Who Pulled the Plug? Towards an Explanation of the Fall in Child Imprisonment in England and Wales 1

Abstract

This article offers an analysis of the recent fall in youth custody in England and Wales. It argues that parallels can be drawn between the present period and the decline in child imprisonment during Margaret Thatcher’s premiership in the 1980s. In particular, increased diversion and a depoliticization of youth crime have contributed to a more tolerant decision making within the court arena. Some remarks on the implications for an understanding of the punitive turn are offered and an assessment of the prospect for future trends is provided in the light of the riots of August 2011.

Keywords

child imprisonment diversion politicization punitivism riots youth crime

Introduction: Welcome but Unexpected…

In October 2008, the United Nations Committee on the Rights of the Child (2008) registered its disapproval at the number of children in the United Kingdom deprived of their liberty through the criminal justice process. The criticism was widely regarded as legitimate: the four Children’s Commissioners for the constituent countries submitted a report to the Committee alleging a failure to use custody as a last resort in violation of article 37(b) of the United Nations Convention on the Rights of the Child, ‘particularly in England and Wales’ (United Kingdom Children’s Commissioners, 2008: 33). Estimates for the same year suggested that the rate of child incarceration in England and Wales was the second highest in Western Europe behind the Netherlands (Muncie, 2009: 366). This state of affairs was in large part a consequence of an expansion, approaching 90 per cent within ten years, in the number of children sentenced to imprisonment from 1993 onwards (Nacro, 2003).

The election of New Labour in 1997 had little discernible impact on the upward trend, with levels of detention stabilizing at a stubbornly high level in the new millennium. The expansion in the use of child custody is most commonly attributed to a ‘punitive turn’ (Bateman, 2005; Goldson, 2002; Muncie, 2008) whose origins lie, over the longer term, in social and economic changes associated with late modernity (Garland, 2001). These have led to what Bauman (2000: 205) describes as a ‘trade off of collective security in exchange for the maximization of individual choice’, engendering an exclusionary political focus on law and order. More immediately, the trigger for the rise in youth incarceration is frequently portrayed as a reaction to an archetypal moral panic about the nature and extent of youth crime in England and Wales in the wake of the murder of James Bulger in 1993 (Muncie, 2009).

It is scarcely surprising then that most commentators remained pessimistic about the prospects of a decline in child imprisonment in the foreseeable future (see for instance, Goldson, 2010). Yet, by a quirk of coincidence, the weeks immediately following the United Nations Committee’s damning assessment of the UK’s record saw the under-18 population of the secure estate for children and young people tumble. Between 2000/2001 and 2008/2009, the annual average number of children behind bars had fluctuated between 2745 and 3029. In December 2008, the population was lower – at 2715 – than at any point since April 2000. As shown in Figure 1, the subsequent trend was uniformly downwards: by May 2011, the number of children in custody had declined by almost 30 per cent, to 2040 (Ministry of Justice, 2011a). Significantly, this fall coincided with continued rises in the adult prison population which expanded by more than four per cent over the same period (Ministry of Justice, 2009; Ministry of Justice, 2011b).

Figure 1.

Population of the secure estate for children and young people 2001 – 2011 (last day of March)

It is worth noting, too, that while some commentators have pointed to divergences in youth justice policy and practice in Wales and England (see for instance, Haines, 2010), the pattern of decline appears to be similar in both nations.² Between 2007/2008 and 2009/10, the number of custodial disposals fell by 23 per cent in Wales; the equivalent reduction for England was slightly higher at 25 per cent (Youth Justice Board, 2009; 2011a).

This unexpected, though broadly welcomed,³ development would appear to constitute more than a temporary fluctuation. That, at least, is the view of the Youth Justice Board for England and Wales (YJB) who have taken advantage of the smaller numbers in custody to decommission more than 1000 beds within secure establishments since February 2010 (National Audit Office, 2010; Youth Justice Board, 2011b). The government anticipates that ‘the number of children and young people in custody will continue to fall in the coming years, but at a much slower rate’ (Youth Justice Board, 2011c: 24).

This article seeks to provide an initial analysis of the mechanisms that have underlain the fall in youth imprisonment. No doubt a range of factors are involved and it may well be that a convergence of these has generated a ‘critical mass’ (Ball, 2004), engendering a qualitative shift in sentencing practice. The intention here is to identify the most important contributors to that process.

Given that accounts of the carceral boom of the 1990s have tended to draw on notions of punitiveness (Goldson, 2006) and that the new ‘culture of control’ (Garland, 2001) is sometimes represented as entailing extensive incarceration, some brief reflections are also offered on what the contraction in youth custody might mean for the punitive turn as an explanatory concept.

Partial Explanations

Simple demographic factors may have made a contribution to the declining numbers held in the secure estate, but if so the effect is likely to have been relatively modest. According to mid year estimates, the population in England and Wales aged 15–17 years – the age group that accounts for the bulk of youth custodial sentencing – fell by just four per cent between 2008 and 2010, compared with a reduction in the custodial population of almost a third (Office for National Statistics, 2009, 2011).

In some quarters, the fall in custody is attributed to the actions of the YJB. The National Audit Office, for instance, credits the Board with meeting its objective to reduce custody through ‘working together with practitioners’ and ‘engendering greater confidence on the part of sentencers in community sentences’ (National Audit Office, 2010: 25, 26). This account was subsequently endorsed by Lord Warner, debating the proposed abolition of the YJB in the House of Lords, wherein he argued that such a course would put at risk the significant cuts in the secure estate population (Warner, 2011).⁴ In its most recent Annual Report, the YJB (2011b: 6) itself highlights its ‘focus on ensuring that young people do not receive custodial sentences where a community sentence would be more appropriate’.

But as Rob Allen (2011) has pointed out, while such activity may have had an impact, it is far from easy to identify what the Board was doing differently to reduce child incarceration in 2008–2011 that it was not doing previously. The YJB was an early advocate of the detention and training order as ‘a better sentence’ (Youth Justice Board, 2000), but rapidly changed position by adopting a policy of custody reduction. Publicizing local rates of child imprisonment to those working within the system, it drew attention to the wide variations in sentencing practice (Bateman, 2001). A corporate target to provide ‘support to the youth justice system to, between 31 March 2005 and 31 March 2008, reduce the size of the under 18 custodial population by ten per cent’ was subsequently introduced (Youth Justice Board, 2008). However, these measures delivered few tangible results: the performance indicator was not met. Indeed the numbers in custody rose by almost ten per cent (Bateman, 2008a). The target was then abandoned, ironically, just as the reduction in imprisonment was about to kick in (Allen, 2011). The Board, no doubt, continued to lobby behind the scenes, but it is unclear why such endeavours from 2008 should have been any more successful than previous efforts.

The National Audit Office (2010) offers a further potential explanation. It speculates that the decline in the number of children sent to custody might reflect a recent fall in youth criminality. A review of longer term trends however suggests that the relationship between detected youth crime and rates of child imprisonment is more complex than such an account implies.

Detected indictable youth offending did fall rapidly between 2008 and 2010, by more than 40 per cent (Ministry of Justice, 2011c). However, this decline followed a sharp rise in the preceding period so that the reduction between 2003 and 2010 was a more modest – though still substantial – 29 per cent. Further, the downward trend is not a recent development: the number of children given a substantive youth justice disposal for an indictable offence also declined, by 27 per cent, between 1992 and 2003, a period during which custodial sentencing expanded rapidly. Why the more recent drop in youth crime should generate a corresponding fall in child imprisonment, where the earlier one failed to do so, remains to be explained.

Have We Been Here Before? Child Imprisonment during the 1980s

In 1979, 7000 children aged 10–16 years⁵ received custodial sentences; by 1990, the equivalent figure was 1400. The fall in the number of ‘criminal’ care orders, from 2700 to 200, was even sharper (Home Office, 1989, 1993).⁶ As in the recent period, the current reduction in youth imprisonment was not anticipated by contemporaries.

When Margaret Thatcher assumed the premiership in 1979, the portents for those who wished to see a more humane treatment of children in trouble were not particularly auspicious. As John Pitts (1988: 40) saw it, the new administration positively gloried in the ‘rise of vindictiveness’. The number of children consigned to custody continued to rise until 1982 (Home Office, 1989) and most observers concluded that the stage was set for further growth for the foreseeable future (see for instance, Nacro, 1981; Rutherford, 1983). Given that the current fall in custody was also unexpected, it is worth considering whether the earlier experience can illuminate more recent developments.

There are obvious differences between the two periods. The 1980s saw the emergence of a vociferous practitioner lobby who displayed an anti-custody ‘crusading zeal’ (Allen, 1991: 49). There are few signs of such practitioner activism in the current climate. There were no national standards and multi-agency working was underdeveloped. Penal reform groups tended to be more influential in the development of practice guidance in the absence of a centralized body to undertake that role, as the YJB has subsequently done (Pitts, 2003). And yet it is possible to discern similarities.

Among the variables adduced to explain the fall in youth imprisonment, the rate of diversion – the proportion of cases resulting in a pre-court measure as opposed to prosecution – stands out as significant (Allen, 1991). During the 1980s, disposing of youth offending by way of police caution became increasingly prevalent, leading to a higher ratio of cautions to convictions. As a proportion of substantive disposals pre-court diversion accounted for less than half in 1980 but more than three-quarters in 1990 (Allen, 1991).

An additional factor with explanatory power – paradoxically so given the law and order pretensions of the government of the day – was the depoliticization of youth justice. Pitts (2003) points to a tension at the heart of the Thatcherite project: a government committed to being tough on crime was also wedded to a reduction in state expenditure. Rising unemployment – resulting in reduced tax revenue and an increased burden of benefit payments – inevitably meant a search for areas where costs could be scaled back. A less interventionist youth justice system – including a curtailed use of custody – represented a potential saving. In this sense, the provision by the government of £15 million for the development of 4500 ‘alternative to custody’ placements (DHSS, 1983) can be viewed as crude economic calculation.

There were, of course, other considerations. An administration, whose primary focus was to ‘reverse the defeats inflicted by the miners and other groups of workers’ on the previous Conservative government under Ted Heath, had bigger political fish to fry than children who broke the law (Callinicos and Simons, 1985: 35). At least some Home Office civil servants were persuaded of the merits of the academic argument – at the time promulgated most effectively by Lancaster University – that early induction into the youth justice system had not delivered reductions in offending and might make matters worse (Haines and Drakeford, 1998). The government could in any event afford to approach the issue of ‘juvenile delinquency’ with a light touch because, while detected offending for adults was rising sharply, that for children ran in the opposite direction (Rutherford, 1992). It has been suggested that the administration adopted a deliberate policy of ‘bifurcation’: calling for tough penalties for (the relatively few) serious crimes committed by children, while favouring more lenient responses to other forms of juvenile lawbreaking (Pitts, 1988).

One of the implications of the softer approach was that higher levels of cautioning, and other forms of diversionary activity, were actively encouraged from the centre rather than simply tolerated; guidance issued by the Home Office in 1985 emphasized the importance of avoiding the prosecution of juveniles wherever possible (Home Office, 1985). From a practitioner and academic perspective, there was also an increased recognition of the importance of understanding the youth justice process as a ‘system’, comprised of a number of significant decision-making gateways. This understanding led to a focus on maximizing opportunities for decriminalization, diversion, and decarceration, providing further momentum to the removal of children from the ambit of the juvenile court (Thorpe et al., 1980).

Importantly, both these elements – diversion and depoliticisation – feature prominently in explanations of the rise in youth custody during the 1990s, but in reverse. The rate of diversion fell rapidly throughout the decade from 73 per cent in 1992 to 54 per cent ten years later (Nacro, 2010). The increase in prosecution that this entailed was itself partly a reflection of a repoliticization of youth crime. In the wake of a rash of youthful disturbances in the early 1990s (Campbell, 2003), the Conservative government, and an emergent ‘new’ Labour under Tony Blair’s leadership, became ‘ideologically conjoined’ (Sim, 2009: 55). Concerns about a new generation of lawless children, crystallized by the Bulger case, engendered a political ‘consensus on the fundamentals of law and an order policy… anything you can do, I can do tougher’ (Reiner, 2007: 122), that would influence the direction of youth justice policy for years to come.

The Relationship between Diversion and Imprisonment

Before considering the role of pre-court diversion in effecting a decline in the population of the secure estate in the recent period, some account of the mechanisms by which diversionary measures might impact on levels of custody is required, since these are not at all obvious. A genuine increase in diversion⁷ will entail a fall in the number of children processed through court, but this reduction in numbers provides no guarantee that imprisonment will fall: while less serious offences will be filtered out, those more serious matters that were previously thought to warrant custody will continue to result in prosecution.

Nonetheless, there is compelling evidence that an inverse relation between diversion and custody does obtain, deriving in part from the phenomenon of ‘justice by geography’. Rates of youth custody vary considerably between local areas. In 2009/10, for instance, custodial disposals, as a proportion of all convictions, ranged from almost 20 per cent in Merthyr Tydfil to less than one per cent in Dorset (Youth Justice Board, 2010). While some of that variation reflects differences in patterns of offending, these cannot fully explain the discrepancy (Bateman and Stanley, 2002). Detailed analysis of local youth offending team data demonstrates that one of the contributing factors is the extent to which children are diverted from court. Figure 2 indicates that as diversion rises, custody tends to fall, and vice versa. The relationship is statistically significant.

Figure 2.

Rate of diversion against rate of custody by youth offending team area, 2009/10

What might account for this relationship? In the first place, there is reliable evidence that the youth justice system is ‘criminogenic’ with the negative consequences becoming greater the further into the system children are propelled (McAra and McVie, 2007). One might accordingly anticipate a positive impact on recidivism where increased diversion serves to raise the threshold at which prosecution ensues. At the same time, delaying entry into the court system extends the number of formal disposals available to the child before a custodial outcome appears inevitable. It similarly reduces the appearance of ‘persistence’ and of failure to respond to court orders as the number of previous convictions is diminished. This process of ‘down-tariffing’ (Haines, 2008) also allows an extended opportunity for the ‘natural’ process of desistance with age to kick in (Farrall, 2010).

More immediately, there is the impact of the reduction in the court population itself. This would generate a reduction in detention only if the rate of custody remains constant. But as noted above, it is not evident that this should occur. One might reasonably anticipate that courts would continue to impose imprisonment at the same threshold as before, locking up the same number of children and thereby increasing the rate of incarceration within a reduced court population. That this does not happen appears to be a function of the fact that sentencers tend to maintain a similar distribution of disposals irrespective of the gravity of matters before them (Nacro, 2005). Removing a raft of more minor offending from the court arena, will accordingly result in first tier penalties being imposed in cases that previously would have been thought to warrant a community order, with a consequent deflationary effect on higher tariff outcomes.

Finally, and more speculatively, it might be anticipated that where there is a reduced political focus on youth crime, ‘defining deviancy down’ (Moynihan, 1993) will find a more receptive audience among sentencers – and be reflected in sentencing practice – if the court population is falling.

Diversion and the Fall in Youth Imprisonment

There have been changes in the rate of diversion over the recent period but, on first investigation, these do not appear to correspond with shifts in the custodial population. As indicated in Table 1, there was a rise in the ratio of pre-court disposals to convictions between 2003 and 2006 but this predates the fall in the population of the secure estate. More problematically, the fall in custody coincided with a sharp increase in the proportion of cases resulting in prosecution, the opposite pattern to that implied by the arguments in the previous section.

Table 1.

Rate of diversion for indictable offences, 2000–2010

Year	Rate of diversion (Percentage)
2000	56.7
2001	55.8
2002	53.7
2003	56
2004	58.3
2005	60.6
2006	61.3
2007	59.8
2008	55.7
2009	52.6
2010	44.1

Source: Derived from Home Office (2006a) and Ministry of Justice (2008, 2011c)

Diversion figures from 2007 onwards are, however, skewed as the consequence of a new government target requiring a reduction in the number of ‘first time entrants’ (FTEs) to the youth justice system. Originally introduced as an indicator by the YJB in 2006, the target was formally adopted by the government in the Youth Crime Action Plan in July 2008 (Bateman, 2009).⁸ Remarkably, the latter was met within twelve months, though the decline in FTEs had already commenced a year earlier in response to the Board’s initiative. Between 2006/07 and 2009/10, the number of FTEs fell by 44 per cent (Ministry of Justice, 2010a).

The significance of this ‘success story’ for current purposes is that one might reasonably suppose that the reduction was achieved in large part by dealing informally with children who would otherwise have received a reprimand or final warning. The apparent decline in diversionary mechanisms from 2007, suggested by Table 1, is accordingly an artefact of a target-driven shift in practice at the gateway to the youth justice system. If just half of the fall in FTEs in 2010 represents children who would otherwise have received a formal pre-court disposal, the rate of diversion for that year would, in the absence of the new outcome measure, have been higher than at any point since 1993. As Figure 3 demonstrates, trends for the number of FTEs and the custodial population have shown a marked convergence from the point at which the target began to bite.

Figure 3.

Population of the secure estate against first time entrants to the youth justice system: 2004/05 – 2009/10

A Non-punitive Turn?

If the resurgence of diversion suggests parallels between recent developments and those of the 1980s, a process of depoliticization of youth crime has also exercised an influence in both periods. There has been a political softening, albeit tentative and beset with ambiguity.

Allen (2011) argues that while there was no overt policy shift on the part of central government, there were influential developments behind the scenes. The decision in 2007 to make youth justice a joint responsibility of the Ministry of Justice and the Department for Children, Schools and Families, signalled a differential approach to children who broke the law and adult offenders. The introduction of a new performance framework for local government required local authorities to report against a set of national indicators, including a year-on-year reduction in the number of children within the area sentenced to custody. This, Allen suggests, sent an important message, endowing the objective with a ‘good deal more significance’ for local agencies than it previously enjoyed as a YJB target (Allen, 2011:11).

No doubt these backroom manoeuvres had a material effect, but to focus on such processes ignores more public expressions of an emerging modification to government thinking. In May 2006, the Home Office issued revised guidance on final warnings encouraging a greater use of diversion, legitimating what was already happening on the ground (Home Office, 2006b). In October that year, the chair of the YJB, HM Chief Inspector of Prisons and the Children’s Commissioner for England, held a joint press conference at Feltham young offenders’ institution to announce that the secure estate had reached ‘crisis point’ following recent increases in the number of children confined (Youth Justice Board, 2006).

In 2007, on his appointment as Children’s Minister, Ed Balls gave an interview to the Guardian newspaper that was interpreted as marking ‘a break with [the] Blair era on crime’ (Branigan, 2007: 13). The break consisted in the contention that every anti-social behaviour order imposed on a child was indicative of failure. A government spokesperson confirmed that this represented a ‘shift in tone… it’s going back to emphasizing the causes of crime’ (cited in Branigan, 2007). Martin Narey, at the time Chief Executive of Barnardo’s, opined that ‘a change in tone may be all that’s needed’ (Branigan, 2007). The Children’s Plan, published in December that year, acknowledged that the likelihood of reoffending grows ‘the further a young person gets into the criminal justice system’ (Department for Children, Schools and Families, 2007: paragraph 6.75). It announced a new informal pre-court, restorative, disposal designed to reduce prosecution (paragraph 6.77) and committed the government to reconsider the way that children in the youth justice system are treated, including an examination of ‘approaches other countries use to reduce offending amongst young people’ (paragraph 6.80). (Perhaps unfortunately, the latter commitment was never fulfilled.)

As the 2010 election loomed, the state of the economy supplanted law and order as the main political priority, in vivid contrast to the three previous campaigns (Downes and Morgan, 2007). (The impact of the fiscal downturn on criminal justice policy constitutes another echo of the Thatcher era.) Both of the main party manifestos contained a chapter on crime: New Labour promised ‘tough action on crime and anti-social behaviour’ and criticized the opposition for being soft (Labour Party, 2010:5. 4); the Conservatives attacked Labour’s ‘obsession with bureaucratic targets and box-ticking’ that required police to fill in forms rather than fight crime (Conservative Party, 2010: 56). But the focus on youth offending was considerably more muted than the electorate had come to expect. Labour focused on ensuring an expansion in leisure activities for young people in high crime areas, combined with an increased role for neighbourhood policing; the Conservative’s sole reference to youth crime was to assure readers that the marketization of the criminal justice system, through payment by results, would apply equally to the treatment of children below the age of 18 years. Tellingly, perhaps, after joining the coalition government, the Liberal Democrats adopted a policy of raising the age of criminal responsibility to 14 years (Whitehead, 2011).

But for current purposes, the most significant public expression of a shift in mood was to be found a little earlier. The Youth Crime Action Plan, discussed above, is testimony to the contradictory nature of government policy. Its ‘triple track’ strategy of ‘enforcement, non-negotiable challenge, and prevention’ served as a reminder of New Labour’s tough credentials (HM Government, 2008: paragraph 23). Yet the paper also heralded a dramatically different outlook.

Reference has already been made to the target to reduce FTEs as a diversionary mechanism, but in addition to channelling literally tens of thousands of children away from formal criminal justice responses, the new indicator could also be read as intimating that harsh responses for children who broke the law were no longer de rigueur – alternatives were available and should be used. The weight of the shift was heightened by contrast with the target it replaced. Between 2002 and 2008, the government was committed to a large expansion in the number of offences leading to a formal disposal, or ‘sanction detection’. The effect was not only to enjoin the police to make more arrests – of young people in particular (Bateman, 2008b) – but also functioned as a signifier of the government’s uncompromising stance on law and order. The abandonment of that earlier target and the substitution of a measure apparently designed to maximize informal, diversionary, responses spoke volumes to those who cared to listen. Combined with other straws in the wind, this message was sufficiently clear for police, youth justice practitioners, and the courts to take notice.

Punitivism and Future Prospects for Child Imprisonment

The substantial fall in child imprisonment inevitably raises questions for analyses of youth justice that have drawn upon the notion of punitivism. In particular, to what extent is the recent decline in the population of children deprived of their liberty compatible with maintaining that policy formation has in large part emanated from a punitive turn? Considerations of space preclude an adequate treatment of the subject which may, in any event, be premature. Nonetheless, a number of brief remarks are in order.

Critics of the ‘culture of control’ have objected, perhaps with reason, that in some formulations it can appear over deterministic; unable, for instance, to allow for falling crime rates (Zedner, 2002). Roger Matthews (2005: 182) has expressed reservations as to the utility of punitiveness as an explanatory concept on the grounds that it implies that all penal processes are unidirectional, ‘necessarily pushing towards an increase in the deployment of punitive or emotive punishments’ [emphasis added].

If that genuinely is the criterion by which we should assess whether there has been a punitive turn, the recent unexpected trend in the incarceration of young people will tend to undermine the thesis as a whole. But it is not evident that this is the only option. One might hold that global social and economic changes, beginning in the latter part of the 20th century, have tended to erode a commitment to penal welfarism, while simultaneously allowing for significant variation between countries, fluctuation over time within single jurisdictions, and differential treatment of different populations at particular junctures (see for instance, Lacey, 2010; Muncie, 2011). From this perspective, punitivism might be mediated in different ways through institutional frameworks, cultural constructions, professional dynamics, and local political or economic considerations. These contingencies are perhaps best understood as having, at different times and in different contexts, a counterveiling – or reinforcing – impact on the underlying dynamic provided by the broader forces that Garland (2001) and others have described.

It is clear for instance, that in England and Wales, trends within youth justice have on occasion diverged from those within the adult criminal justice system. The Thatcher experience, shortly after the point at which most authors consider the new culture of control to have emerged in full form, represents one such occasion (Pitts, forthcoming). The present period might be viewed as another – perhaps temporary – departure from the longer term direction of travel. There are however limits to such an analysis. One can only rely on exceptions to the rule to the extent that they do not come to dominate. In the event that the decline in the population of the secure estate for children and young people proves to carry the germs of a more general climate of penal tolerance with the potential to endure, then the continued relevance of the punitive turn would need to be considered anew.

Recent developments offer the prospect of a significant shift in the way that children in conflict with the law are constructed and treated. But the situation is replete with tension and the gains may be vulnerable to reversal. The coalition government has pledged that youth offending team performance will be assessed against targets to reduce the number of FTEs and the level of child imprisonment – as well as recidivism (Ministry of Justice, 2010b). So there is a continued potential for higher levels of diversion and of a willingness to stand apart from the political law and order arms race. But there are important contra-indicators.

During the 1980s, government initiatives tended to reinforce developments in practice rather than instigate them (Telford and Santatzoglou, forthcoming); by contrast, there is currently scant evidence of a renewed vibrant practitioner lobby pushing an anti-custodial agenda. Pre-sentence reports continue to propose more than 800 custodial sentences per annum (Youth Justice Board, 2010). Rates of breach – a major, but relatively recent, contributor to youth detention – remain high (Bateman, 2011; Hart, 2011).

And if the Thatcher administration was confident that a minimalist response to youth crime would not invite public disapprobation, elements of the media continue to stoke the retributive flames – as with ‘The Sun says No to Soft Justice’ campaign. The government’s package of penal reform has attracted criticism for reflecting a pressure to reduce costs rather than being ‘driven by any reforming zeal’ (Matthews and Slaughter, 2011: 42). In that context, it may be susceptible to U-turn depending on how measures are perceived to play with the electorate.

Indeed, there is evidence of a distinct change of tone between the publication of the justice green paper, Breaking the Cycle, in December 2010 (Ministry of Justice, 2010b) and the unveiling of statutory proposals in the government’s response to consultation in July 2011 (Ministry of Justice, 2011c). Progressive measures remain – notably in relation to the provision to bring 17 year-olds within the remand arrangements for younger children and the abolition of the rigid final warning scheme. However, the latter paper demonstrates elements of what might be thought to be a reversion to type: the words ‘tough’ or ‘toughness’ pepper the document; plans to increase discounts for early guilty pleas have been dropped; contrary to the tenor of the green paper, the government now denies any intent to reduce the prison population and will not push for community sentences to be used in place of incarceration; so far as youth justice is concerned, the introduction of compliance panels, originally portrayed as a mechanism to support young people to complete their order, is now described as a measure to ‘ensure that young people comply with their sentences’ (Ministry of Justice, 2011d: 4). The revisions were described by The Sun newspaper as ‘a stunning victory’ for its campaign, which left the earlier ‘soft justice blueprint in shreds’ (Wilson, 2011).

Conclusion: The Prospects for Continued Falls in Child Imprisonment

If evidence were needed of the tentative nature of the shift to a less punitive approach to children who break the law, the outbreaks of public disorder that took place in a number of UK cities between 6 and 9 August 2011 provided it. The events took place after the body of this article was submitted for publication but the response to them underscores the danger that the gains of recent years might easily be overturned.

Perhaps predictably, David Cameron (2011) described the rioting as ‘pure criminality’, pointing, by implication, to the central role of young people by attributing blame to ‘children without fathers. Schools without discipline…. Crime without punishment’. The prime minister affirmed that ‘no-one should doubt this government’s determination to be tough on crime…. And it’s obvious to me that we’ve got to be tough, we’ve got to be robust, we’ve got to score a clear line between right and wrong right through the heart of this country – in every street and in every community’ (Cameron, 2011).

The reaction of the courts confirms that such comments cannot be dismissed as rhetoric and demonstrates how quickly high profile pronouncements by prominent political leaders can have practical impact. The proportion of those prosecuted for riot related incidents who were children was higher, at 26 per cent, than those brought before the courts for similar offence types in 2010. Thirty one per cent of 10–17 year-olds convicted of offences arising out the August disorder (at 12 October 2011) were sentenced to custody compared with just over 5 per cent in comparable cases in the previous year; the former also attracted terms of imprisonment that were, on average, five months longer (Ministry of Justice, 2011e). During August, the population of the secure estate for children and young people rose by 125 (Ministry of Justice, 2011f) and seems set to grow further in the short term at least.

Over the longer term, the key question is whether the riots will function in an analogous manner to the Bulger tragedy, inaugurating a resurgence of penal punitivism within youth justice, or whether the conditions that have allowed the significant reduction in child imprisonment are sufficiently well established to survive the shock. Pinning one’s colours to the mast frequently proves to be a risky business, but it is possible to point to a number of considerations that are relevant to an assessment of which way things might go. First, it is clear that the public and political appetite for retributive exhortation appears undiminished and if, as suggested above, there was something of a depoliticization of youth crime in the latter part of the last decade, it is currently in abeyance. One of the two most important foundations facilitating a lower use of child incarceration is seemingly very shaky. On this basis, the YJB’s prognosis that youth imprisonment will continue to fall in the coming period, albeit at a reduced rate, might appear overly optimistic.

Conversely, one might note that in 1981 the Thatcher administration also presided over a series of urban disturbances. These were denounced by the government of the day in terms redolent of Cameron’s comments and drew equivalent demands for a draconian law and order response (Rex, 1982). However, while the earlier riots might have contributed to heavier sentencing of adults throughout the remainder of the decade, they did not, as we have seen, preclude a minimalist approach to children in trouble with the law. Although the portents may look rather bleak, the coalition government might in principle adopt a similar strategy of bifurcation that would allow it to satisfy its tough credentials in public while easing the burden of an expansive youth justice system on the exchequer whose finances continue to be in a parlous state.

Significantly, the second main pillar that has supported a lower use of child imprisonment looks in better shape. There is currently no suggestion that the government will abandon the target to reduce first time entrants to the youth justice system and one might therefore surmise that levels of diversion will remain relatively high. If the arguments adduced above as to the relationship between diversion and custody have any force, reduced numbers of children in the system are likely to provide a counter to other pressures that would otherwise lead to carceral inflation.

Similarly, reducing custody seems set to remain as one of the three outcome indicators by which the performance of the youth justice system will be measured. Indeed, pilot projects aimed at further reductions in child imprisonment in four consortia areas, through the application of a ‘payment by results’ model, have been launched since the riots, despite fears that they might be shelved (Puffett, 2011).

The current situation is then one fraught with contradiction. On balance, the factors outlined in the previous two paragraphs are unlikely to provide a foundation for a continuation of the downward trend seen over the last three years in the numbers of children deprived of their liberty once the spike associated with the riots has subsided. They may however provide a sufficient counter to the punitive dynamic, whose potential recent events have clearly demonstrated, to prevent a return to the levels of incarceration witnessed during the 1990s and early 2000s.

Footnotes

1.

The author would like to thank: Rob Allen who in conversation has enhanced my understanding of the topic; and John Pitts who kindly commented on an earlier draft of the article. Neither bears any responsibility for the views expressed.

Notes

References

Allen

(1991) Out of jail: The reduction in the use of penal custody for male juveniles 1981–1988. Howard Journal for Penal Reform 30(1): 30–52

Allen

(2011) Last Resort: Exploring the Reduction in Child Imprisonment 2008–2011. London: Prison Reform Trust

Ball

(2004) Critical Mass: How one thing leads to another. London: Arrow Books.

Bateman

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