Abstract
High Court in England and Wales Rules that Denying Appropriate Adults to 17 Year-olds in Police Custody is Illegal
The Criminal Justice Act 1991 extended the jurisdiction of the youth court in England and Wales to include 17 year-olds. The Police and Criminal Evidence 1984 (PACE), which governs the treatment of suspects in police detention, was not amended and, as a consequence, the safeguards provided to juveniles continued to apply only to children aged 10–16 years. Such safeguards are additional to the rights that accrue to all persons under arrest and include a requirement on the police to:
inform a parent or guardian that the child has been detained and provide details of the grounds for detention;
take reasonable steps to contact anyone with a statutory responsibility for the young person, such as a social worker or youth offending team officer; and
obtain the services of an appropriate adult to attend the police station.
The role of the appropriate adult is not simply a passive one. The function involves advising the child, making representations on his or her behalf and ensuring that his or her treatment accords with the requirements of the Codes of Practice that accompany PACE. In the majority of cases, parents or carers act as the appropriate adult, but where they decline, or for some reason are unable to do so, youth offending teams have a responsibility to co-ordinate the provision of someone to act in that role.
A review of PACE, undertaken by the Home Office in 2008, recommended that the entitlement to an appropriate adult should be extended to all children below the age of 18 years. The proposal was accepted by the then Labour government, but the requisite legislation was never introduced. The present Coalition government indicated, in 2012, that it had no intention of amending the statutory provisions, in the light of the ‘costs, risks and benefits’ of treating 17 year-olds as children for the purposes of PACE.
The government’s stance was challenged in the High Court by a 17 year-old boy who was arrested in April 2012, by the Metropolitan police, on suspicion of robbery of a mobile phone. He was held in police custody for almost 12 hours, before being released without charge. Despite his request that his mother be informed, the police declined to do so, and when she did learn of his detention, they refused to allow her to speak to him. The case was taken by Just for Kids Law, a charity providing advocacy, support and assistance to young people in difficulty. The Howard League for Penal Reform and the Coram Children’s Legal Centre were given permission by the court to intervene. The judicial review followed the deaths of two other 17 year-old children, both of whom committed suicide after being arrested without their parents’ knowledge.
Edward Thornber killed himself in 2011 when he was issued with a court summons for possession of a small amount of cannabis, having been told at the police station that he would receive a warning for the offence. Joe Lawton killed himself a year later, having been charged and bailed to court on a drink driving charge. A petition to change the law, organized by the latter child’s parents, obtained 57,000 signatures. In a letter to the coroner who conducted the inquest into Edward Thornber’s death, written the week before the Court’s ruling, the Association of Chief Police Officers (ACPO) lead on issues concerning children and young people acceded that domestic law was inconsistent on this issue, since 17 year-olds were treated as children in all other areas of the youth justice process. She indicated that the police:
… would support a change in legislation to bring PACE into line with other legislation and for 17 year-olds to be treated as juveniles when in police custody.
In its judgement issued on 25 April 2013, the High Court confirmed that there could be ‘no question but that the treatment of 17 year-olds as adults when arrested and detained… is inconsistent with the UNCRC [United Nations Convention on the Rights of the Child] and the views of the United Nations Committee of the Rights of the Child’. Responding to the Government’s contention that there was nothing in the statutory provisions to preclude the police from informing a person responsible for the welfare of a 17 year-old child about his or her arrest, the Court indicated that, while true, this argument did not address the point that the legislation, as it currently stood, failed to make any distinction between this group of children and adults, while requiring the police to treat younger children differently.
The Court determined that PACE provisions were incompatible with Article 8 of the European Convention on Human Rights, which requires a respect for ‘private and family life’, noting that where the article is engaged, its application must be interpreted in the light of the UNCRC.
[I]t follows that those who are 17 fall within the definition of children whose best interests must be a primary consideration. To afford a 17 year-old detainee no more than the rights and protections afforded to an adult is not consistent with the principle that Article 8 is to be interpreted in harmony with the UNCRC.
The PACE Code of Practice was accordingly unlawful. The judgement concludes that:
If, at the heart of any policy in relation to 17 year-olds, lie the objectives of reinforcing strength of family ties, and development into a responsible adult with the assistance of a responsible parent, it is hard to see what [the] Code…, in its treatment of 17 year-olds as adults, achieves other than to undermine such objectives.
The Home Secretary has accepted the Court’s decision and ACPO has recommended that the police should offer the services of an appropriate adult to arrested 17 year-olds with immediate effect.
As part of her case for retaining the legislative provisions in their current form, the Home Secretary submitted that extending the entitlement to an appropriate adult would impose a significant increased financial burden on local authorities. A figure of £19.1 million per annum was cited. That sum is challenged in a report published in April 2013 by the National Appropriate Adult Network (NAAN). The paper maintains that the government figure represents ‘a severe overestimate’, based on questionable assumptions. In particular, whereas the government assumes that, if the family does not act as the appropriate adult, the service will be provided by a social worker at a cost of £204 per hour, NAAN points out that most local authorities use trained volunteers or sessional staff at a much reduced rate. The paper concludes that £19.1 million ‘is not within the range of reasonable estimates’ and that a maximum of £1.5 million a year, the equivalent of £9500 per local authority youth offending team, is more realistic. The figure allows for recruitment, training, and expenses, but does not take account of any additional costs incurred by the police.
The previous government’s commitment to amend PACE, to bring the arrangements for 17 year-olds in line with those for younger children, is given in Government proposals in response to the review of the Police and Criminal Evidence Act 1984, published by the Home Office, and available at: www.criminalsolicitor.net/forum/uploads/Gavin/GLink/2008-08-28_171222_cons-2008-pace-review.pdf An overview of the case is given in Just for Kid’s Law press release, The Divisional Court Rules Home Secretary’s Treatment of 17 Year-olds Unlawful, issued on 25 April 2013 and available at: www.justforkidslaw.org/docs/Appropriate%20Adult%20Ruling.pdf ACPO’s support for amending the legislation is reported in Police Back Change in Law to Treat 17 Year-olds in Custody as Juveniles, by Owen Bowcott, in the Guardian, 24 April 2013, available at: www.guardian.co.uk/uk/2013/apr/24/police-change-law-17-year-olds The High Court judgement is available at: www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/c-v-sshd-and-met-police-judgment.pdf ACPO’s recommendation that the ruling be implemented with immediate effect is available here: www.crimeline.info/news/appropriate-adults-and-17-year-olds NAAN’s critique of government costs of the amendment is given in An Estimate of Costs for Extending Statutory Provision of Appropriate Adults to 17 Year-olds in Police Detention, available at: www.appropriateadult.org.uk/images/pdf/aa_costs_17_year_olds.pdf
Research Finds That One Third of Children in Custody in England and Wales have Special Educational Needs
The secure estate in England and Wales comprises three types of establishment, which differ from each other in terms of size, staff to child ratio, and ethos. Secure children’s homes (SCHs) are small units that offer a therapeutic environment and are subject to the regulations and guidance that pertain to other child care establishments. Secure training centres (STCs) are larger, privately run, purpose built establishments, with a regime focused on education and training. Young offender institutions (YOIs), managed by the Prison Service, are the largest units. They do not accommodate children below the age of 15 years, but nonetheless hold the large majority of those in custody. Recent research conducted on behalf of the Youth Justice Board for England and Wales confirms that the characteristics and experiences of children in each type of institution vary considerably.
According to data derived from youth offending team assessments, one third of the overall custodial population was recorded as having special educational needs. However, the respective figures for SCHs, STCs and YOIs were 43 per cent, 35 per cent and 28 per cent. Similarly, as indicated in Table 1, a higher proportion of children in SCHs were recorded as having had a period of non-school attendance and as displaying the most negative attitudes towards education. Conversely, YOIs had the lowest proportion of children who had previously been, or were currently, looked after by the local authority. Unsurprisingly perhaps, the YOI population was also less likely to report having a social worker than the other two forms of establishment.
Proportion of children in custody with a period of non-school attendance and displaying negative attitudes to education, by type of establishment.
This analysis suggests that the populations of SCHs and STCs have higher levels of need. Such a finding might be anticipated given that such units provide for younger children and those considered too vulnerable to be placed in a prison service setting.
The experiences of children within the secure estate were also dependent on the nature of the establishment within which they were detained. The majority of young people described their relationships with staff as good, but there was variation across establishment type: 86 per cent of respondents in STCs reported such a relationship, compared with 81 per cent in SCHs, and 62 per cent in YOIs. The proportion of children who considered that contact with their personal officer or key worker had been helpful was similarly lower in YOIs, at 64 per cent, compared to 78 per cent in STCs and 85 per cent in SCHs. These findings were mirrored in interviews with staff which suggested a higher frequency of contact with young people in the latter two forms of establishment. Increased contact was, in turn, perceived as more likely to lead to close and trusting relationships. Moreover a strong association was established between whether children thought that educational provision within custody was beneficial and their assessment of their relationship with staff: 78 per cent of those who reported enjoying a good relationship considered that educational provision was helpful, compared to 60 per cent of children who described their relationship with their worker as bad.
The study identified a perception among staff that quality relationships were harder to establish where children were subject to short sentences. Such disposals were also thought to constrain the potential for engaging in meaningful work. Consistent with such views, analysis of Asset (the standard youth justice assessment tool) showed a statistically significant correlation between increased sentence length (six months or longer) and reduced risk scores in three domains: family and personal relationships; education, training and employment; and neighbourhood. Conversely, children serving longer than six months showed increased Asset scores for emotional and mental health by comparison with those subject to shorter periods. The authors conclude that:
… alternative options might need to be considered for custodial sentences of six months or less. Options could include increasing the minimum length of a detention and training order to 12 months, alongside a higher custody threshold and replacing sentences of six months or less with community-based alternatives.
In February 2013, House of Commons Justice Committee published a report of its inquiry into youth justice which also considers the issue of whether a more restrictive custody threshold should be introduced. The Committee proposes that the Ministry of Justice consider the establishment of a threshold ‘based on the Canadian model, to enshrine in legislation the principle that only the most serious and prolific offenders should be placed in custody’.
Young People and the Secure Estate: Needs and Interventions, by Tracey Gyateng, Alessandro Moretti, Tiggey May and Paul Turnbull, is published by the Youth Justice Board and is available at: www.icpr.org.uk/media/34265/young-people-secure-estate.pdf Youth Justice: Seventh Report of Session 2012–2103, by the House of Commons Justice Committee, is available at: www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/339/339.pdf
Local Authorities in England and Wales Liable to Costs of Up to £4060 Per Week for Children Remanded to the Secure Estate
Following implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, court ordered secure remands and remands to custody are replaced by remands to youth detention accommodation. A number of changes flow from the amendment. Remand arrangements for 17 year-olds, who were previously treated as adults for these purposes, are brought into line with those for younger children. Placement within the secure estate is to be determined administratively by the Youth Justice Board for England and Wales, in consultation with the relevant youth offending team, rather than being a function of the order of the court. Finally, budgets for custodial remands are to be devolved to local authorities who become responsible for placement costs which were previously met by central government. The intention is to establish a financial incentive to local agencies to provide bail support services that might minimize the need to remand children into the secure estate.
The regulations governing the recovery of monies came into force from 1 April 2013. Children remanded to youth detention accommodation may be held in any of the three types of establishment that constitute the secure estate for children and young people and costs vary significantly according to the nature of the placement. The amounts that local authorities are liable to pay the Youth Justice Board, for placement in a secure children’s home or a secure training centre, shown in Table 2, will be more than three times the sum charged for detention in a young offender institution. The differential reflects the larger size of the latter units and the lower staff to child ratios.
Nightly cost to local authorities of children remanded to youth detention accommodation by type of institution.
The figures are given in The Recovery of Costs (Remand to Youth Detention Accommodation) Regulations 2013, available at: www.legislation.gov.uk/uksi/2013/507/pdfs/uksi_20130507_en.pdf.
Youth Incarceration in the United States Reaches a ‘35 Year Low’
According to a report published by the Annie E Casey Foundation, while the United States still has the highest rate of youth confinement in the industrialized world, there has been a rapid reduction in the recent period. In 2010, the rate at which young people, below the age of 21 years, were incarcerated was the lowest for 35 years, with almost every state reporting that it imprisoned a smaller proportion of its youth population than a decade earlier. Significantly, the decline in youth custody has been accompanied by sharp reduction in youth crime rather than the surge that might be predicted in the event that incarceration had a deterrent impact.
The use of custody peaked in 1995 when the number of young people confined on a single day stood at 107,637. By 2010, that figure had fallen by more than a third, to 70,792. The decline is sharper when considered as a proportion of the general youth population with the rate of confinement over the same period reducing from 381 to 225 per 100,000 young people in the population. Just six states registered an increase between 1997 and 2010. The pattern of change for these, and other selected, states is shown in Table 3.
Changes in the rate of youth confinement 1997 to 2010 – states displaying an increase and those showing the highest levels of decline.
The fall in imprisonment has occurred across all ethnic groups, but the differential between those groups remains unchanged or has increased. For instance, while the proportion of non-Hispanic white and African American youth in custody both declined by around 37 per cent in the relevant period, the latter remain nearly five times as likely to be incarcerated by comparison with their white peers. For ‘American Indian’ youth, the fall was considerably less marked, at around 25 per cent; this group is now three times more likely to be confined than their white counterparts.
The report notes that the reduction in incarceration has been achieved in the absence of national policy consensus and has depended instead on a range of local influences, including policy and legislative shifts within states, and the impact of budgetary constraints. Alabama, California and Texas, for instance, have all implemented legislation that prohibits imprisonment of juveniles for less serious offences.
Connecticut provides a further example of where legislative change has impacted on the youth custodial population. In 2007, the state amended the statutory provisions that required that all 16 and 17 year-olds apprehended for offending would be tried, and sentenced, as adults. In the light of opposition from some policy makers and law enforcement agencies, the legislation was subject to a phased implementation: 16 year-olds were permitted to enter the juvenile system from January 2010, and the provisions were extended to 17 year-olds in July 2012. By June 2012, 8325 16 year-olds had been diverted from adult trial and punishment.
This ‘raise the age’ legislation was part of a broader range of developments aimed at forging ‘a new consensus for progressive change in juvenile justice … at no additional cost to the taxpayer’. A renewed focus on providing effective community supervision, gatekeeping panels to explore community-based alternatives to supervision, and a diversionary approach to ‘status offences’ (behaviours that would not constitute an offence in the case of an adult) contributed to a near 70 per cent decline in the use of ‘residential commitments’ between 2000 and 2011, despite the fact that many more 16 year-olds were processed as juveniles.
Illinois has also legislated to keep children out of the adult criminal justice process. Until 2009, 17 year-old offenders within the state were processed as adults. In that year, a compromise position was enacted whereby children of that age who committed misdemeanours would be processed through the juvenile system; those apprehended for felonies would continue to be dealt with as adults while the impact of the change was evaluated. A report by the Illinois Juvenile Justice Commission confirms that none of the predicted negative consequences have occurred. Juvenile crime has continued to fall and violent crime in the state has reduced by 14 per cent since the law was changed. One detention centre and two state incarceration facilities have been closed. The Commission concludes that the current distinction between the pathways down which 17 year-olds are channelled based on seriousness of the offence is unjustifiable. It has accordingly adopted the following recommendation:
To promote a juvenile justice system focused on public safety, youth rehabilitation, fairness, and fiscal responsibility, Illinois should immediately adopt legislation expanding the age of juvenile court jurisdiction to include 17 year-olds charged with felonies. Figures for the national reduction in youth imprisonment are given in Reducing Youth Incarceration in the United States, published by the Annie E Casey Foundation, and available at: www.aecf.org/~/media/Pubs/Initiatives/KIDS%20COUNT/R/ReducingYouthIncarcerationSnapshot/DataSnapshotYouthIncarceration.pdf The Connecticut experience is described in Juvenile Justice Reform in Connecticut: How Collaboration and Commitment Improved Outcomes for Youth, published by the Justice Policy Institute and available at: www.justicepolicy.org/uploads/justicepolicy/documents/jpi_juvenile_justice_reform_in_ct.pdf The recommendation of the Illinois Juvenile Justice Commission is contained in Raising the Age of Juvenile Court Jurisdiction: The Future of 17 Year-olds in Illinois’ Justice System, available at: http://ijjc.illinois.gov/sites/www.ijjc-illinois.gov/files/assets/IJJC%20-%20Raising%20the%20Age%20Report.pdf
More than Half of Children Charged with Offences in New Zealand are Māori
The number of children in New Zealand, aged 10 to 16 years, charged with offences in 2012 was 11 per cent below that in 2011. As indicated in Table 4, prosecutions rose through the early part of the last decade, peaking in 2007, but have progressively fallen in the period since, from a rate of 116 prosecutions per 10,000 children in the general population, to 74.
Number of children prosecuted and rate per 10,000 children aged 10–16 years in the population, 2000–2012.
During 2012, less than one per cent of children processed through the criminal court system were aged 13 years or younger, with 16 year-olds accounting for 47 per cent of the total. Four out of five of those charged were male. The most common offence leading to charge was burglary, which accounted for more than a quarter of prosecutions. Slightly fewer than three quarters of charges were proved in court and 65 per cent of convictions were discharged, with children subject to such disposals required to complete plans agreed in a family group conference.
There been a reduction in prosecutions for all ethnic groups in the past five years. However, while Māori people represent just one in seven of the total population, 54 per cent of children charged in 2012 were of Māori origin.
Figures for court proceedings are given in Trends in Child and Youth Prosecutions: Court Statistics for 10–16 Year-olds in 2012, published by the Ministry of Justice, and available at www.justice.govt.nz/publications/global-publications/c/trends-in-child-and-youth-prosecutions-2012/publication The proportion of the New Zealand population of Māori extract is given in Key Statistics April 2000: Census Snapshot Māori, available at: www.stats.govt.nz/browse_for_stats/people_and_communities/maori/census-snapshot-maori.aspx
Survey Casts Doubt on the Extent to Which Local Authorities in England and Wales are Discharging Their Statutory Responsibilities to Homeless 16 and 17 Year-olds
A review of local authority procedures relating to homeless 16 and 17 year-olds, undertaken by the Law Centres Network, aimed to establish the extent of compliance with legal requirements. Statutory guidance requires that services for such young people are underpinned by clear protocols that prevent them from ‘being passed from pillar to post’. One hundred and thirty eight local authorities, out of a total of 144, provided protocols for the study.
Guidance indicates that where 16 and 17 year-olds present as homeless to the local authority, an initial assessment must be conducted, and children’s services should be the lead agency in that process. Moreover, where the assessment indicates that the child requires accommodation as a result of:
there being no person who has parental responsibility for him;
his being lost or having been abandoned;
the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care’ (section 20(1) of the Children Act 1989), he or she must be accommodated and will become a looked after child.
Analysis of the protocols provided, however, established that 27 per cent (35 per cent in London) did not make it clear that children’s services should be the lead agency. A higher proportion (61 per cent of all protocols and 64 per cent in London) did not apply the Children Act 1989 correctly, with many inaccuratelystating that the young person must request a ‘child in need assessment’ or must want to be, and agree to being, ‘looked after’ before they can access the support which the legislation requires.
Statutory guidance requires that local authorities provide ‘suitable emergency accommodation’ pending assessment and precludes the use of bed and breakfast accommodation for this purpose. It was apparent however that 7 per cent of local authorities (10 per cent of authorities in London) used such accommodation as a matter of routine. More than half of protocols (52 per cent of the total, and 63 per cent in London) make no reference to the fact that the use of bed and breakfast accommodation is prohibited.
Supporting homeless 16 and 17 year-olds, is published by the Law Centres Network, and is available at: www.lawcentres.org.uk/policy/papers-and-publications
‘Boot Camps’ for Children in Conflict with the Law Opened in Queensland, Australia
In accordance with an election pledge, the Government in Queensland has introduced a two year trial of youth ‘boot camps’, the first of which opened early in 2013. Two sorts of camp will be evaluated. The boot camp order will provide courts with a new sentence as an alternative to detention. Early intervention boot camps are targeted, on a voluntary basis, to children whose behaviours ‘indicate they are on the path to becoming an offender’. The rationale underpinning the new initiative is that the camps may be a mechanism for ‘instilling discipline, respect and values in the young person while working with the young person and their family to address the causes of their offending’. At the end of the trial period, boot camps may be rolled out to other locations if the evaluation suggests that they have reduced reoffending and prevented entry into the youth justice system.
The Government is also reviewing the provisions of the Youth Justice Act 2002 with consideration given to: extending the circumstances under which the names of young people in trouble can be made public; making breach of bail an offence; allowing adult courts to have access to previous convictions incurred as a juvenile; and transferring young people subject to detention to adult prisons when they attain the age of 18 years.
The review of youth justice and the introduction of boot camps are outlined in Safer Streets Crime Action Plan – Youth Justice, published by the Queensland Government and available at: www.justice.qld.gov.au/__data/assets/pdf_file/0007/177775/safer-streets-crime-action-plan-youth-justice.pdf
Imprisonment for Breach of a Community Sentence, in England and Wales, Rises as a Proportion of all Custodial Episodes Involving Children
According to figures given in answer to a Parliamentary question on 25 March 2013, by Jeremy Wright, Minister with responsibility for youth justice, the number of custodial episodes imposed for breach of a community sentence fell from 828 in 2009 to 753 in 2011, a decline of just over nine per cent. Over the same period, however, the population of the secure estate reduced by almost one quarter, suggesting an increase in the proportion of incidents of imprisonment attributable to breach.
The overall reduction in breach resulting in deprivation of liberty has not been experienced equally by all ethnic groups. As shown in Table 5, there has been a rise in the number of custodial episodes imposed for non-compliance on black and Asian children. However, given that the baseline figures are low, care should be taken in drawing conclusions from the percentage changes.
Custodial episodes imposed for breach by ethnicity, 2009–2011.
The Minister’s answer appears at Hansard, House of Commons, 25 March 2013, Column 958W
The Well-being of Children in the Netherlands Ranked Higher than Other Developed Countries
An overview of 29 developed countries, drawing on data for 2009/10, indicates that children in the Netherlands enjoy the highest level of well-being. The report, published by Unicef, measures well-being on the basis of 26 indicators, grouped into five dimensions: material well-being; health and safety; education; behaviours and risks; and housing and environment. Comparison with an earlier analysis of data from 2001/2002 shows that Finland and the Netherlands ranked in the top three countries for child well-being on both occasions; Austria, Greece, Hungary, the United Kingdom and the United States were all placed in the bottom third of the table in both 2001/2002 and 2009/2010 (although the United Kingdom rose five places from 21st to 16th); and over the decade, Portugal climbed from the bottom third of the table to be ranked twelfth. In the most recent period, child well-being in Romania, a country not included in the earlier assessment, was ranked lowest.
The analysis provides some interesting contrasts. For instance, the United Kingdom has the lowest level of participation in further education, but ranks eighth for pre-school enrolment. The United States reports the lowest use of alcohol by children aged 10–15 years, but has the highest use of cannabis of all countries bar four. More children report being involved in a physical fight in Spain than in any other country, but Spanish children experience less bullying than any countries other than Italy and Sweden.
As indicated in Table 6, homicide rates per 100,000 of the population are lowest in Iceland and highest in Latvia.
Countries with the highest and lowest homicide rates, 2009/10.
Child Well-being in Rich Countries: A Comparative Overview – Innocenti Report Card 11, by Peter Adamson, is published by Unicef, and is available at: www.unicef.org/media/files/RC11-ENG-embargo.pdf