Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders. Response by the Children s Legal Centre

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1 Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders Response by the Children s Legal Centre March

2 The Children's Legal Centre (CLC) is a unique, independent national charity staffed with experts on law and policy relating to children and young people. The Centre works in the UK and abroad to promote the implementation of children s rights through the provision of direct legal services, the publication of free legal information online and in legal guides, research and policy development, law reform, training and consultancy. Founded in 1981, the CLC has almost 30 years experience in providing legal advice and representation to children, their parents and carers and professionals throughout the UK. The CLC is funded by grants from central government, the Legal Services Commission, UNICEF, and charitable trusts. The CLC has worked both domestically and internationally to improve the situation faced by children in conflict with the law. It has extensive experience of analysing juvenile justice systems in light of international standards and conducting policy, law and practice reform in this sector. The CLC has also been involved in establishing and evaluating community-based diversion and alternative sentencing services and models in Tajikistan, Georgia and Azerbaijan. The Children s Legal Centre (CLC) welcomes the opportunity to share our experience in response to this Ministry of Justice consultation, Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, published as a Green Paper in December Our response focuses on some of the proposals contained in Chapter 5 regarding youth justice; that is, on the proposals on which we have relevant experience or expertise. The submission does not strictly follow the specified format, however, where particular questions are addressed, we have identified these for ease of reference. I. Preventing Offending by Young People The use of restorative justice approaches (Question 49) The CLC welcomes the proposal to increase the use of restorative justice with a greater focus on prevention and early intervention. The Committee on the Rights of the Child has highlighted the need for juvenile justice systems to focus on the prevention of offending, by addressing the socio-economic root causes of child offending. 1 The Committee supports the Riyadh Guidelines for the Prevention of Juvenile Delinquency 2, stating that prevention programmes should focus on support for particularly vulnerable families, the involvement of schools in teaching basic values (including information about the rights and responsibilities of children and parents under the law), and extending special care and attention to young persons at risk. 3 It is imperative that the main aims of any juvenile justice system are the prevention of offending and the rehabilitation of offenders. We support the proposal to implement a joined up approach to help to address the disadvantages that young offenders may face and encourage the diversion of young people to services such as mental health and family support. According to the 1 UN Committee on the Rights of the Child, General Comment No. 10: Children s Rights in Juvenile Justice CRC/C/GC 10 para 18 2 UN Guidelines or the Prevention of Juvenile Delinquency (The Riyadh Guidelines) 3 UN Committee on the Rights of the Child, General Comment No. 10: Children s Rights in Juvenile Justice CRC/C/GC 10 para 18 2

3 UNCRC, Governments should develop programmes to divert children out of the formal criminal justice system, as this is more conducive to rehabilitation. 4 Governments have an obligation to ensure that there are a wide variety of programmes and measures that children can be referred to. 5 Such programmes should, in practice, offer a wide range of services and support to children and families, as children who offend may have a diverse range of issues that need to be comprehensively addressed. Programmes will inevitably be more effective if a range of support and services can be tailored to the individual needs of each child and should be aimed at reducing offending. The CLC has developed and evaluated several community diversion and alternative sentencing projects in different countries. The evaluations and our experiences in setting up these projects have identified that these programmes will be more effective where a range of different services and support are available, and thorough assessments are completed to establish an individual programme that is tailored to meeting the needs and addressing the root causes of each child s offending. Greater use of parenting orders It is our view that parenting orders should only be used as a last resort, where a parent refuses to respond to other support or training. The Committee on the Rights of the Child has stated that whilst Articles 18 and 27 of the UN Convention on the Rights of the Child confirm the responsibility of parents for the upbringing of their children, States parties to the Convention must provide the necessary assistance to parents (or other caretakers), in the performance of their parental responsibilities. The measures of assistance should not only focus on the prevention of negative situations, but also and even more on the promotion of the social potential of parents. There is a wealth of information on home- and family-based prevention programmes, such as parent training, programmes to enhance parent-child interaction and home visitation programmes, which can start at a very young age of the child. 6 Simplifying out- of- court disposals The CLC welcomes the proposal to simplify out-of-court disposals and encourages the use of diversion to ensure that young people are not drawn into the criminal justice system, which can impair a child s ability to rehabilitate and reintegrate into the community. The Centre supports the proposal that police and prosecutors be given greater discretion to deal with youth crime outside of the court system. However, such an approach must be supported by adequate and ongoing training for such professionals in order that they fully comprehend the range of diversion measures available and how these ought to be applied to children and young people. The Committee on the Rights of the Child has emphasised the need for all professionals involved in law enforcement to have appropriate training on their obligations under the UNCRC, including in relation to the available measures dealing with children in conflict with the penal law, in particular measures without resorting to judicial proceedings. 7 4 Article 40(3), UN Convention on the Rights of the Child 5 Article 40(3), UN Convention on the Rights of the Child 6 UN Committee on the Rights of the Child, General Comment No. 10: Children s Rights in Juvenile Justice CRC/C/GC 10 para 19 7 Ibid para 97 3

4 II. Effective Sentencing for Young Offenders Reducing the need for custodial remand (Question 51) It is an international obligation to ensure that children who come into conflict with the law are only detained as a last resort and for the shortest appropriate period of time. 8 In contravention of this provision, a recent report by the House of Commons Committee on Public Accounts reported that almost one in four children in custody in 2011 are on remand, and of these, three of four would not serve a sentence at the end of their remand period. 9 The CLC welcomes the creation of a single youth remand order. It also welcomes the proposal to ensure that 17 year olds are treated as children in remand legislation as this is in accordance with the upper age limit specified by the UN Committee on the Rights of the Child. However, the transfer of responsibility for the full costs of both court ordered secure remand and secure custodial remand to local authorities must be met with sufficient funding. Legislation ought to include alternative measures to custodial remand and set clear guidance on the circumstances in which children can be held in custodial remand. Strict time frames for review of the decision to remand in custody, in addition to a date for final hearing, must also be specified in legislation. 10 Any changes made to the Bail Act 1976 ought to be accompanied by a strengthening of the use of community sentences to ensure that children who are unlikely to receive custodial sentences are dealt with outside of the criminal justice system. Youth Offending Teams- compliance panels There is evidence to suggest that Youth Offending Teams (YOTs) are insufficiently assessing the needs of young offenders. 11 In order to address this problem, regional fora have been established to ensure that YOTs can share good practice and learning. 12 The Green Paper further raises the concern that there is inconsistency in the manner in which different areas address breaches of community orders and suggests that YOTs create new compliance panels. Whilst such panels may go some way to improving consistency in the application of community sentences, YOTs must also receive additional training on how to assess the specific needs of young offenders and how to ensure compliance with a community order. Please direct inquiries to: Holly Rogalski Legal Research and Information Officer The Children's Legal Centre University of Essex, Wivenhoe Park Colchester, Essex CO4 3SQ Tel: +44 (0) Article 37(b) UNCRC 9 House of Commons Committee of Public Accounts The youth justice system in England and Wales: Reducing offending by young people. Twenty-first Report of Session UN Committee on the Rights of the Child, General Comment No. 10: Children s Rights in Juvenile Justice CRC/C/GC 10 para House of Commons Committee of Public Accounts The youth justice system in England and Wales: Reducing offending by young people. Twenty-first Report of Session p8 12 Ibid 4

5 Kirsten Anderson Head of Research, Policy and Communications The Children's Legal Centre University of Essex, Wivenhoe Park Colchester, Essex CO4 3SQ Tel: +44 (0)

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