Liberty s response to the Department for Children, Schools and Families Youth Conditional Caution Code of Practice for 16 and 17 Year Olds

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1 Liberty s response to the Department for Children, Schools and Families Youth Conditional Caution Code of Practice for 16 and 17 Year Olds Consultation Paper May 2009

2 About Liberty Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research. Liberty s policy papers are available at Contact Isabella Sankey Anita Coles Director of Policy Policy Officer Direct Line Direct Line: bellas@liberty-human-rights.org.uk anitac@liberty-human-rights.org.uk 2

3 Introduction Liberty has concerns over the growing criminalisation of young people. Negative stereotyping of young people has informed the development of much of the law and policy relating to children over recent years, and this is particularly apparent in the criminal justice sphere. When the reprimand and final warning system for people aged 16 and 17 was introduced in the Crime and Disorder Act 1998 we voiced profound concerns. This two-step system led automatically to court if the young person offended again within two years. The system was inflexible and unjust. It tied the hands of police officers, preventing them from making reasoned judgments on a case-by-case basis about how best to deal with young people with whom they came into contact. It acted as a funnel, channelling young people into the criminal justice system and removing the option of informal intervention as a way of tackling low-level offending. The result was growing numbers of young people embroiled in a criminal justice system which, once entered, it is notoriously difficult to escape. We would therefore welcome greater flexibility in this area and an alternative to the reprimand and final warning system. However, we are not convinced that this will be delivered by the Youth Conditional Caution. We fear that, in practice, youth conditional cautions could operate as a short cut to punishment for 16 and 17 year olds. Section 48 and Schedule 9 to the Criminal Justice and Immigration Act 2008 extends conditional cautions to children and young persons by amending the Crime and Disorder Act The Criminal Justice and Immigration Act 2008 provides for Youth Conditional Cautions to be governed by a Code of Practice - the subject of this consultation - and the Code of Practice is due to be issued under section 66G of the Crime and Disorder Act Requirements for Youth Conditional Cautions Under the Crime and Disorder Act 1998 and the Youth Conditional Caution Code of Practice, the youth must admit to the offence before a Youth Conditional Caution (YCC) can be given. This admission can then be used in a prosecution for the original offence if the youth fails to comply with the conditional caution. While, in theory, a person does have a choice about whether to accept a caution, we would suggest that the reality, particularly for young people, is rather different. The offender may not have a free choice about whether to accept the caution. Although we welcome section 12.1, which explains that particular care must be taken to 3

4 ensure that the young person understands what is happening and the options open to them; in reality the freedom to refuse a caution is likely to be limited by the youth s fear of prosecution and a limited understanding of the options available. The Code of Practice fails to address the practical reality that those suspected of crimes may have limited effective choice about whether or not to accept a caution. Because the process is not truly voluntary, the Code of Practice could be seen as allowing the police and CPS to act as investigators, prosecutors and judges. Conditions Paragraph 7 of the Code of Practice introduces a wide scope of conditions available to be attached to the Youth Conditional Caution. The conditions can impose a number of restrictions on individual freedom. Under paragraph 7.5, preventative conditions can be imposed where they meet one of the 3 aims (rehabilitation, reparation and punishment) and can include preventing the youth from contacting individuals, visiting certain locations or participating in particular activities. Under section 7.6, conditions may include reference to the future behaviour of the young person, such as an agreement not to commit further offences for a specified period. The nature and range of restrictions permitted under a YCC raise similar concerns to the conditions that can be imposed under Anti Social Behaviour Orders (ASBOs). These often contain restrictions which set people up for failure because they are unable to avoid breaching them. Experiences with ASBOs have shown that the broader the order, the greater the likelihood of breach. Liberty would also point out that the Code of Practice seems to confuse the objectives of rehabilitation, reparation and punishment. Conditions described as restorative and rehabilitative, such as financial compensation, unpaid work and a range of interventions available to the YOS for addressing offending behaviour, 1 can in reality operate as a punishment. Punitive Conditions Cautions are supposed to be an alternative to entering the criminal justice process, a non-punitive means of encouraging a person not to re-offend. We consider such a second chance to be particularly important in the context of young offenders. However, the Code of Practice introduces a punitive element to the conditions 1 Section 7.2 and 7.3 of the Youth Conditional Caution Code of Practice. 4

5 attached to the YCC. Section 7.1 of the Code of Practice introduces conditions which punish or penalise the youth for their unlawful conduct. These can include the payment of a financial penalty, unpaid work for a period not exceeding 20 hours or attendance at a specified place to undertake an agreed activity for a period not exceeding 20 hours, not including any attendance for the purposes of facilitating the youth s rehabilitation. 2 When conditional cautions were initially introduced in the Criminal Justice Act 2003 the cautions were only able to impose conditions described as relating to rehabilitation and reparation. However, the Police and Justice Act 2006 changed the 2003 Act so that conditions can be imposed on cautions which are expressly designed to be punitive. We believe that there is a real danger that conditional cautions will be used as a short-cut to punishment, intended for use in large numbers of cases rather than a way of diverting young people away from the criminal justice system. When punitive conditional cautions were proposed in the context of adult offenders in the 2006 Act, the Magistrates Association argued, that it was: contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary. A democratic legal system ensures that an independent tribunal the judiciary should sentence and impose punishment, thus preventing bias from prosecutorial authorities. 3 Liberty agrees with this and is therefore concerned with paragraph 6.6 of the Code of Practice, which makes it clear that the decision as to whether a Youth Conditional Caution is appropriate, and the conditions to be attached to the caution, is for the prosecutor. A report examining the early implementation of adult conditional cautioning found that a number of cases were put forward by the police for consideration for a conditional caution which were not suitable for a charge and suggested that this showed the potential for up-tariffing. The study explained that when a new disposal is introduced between two forms of existing disposals, it is likely to draw in offenders from the less serious disposal, and this is known as up-tariffing. This has been found with the introduction of other initiatives such as conditional bail. 4 2 Section 7.4 of the Youth Conditional Caution Code of Practice. 3 Cited by Nick Herbert MP in Committee, Standing Committee D, 23 March 2006 (morning), col Brown, D. (1998) Offending on bail and police use of conditional bail. Home Office Research Findings 72. London: Home Office and Hucklesby, A. (2001) Police bail and the use of conditions. Criminal justice. Vol. 1 no. 4: pp

6 The report suggested that some up-tariffing was occurring at the stage of police decision making, as evidenced in 15 cases, where the reason for not administering a conditional caution was due to the offence not being serious enough. 5 Using cautions as a fast-track to punishment is an even greater concern when used for young offenders. Many young offenders could benefit significantly from constructive measures and engagement designed to make them understand the consequences of their behaviour in the hope that they will change their ways and become responsible adults. A simple fine or compulsory work will not achieve this. The UN Guidelines on the Prevention of Child Delinquency recognise the need for special measures designed to avoid criminalizing and penalizing a child which take notice of the fact that in the predominant opinion of experts, labelling a young person as "deviant'', "delinquent" or "pre-delinquent" often contributes to the development of a consistent pattern of undesirable behaviour by young persons. 6 Failure to comply with a Youth Conditional Caution Paragraph 13.1 of the Code of Practice makes it clear that although failure to comply with a condition is not an offence in itself, it may result in a young person being prosecuted for the original offence. This can cause difficulties where a young person has a number of problems (e.g. mental health needs or drug/alcohol misuse) and the prosecutor is trying to solve all of these through the conditions attached to the YCC. For example, a YCC may be overloaded with rehabilitative conditions that are aimed at solving multiple problems that a young person may be facing, coupled with restorative or punitive conditions that can add extra requirements to attend a specified place or give financial compensation. These conditions will be extremely difficult for the young person to comply with. They will then face being prosecuted for the original offence due to breach of the Conditional Caution. 5 Ministry of Justice research paper: Laura Blakeborough and Dr Harriet Pierpoint in collaboration with Professor Trevor Bennett, Professor Mike Maguire, Cynthia Pinto, Louise Hall Susie Wreford and Dominic Smith (2007), Conditional cautions: An examination of the early implementation of the scheme, A report evaluating the implementation of conditional cautions in 13 Basic Command Units across six police areas. The purpose of the study was to provide evidence to help inform the national roll out of conditional cautions. See 6 United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) Adopted and proclaimed by General Assembly resolution 45/112 of 14 December

7 Requirements of a Youth Conditional Caution Liberty is also concerned that a YCC can only be given where the youth has not previously been convicted of an offence. As was highlighted by the Standing Committee for Youth Justice when the Criminal Justice and Immigration Act 2008 was being debated in Parliament, 7 the adult conditional caution is available at any point in an offender s career and this leads to the potential for co-defendants, of similar age and with a previous offending history, to be treated differently. For example, an 18 year old young adult with a single previous conviction might be given a conditional caution in circumstances where the criteria for a 17 year old would require prosecution. This approach not only fails to ensure young people are diverted away from the criminal justice system but also lacks flexibility. A YCC can not be given, and the young person would be prosecuted where, for example, the young person has a single previous conviction for a minor offence which he or she denied (and so was not eligible for a reprimand or warning) or the young person s previous convictions relate to offences committed previously, without regard to the nature of that offence or the current matter. Involvement of Victims Under human rights law, the government has a clear obligation to protect individuals against crime. Indeed Liberty has long campaigned for practical reforms to safeguard the rights of victims within the criminal justice system. However, the approach set out in the Code, adopts many of the governments worst instincts in this area. Section 10.1 of the Code states that the views of the victim should be obtained wherever possible and taken into account when deciding whether a YYC is appropriate and in determining suitable conditions to be attached. Further: the victims consent must be obtained in any case where direct reparation or restorative justice processes are being considered. While section 10.2 explains that although the view of the victim will be important, it will not be conclusive, Liberty has serious concerns about the level of victim involvement proposed under the Code. Allowing the views of a victim to have a direct bearing on the decision and approach taken by the YCC prosecutor presents considerable dangers. Allowing for direct input from a victim undermines objectivity and may well lead to the YCC system being perceived as a mechanism by 7 See Standing Committee for Youth Justice briefing for the Criminal Justice and Immigration Bill, House of Lords Committee Stage, February

8 which old scores can be settled between individuals. There may well be substantial disparity between the types of conditions doled out as a direct result of victim input. Isabella Sankey Rachel Yates 8