Secure colleges and the Criminal Justice and Courts Bill (Part 2 and Schedules 3 & 4) House of Commons Report Stage/Third Reading briefing

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1 Secure colleges and the Criminal Justice and Courts Bill (Part 2 and Schedules 3 & 4) House of Commons Report Stage/Third Reading briefing Introduction The Criminal Justice and Courts Bill (the Bill) legislates for the introduction of secure colleges as a form of youth detention. Plans for secure colleges were set out in the government s response to the Transforming Youth Custody (TYC) consultation, published in January TYC also set out plans to improve resettlement and existing educational provision in Young Offenders Institutions (YOIs). The Government s stated aim in introducing secure colleges is to save costs, put education at the heart of youth custody and reduce reoffending. Construction of a 320-bed, 85million pathfinder secure college will begin next year. Secure colleges will hold girls and boys between 12 and 17 years of age. The Children s Right Alliance or England (CRAE), the Howard League for Penal Reform (HL) and the Standing Committee for Youth Justice (SCYJ) are seriously concerned by aspects of the plans for secure colleges. 1. Overview We welcome the Government s ambition to improve education in the children s secure estate. We are, however, concerned that nothing in the Bill reflects this ambition. As the Bill stands, it simply allows for the building of a very large new children s prison. There is a lack of detail in the legislation about how secure colleges would run. As a result, parliamentarians are being asked to sign up to a proposal about which there is lack of clarity. The Bill does not, for example, specify the extent of the education and other services, which children in these institutions can expect. While some detail must be left to secondary legislation, the primary legislation should set out the minimum requirements for the operation of secure colleges, and the parameters within which those private companies who will run secure colleges must operate. This is particularly important given that the Secure College Rules the secondary legislation in which a lot of the detail will later be found will not published until after enactment. What we do know about the plans for secure colleges raises serious concerns about how children will be cared for and kept safe. We believe the secure college model is fundamentally flawed: large institutions with a very varied population are not the answer to reducing costs in youth justice. For these reasons we cannot support the plans for secure colleges. Please support Amendments 16, 17 and 18 Amendments 16, 17 & 18 removes the introduction of the secure college, and associated provisions for contracting out the secure college, from the bill 2. Child safety and well-being

2 The secure college would become the largest custodial institution in the country for children. The pathfinder will hold 320 children. This is to achieve economies of scale and thereby save costs. 1 Large institutions are/can be violent and intimidating, and struggle to provide the type of relationships and services which keep children safe. A high proportion of children in prison have complex needs, including problems with mental and physical health, speech and language, drugs and alcohol, and histories of abuse and family breakdown. Small secure units, such as secure children s homes (SCHs), with well-trained and highly qualified staff, and high staff to child ratios, are able to provide intensive support for these children. They are safest and have the best outcomes for detained children. 2 The clearest evidence of this is that, of the 16 deaths of children in custody since 2000, all occurred in young offender institutions (YOIs) and secure training centres (STCs) the largest types of institutions in the secure estate for children. None occurred in SCHs. Jake Hardy and Ryan Clark, both of whom recently killed themselves in custody, were detained in the largest YOIs in the country. Both of their inquests found a plethora of failings. Size The Government has said that The size of an institution is not in itself a barrier to success. However, a review of youth justice by the Centre for Social Justice found institutional size to be an important determinant of culture 3. This is a view shared by the former HM Chief Inspector of Prisons, Anne Owers, who, in giving evidence to the Justice Committee s enquiry into effective sentencing, suggested that it is very evident that, on measures of safety, respect, purposeful activity and resettlement, smaller prisons are more effective: [T]hat is because they provide an environment in which people are known, in which relationships can develop, in which people are often closer to home. 4 The Havana Rules (United Nations Rules for the Protection of Juveniles Deprived of their Liberty) also provide that secure institutions for children should be small-scale and the number of juveniles detained in closed facilities should be small enough to enable individual treatment (Rule 30). Trying to achieve success through economies of scale risks replicating the failures of new very large prisons, such as Oakwood and Thameside, in the adult estate. 5 The Government say large prisons will save costs through economies of scale. But cost savings can be made in other ways, such as reducing the custody population i and reducing re-offending by giving children effective, holistic support in custody and through the gate. Location The size of secure colleges means only a few institutions would be needed to imprison the entire population of children in the secure estate. As a result, many children will be imprisoned far from home, making it difficult to maintain links with family and with the local services which should support them whilst in custody and when they leave. Detaining children far from home makes it difficult to maintain relationships with friends and family which has a negative impact on rehabilitation ii, oversight by children s services is more difficult, as are visits from social workers, which is particularly damaging for looked after children. Resettlement and service continuity are far more difficult when children are detained far from home. Smaller, local units enable staff to more effectively establish links to local services and education providers iii in order to ensure children can continue their learning post-release. iv Please speak to Amendment 12 Amendment 12 places a duty of the Secretary of State to cater for the health and wellbeing of detained children 1 Impact Assessment: Transforming Youth Custody 2 They helped me, they supported me : achieving outcomes and value for money in Secure Children s Homes (2014) 3 Centre for Social Justice (2012) Rules of engagement; changing the heart of youth justice, p Anne Owers in Justice Committee (2008) Towards effective sentencing Fifth Report of Session , 184-ii, Q375 5 Khan L ((2010) Reaching out, reaching in: Promoting mental health and emotional well-being in secure settings, London: Centre for Mental Health, p43

3 Clause 19, page 20, line 30, at end insert (14) The Secretary of State must make arrangements to ensure there is adequate specialist provision to cater for the health and wellbeing needs of all young persons detained in a secure college. 3. Future of Secure Children s Homes We are concerned about the implications of the secure college policy for SCHs, which currently detain the most vulnerable children. A study published in April 2014 shows that SCHs improve outcomes for children by providing a safe environment and atmosphere for children, they are able to achieve positive outcomes because of the combination of staff, environment and the personalised and holistic regime designed for each child. 6 We are concerned that far too many very vulnerable children will eventually find themselves in secure colleges, rather than SCHs. The Government has said that it is committed to maintaining some places in SCHs. However, SCHs are run by local authorities meaning that the Ministry of Justice is unable to make this commitment. Without a mechanism of national accountability for SCHs, there is a real risk that the entire sector will disappear. The Government has said that the most appropriate placement for each child will be decided by the YJB on a case by case basis. However, in the event that no SCH places are provided by Local Authorities, there will be very little choice open to the YJB other than to place vulnerable children in a secure college. Please speak to Amendment 13 Amendment 13 - requires the Secretary of State to ensure sufficient SCH places are available. Clause 19, page 20, line 30, at end insert (14) The Secretary of State shall make arrangements to ensure that sufficient places are available in secure children s homes to enable young persons, for whom detention in a secure children s home is deemed more appropriate by the relevant authority than detention in a secure college or young offender institution, to be so detained. 4. Girls and younger children The pathfinder secure college will hold 320 children over the age of 12. The government intends girls and younger children to be held in the secure college. In contrast, YOIs only hold boys who are 15 or over. In 2012/13, 95% of children in custody were male, 96% were years old. This means each secure college will hold a very small number of young children and girls with a large number of older boys. This creates serious, unprecedented, safeguarding risks. Additionally, it is likely that the regime will be designed around the majority s needs, thus disadvantaging girls and young children. The Government has said that different groups of children, including girls and younger boys, will be held in separate units in the secure college. We are not convinced that this would adequately address the safeguarding concerns. In the rest of the secure estate, there has been a move away from split-sites which have been discredited. Split-site prisons are difficult to run, and require children to be locked up for longer periods, in order to prevent different groups of children from coming into contact with each other. Children held in split-sites consistently reported poorer experiences that in dedicated YOIs. A report by HM Inspectorate of Prisons states: As with previous reports, the experiences of young men in dedicated sites was broadly more positive than those in split or mixed sites. Notably, young men in dedicated sites were less likely to say that they had ever felt unsafe in their establishment. They also reported better 6 They helped me, they supported me : achieving outcomes and value for money in Secure Children s Homes (2014)

4 experiences with healthcare and were more likely to be involved in purposeful activity. In light of these findings, the move by the YJB towards dedicated sites is encouraging. 7 The Government refers to the fact that SCHs currently hold boys and girls and older and younger children successfully in suggesting that secure colleges will also be able to do so. However, we do not consider this to be an appropriate comparison because the ratios in SCHs are far closer and the institutions are smaller. These smaller units are able to operate safely because: Rather than requiring the young person to fit into an inflexible regime, the SCHs place the young person at the centre and provide a service that encompasses all of their needs in order to enable them to achieve positive outcomes. 8 Conversely, in larger split-sites, the regime is inevitably designed around the dominant older age group. Please speak to Amendments 14 and 15 Amendment 14 girls excluded from secure colleges Clause 19, page 19, line 16, at end insert (2A) A young woman may not be placed in a secure college establishment under subsection (1)(c). Amendment 15 younger children excluded from secure colleges Clause 19, page 19, line 16, at end insert (2A) No person who is aged under 15 shall be detained in a secure college establishment under subsection (1)(c). 5. Education and support: staff qualifications and the lack of detail in the Bill Improving education in custody is a welcome ambition but building a new prison is not necessary to achieve it. The minimum of 85million that the pathfinder secure college will cost could be better spent and the MoJ could build on its recent successes to save costs in the long term in other ways. v Secure colleges are an expensive experiment at a time when youth justice budgets are being stretched. Yet the proposals for secure colleges have no evidence base, no small-scale pilots have been tested and there is little detail in either the Bill or TYC about what they will look like most is left to Regulation (Secure College Rules), which the Government say will not be developed until the Bill is enacted. Parliament is being asked to approve plans in the absence of evidence or detail. For example, there is no detail on staff to children ratios, the education or support to be provided vi, how the education on offer will be developed, or how secure colleges will manage and educate a large, complex population. vii In addition, highly trained, experienced, engaging and qualified staff will be key. Yet there is a lack of detail about the qualifications secure college staff will need, or the support and training they will receive. The Government say that they want providers to innovate in the running of secure colleges. However, we have seen no evidence that they have developed minimum requirements or the criteria against which providers proposals will be assessed. This is commissioning backwards: usually commissioners set out requirements and providers demonstrate how they will meet them. Please speak to Amendment 10 Amendment 10 provides minimum standards for staff in the secure college Schedule 4, page 74, line 17, at end insert Staff 4A (4) All staff employed as teachers, counsellors or nurses at a secure unit must hold qualifications as one of the following 7 HM Inspectorate of Prisons Annual Report (2010/11) 8 They helped me, they supported me : achieving outcomes and value for money in Secure Children s Homes (2014)

5 (a) qualified teachers; (b) accredited member of the British Association of Counsellors and Psychotherapists; and (c) registered nurse (children). 6. Restraint and the use of force The Bill sets out that an secure college custody officer may use reasonable force to ensure good order and discipline (GOAD) if authorised to do so by secure college rules (Schedule 4, (8(c)) and (10)). Using force to maintain good behaviour has proved dangerous in the past, having been linked to the deaths of children. Because it is so dangerous, the use of force should be limited to situations in which it is necessary in order to keep children or staff safe. Permitting force in order to maintain GOAD is so broad it will allow force to be used in almost any situation. Primary legislation needs to be clear and definitive on limiting the circumstances in which force can be used. This is too important to be left to be regulated in the Secure College Rules. Children s prisons can be run without using force for GOAD. SCHs have never used restraint for GOAD. In 2008 the Court of Appeal ruled that using force to maintain GOAD was unlawful because it amounted to inhuman or degrading treatment and the Government had not shown that use of force to maintain GOAD was necessary. This breached Article 3 of the ECHR. viii In addition, these provisions would not be compatible with the UN Convention on the Rights of the Child. ix The Government cannot use arguments about convenience and efficiency to justify this dangerous policy. The Court of Appeal ruling said: It is hardly necessary to say that if the Secretary of State was indeed influenced in his policy of introducing PCC to enforce GOAD in STCs but not in SCHs by any need to cover defects in staffing provision in the former, commercially run, establishments, then that would be fatal to any prospect of justifying that policy in ECHR-compliant terms. There has been no significant change in circumstances which is likely to make the use of force necessary for GOAD now, when it was not necessary in Therefore, we consider that this provision in the Bill to be unlawful. Please speak to Amendment 11 Amendment 11 limits the circumstances in which restraint may be used in secure colleges to those where there is an imminent threat of injury. Schedule 4, page 77, line 20, leave out from where until the end of line 21 and insert a young person poses an imminent threat of injury to himself or others, and only when all other means of control have been exhausted. For further information contact: Paola Uccellari on Jen Chambers on or Anna Boehm on The contents of this document do not necessarily reflect the views of all member organisations of the SCYJ. i Reducing the custody population results in significant savings. In response to a recent Parliamentary Question, the government said: The budgetary savings to the YJB delivered by each planned reduction in the youth secure estate since total 76 million. (HC Deb, 4 March 2014, c810w) ii A review of recent inspections of the six under-18 YOIs in England shows that on average only 34% of children found it easy or very easy for friends and family to visit.

6 iii The average length of stay in custody is 107 days (See TYC, paragraph 12). This is not a lot of time for young people to progress with their learning. There will need to be effective links between local education providers and custodial institutions if children are to continue their learning post-release iv The importance of joining-up custody and community was stated in the TYC green paper. This is not reflected in the Bill. Detaining children far from their homes makes joining-up more difficult. v For instance, since , reductions in the child custody population has saved 76 million. (HC Deb, 4 March 2014, c810w) vi TYC (e.g.para 11) says that detainees will receive holistic support. It is not clear what this would mean in practice. vii Delivering education in an SC will be very different to delivering learning in an outside school or college due to young people entering and leaving custody at different times and having a wide variety of other needs. viii R (on the application of C) (a minor) v Secretary of State for Justice [2008] EWCA Civ 882 ix In 2010 the government made a commitment to have regard to children s rights when developing law and policy affecting children. Article 19 of the the UN Convention on the Rights of the Child (UNCRC) protects children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. Article 37 of the UNCRC requires state parties to ensure that every child deprived of liberty shall be treated with humanity and respect for their inherent dignity. The proposals to authorise the use of restraint techniques run counter to these provisions.

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