.
The Report sets out the following key concerns regarding youth justice in Northern Ireland:
- The minimum ACR is 10 years of age.
- In addition to tasers, the Northern Irish police are able to deploy ‘attenuating energy projectiles’ on children under the age of 18.
- Whilst Youth Engagement Clinics represent a progressive step, there has been a lack of uptake of legal representation when children are involved with such clinics.
- In the case of youth conferences (a policy of restorative justice), there is a disproportionate number of care-experienced children.
- Routine admission of children to the Juvenile Justice Centre before appearing at court, rather than using this facility as a last resort.
- There has been a consistently high number of children in the Juvenile Justice Centre who are subject to a care order, accounting for 28.1% of the centre’s population in 2018/19.
The Report identifies a number of intersectional concerns across the four nations of the UK, in particular: low ages of criminal responsibility; the use of tasers; over representation of BAME children in the youth justice system; lack of consistent and clear statistical data taking into account demographic differences; and the potential for children to be reported on the media.
Whilst there have been clear positive steps taken over the last few decades, the persisting issues identified by the Report are cause for alarm that the youth justice system across the UK is not as progressive as might be expected as we enter 2021. This is all the more concerning in the context of the pandemic and the concerns and anxieties that have consequently permeated society.
As racial injustice continues to occupy its rightful place at the forefront of both society’s action as well as its shame, little solace can be taken in the statistics related to BAME children in the youth justice system. In the year ending March 2019, the proportion of black children receiving a caution or a sentence was nearly three times higher than the proportion of black children in the population in the 10-17 age bracket. This data alone demands urgent attention if society is going to give substance to its gallant rhetoric of equality; words (and indeed reports) alone will not suffice in actually challenging the root of racial injustice.
Written by Jonathan Robb, Paul Hastings (Europe) LLP
 The ACR in Scotland is 12 (the same as Belgium, Ireland and the Netherlands), whilst the ACR in England & Wales and Northern Ireland is 10 (lower than any other European nation).
 Secure Care restricts the freedom of children who may be a considerable risk to others of themselves in the community