Abstract
The previous Legal Commentary (Stone, 2013) sought to explore the extent to which the quantum of punishment should be tempered in pursuit of a distinctive and principled approach to youth justice. This Commentary seeks to build on that inquiry, when seeking to give fully authentic effect to international tenets and obligations and, as compatibly as possible, the core foundations of domestic statute. To reiterate, relevant UN provisions (United Nations, 1985, 1989) require: (a) the focus of intervention to be on promoting the young offender’s development and reintegration rather than imposing retribution; and (b) sanctions involving deprivation of personal liberty shall not be imposed save for serious offences involving ‘violence against another person or evidencing persistence in committing other serious offences’ and ‘shall be used only as a measure of last resort and for the shortest appropriate period of time’. 1 In England and Wales the overarching statutory framework requires courts with jurisdiction over children and young persons in criminal proceedings to have regard for the welfare of the child (Children and Young Persons Act (CYPA)1933 s.44(1)) and to the principal aim of the youth justice system, preventing offending by children and young persons (Crime and Disorder Act 1998 s.37(1)).
To pose the challenge in the context of a recent and prominent sentencing exercise in England and Wales, consider this account taken from news reports: A boy aged 15 was playing football on open ground at a south London housing estate. When a girl aged 14 walked through the middle of the game, interrupting play, he complained. She reacted badly, angrily telling the boy that she would get someone to stab him. She then phoned her 16 year-old boyfriend and told him that the boy, unknown to either of them, had disrespected her. The boyfriend immediately went to the scene and confronted the boy, picking a fight with him in the course of which he fatally stabbed him. The girl and her boyfriend were acquitted of murder but convicted of manslaughter. They were sentenced to eight and ten years’ detention respectively (imposed under s.91 of the Powers of Criminal Courts ((Sentencing) Act (PCC(S)A) 2000).
In press reports of how adolescent conflict arising from a trivial tiff had such tragic consequences in this instance we learn little of the personal circumstances and characteristics of the two protagonists, save that the girl was described in court as ‘troubled and extremely disrupted (sic) with a particularly low IQ’, living with her grandmother because her mother was unable to look after her. The judge noted that she had been seriously assaulted the previous year and ‘felt a need to assert herself’.2,3
This sorry episode poses the question whether it was legitimate to sentence in a conventional if somewhat ameliorated mode when seeking to respond to grave juvenile crime. Though deprivation of liberty was entirely justified, should a court that is seeking to promote the young offender’s development and reintegration, rather than imposing retribution, set a fixed term that may run counter to that child’s developmental needs and may well exceed ‘the shortest appropriate period of time’, as gauged by the yardstick of maturation and reintegration? In other words, is there a case for a radically different approach that holds back from setting a sentencing term in favour of a more-open-ended and open-minded alternative?
Lessons from a Mid-20th Century False Start?
Of course, the latter, heavily developmental approach has a precedent of a kind in England and Wales that attracted much criticism and even notoriety. CYPA 1969 s.7(7) provided: … where a child is found guilty of homicide or a young person
4
is found guilty of any offence by or before any court, that court or the court to which his case is remitted shall have power − (a) if the offence is punishable in the case of an adult with imprisonment, to make a care order (other than an interim order) in respect of him.
Accordingly, the recipient could be subject to intrusive consequences, placement in residential provision until his or her 18th birthday.
5
It will be noted that the threshold in respect of offence seriousness was set permissively low, embracing any imprisonable offence. Additionally, in contrast to the provisions empowering the imposition of a civil care order under s.1 of the Act, the s.7(7) criminal care order did not require the sentencer to be satisfied that the juvenile required care or control that he was unlikely to receive unless the court made the order. Research (Thorpe et al., 1980) established that most of the juveniles who incurred a s.7(7) order did not meet the care or control test and received this weighty disposal for minor property offences, having modest criminal records, thus flying in the face of proportionality. Faced with this evidence the 1969 Act was amended by the Criminal Justice Act (CJA) 1982 which added s.7(7A), in a bid to give the criminal care order greater tariff distinctiveness as a more ‘heavy end’ disposal: A court shall not make a care order under subsection (7) of this section in respect of a child or young person unless it is of opinion − (a) that a care order is appropriate because of the seriousness of the offence; and (b) that the child or young person is in need of care or control which he is unlikely to receive unless the court makes a care order.
As an additional safeguard, a new s.7A was introduced, specifying legal representation at time of sentence as a further precautionary pre-requirement.
Notwithstanding this reform, designed to rein back on rampant misuse of open-ended residential powers, Harris (1991) found that although the recipients of criminal care orders included offenders whose ‘repeated delinquency and poor response to non-residential alternatives’ or to shorter custodial sentences posed a sentencing quandary − also including instances where custody was deemed inappropriate (for example on mental health grounds) − the measure continued to be used frequently for more minor offenders, predominantly those convicted of theft and burglary, many of whom could have been dealt with by less intensive disposals. The s.7(7) provisions were finally repealed by the Children Act 1989, being replaced by an additional requirement option when imposing a supervision order, namely a six month local authority residence requirement, aimed at more serious offenders. 6
A Fresh Approach?
To avoid the pitfalls so painfully apparent in that false-start initiative any measure that seeks to embrace a truly distinctive, UN-compliant ethos would need to ensure adherence to the following principles:
Availability of custody only in respect of ‘serious’ offences, involving serious harm.
Availability of custody only ‘as a last resort’, where the court determines that the offender cannot appropriately be dealt with by any of the sentencing disposals otherwise available for young offenders in that jurisdiction.
Following an initial minimum period, continuing deprivation of liberty shall be subject to court review at specified intervals to determine the young offender’s progress in achieving personal development, in reducing their risk of causing further serious harm and in preparing for their reintegration back into the community.
Translated into the practicalities of the youth justice system in England and Wales, these principles could be applied as follows.
‘Serious offence’
This category is best encapsulated on the basis of featuring serious physical and/or psychological harm to others and, additionally where there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further serious offending. A ‘youth protection’ (working title) disposal, available only to the Crown Court, would replace detention for grave crimes under PCC(S)A 2000 s.91, both determinate in length and indeterminate (discretionary detention for life) and under CJA 2003 s.226B (‘extended sentence for persons aged under-18 for certain violent or sexual offences’). 7 To qualify currently for an extended sentence it is a core requirement that a determinate sentence of four years or longer would otherwise have been appropriate, and it would appear right to adopt that additional criterion for the purposes of a youth protection measure. The most substantial sentence for other, non-qualifying offending would remain the detention and training order (DTO), with a maximum of 24 months’ duration.
The ambit of ‘grave crime’ for the purposes of s.91 orders primarily lies in respect of any offence punishable with imprisonment for 14 years or longer and thus including offences that do not necessarily meet the serious harm test, most prominently burglary of a dwelling. In consequence, offending of that nature would have to be accommodated within the conventional sentencing spectrum. Would this measure also replace the mandatory sentence of detention at Her Majesty’s pleasure under PCC(S)A 2000 s.90? Given the strong arguments in principle for reforming the law of homicide, in particular by giving judges discretion in sentencing for murder, removing the mandatory sentencing regime (HomRAG, 2011; Fitz-Gibbon, 2012), would seem entirely appropriate to free young offenders convicted of murder from the straitjacket of a mandatory indeterminate term, bringing them too within the ambit of the proposed youth protection measure.
‘Last resort’
It should be firm policy that a youth protection order would not be made unless it was clearly concluded that no other option provides a feasible alternative. This can be illustrated by reference to the offending concerns posed in R. (on the application of B.W.) v Caernarfon Youth Court [2013] EWHC 1466 (Admin), concerning a very serious and prolonged sexual assault committed by an 11 year-old boy on a six year-old girl, extending to rape by oral penetration.
The boy applied for judicial review of the youth court’s decision to commit him to the Crown Court for sentence, having initially accepted summary jurisdiction, after considering expert reports about him and concluding that he posed a significant risk of serious harm to the public. The Administrative Court rejected the argument that the boy had had a legitimate expectation that he would be sentenced in the youth court, noting that a youth court in exceptional cases may well consider evidence affecting its assessment of seriousness and future risk. The reports provided to the youth court offered the following insights: It was considered probable that the boy had either been exposed to inappropriate sexual behaviour or to viewing adult pornography. He had exhibited signs of inappropriate sexual behaviour at the ages of five and a half years and seven years. At school, he had been observed pulling down the trousers of other boys in the playground. He had then been diagnosed as manifesting Attention Deficit Hyperactivity Disorder (ADHD), being initially prescribed Ritalin but his prescription was changed when he reported hearing a man's voice telling him to do ‘bad things’. Following arrest he had been removed from his parental home in view of its proximity with the victim’s home, and he has since been living with his maternal grandparents under their close supervision. He was settling into a new school. No more sexual incidents have been reported. He had told those assessing him that he had pre-meditated his crime, having had ‘bad thoughts’ about his victim. He was assessed to be socially isolated and did not appear to understand the gravity of his sexual behaviour, his developmental age being around eight years. He was currently showing signs of severe anxiety, evidenced by bed wetting and bad dreams. He was considered a highly vulnerable boy who appeared to have acquired a real fear of adult men. If he did re-offend sexually, there was a risk of serious harm but those risks were considered controllable at present by constant supervision and an intensive package of intervention was planned to reduce the risk.
Though the offence episode was undoubtedly alarming and he had exhibited aggressively sexualized behaviour for a prolonged period, the Administrative Court concluded that the boy evidenced ‘limited culpability’ for his serious misbehaviour and that it was ‘most unlikely’ that the Crown Court would conclude that he presented a significant risk of serious harm, provided that the anticipated intervention and supervision was made available that was considered likely to contain and address his risk. Accordingly, the challenge was upheld and the case was remitted back to the youth court to be dealt with by a disposal within its powers.
For an example of an instance where a s.91 order was set aside in favour of a DTO, in light of indications that a 14 year-old girl had joined in menacing and robbing a boy at knifepoint, see R v T. [2012] EWCA Crim 2594, detailed in Stone (2013). Though she had been ‘out of control’ and had immersed herself in street gang identity, and her offence brought her within the ambit of ‘grave crime’ sentencing, there was a realistic basis for believing that she was motivated to change without need for the kind of intervention that could be facilitated through longer-term deprivation of liberty.
Early and regular review
The limitations of the current release provisions applicable for young offenders sentenced for serious crime can be illustrated in the context of the case of manslaughter sketched earlier. Detained for terms of eight and ten years, the two young persons would not be subject to release until they had served their ‘requisite custodial periods’, four and five years respectively, one half of their sentence term (CJA 2003 s.244(3)(a)). Their release is then automatic, irrespective of progress in addressing risk. They then remain on licence for the remainder of sentence.
If they had incurred extended sentences for public protection, the relevant release provisions are more complicated. Under the present law their sentence would comprise a specified ‘appropriate custodial term’, coupled with an ‘extension period’ establishing their period of liability to licence in the community. Release on licence is ordinarily non-discretionary, under CJA 2003 s.246A, after the detainee has served the ‘requisite custodial period’, namely two-thirds of their specified custodial term. However, in the case in question, release at that point would be discretionary, under exceptions provided by s.246A(2)(a)-(b) in respect of either (i) custodial terms of 10 years or longer (as would doubtless be the case in respect of the male offender), or (ii) instances where sentence is imposed for an offence listed in Schedule 15B of the 2003 Act, manslaughter being such an offence. In these instances the offender is referred to the Parole Board after completing their requisite custodial period, the Board being empowered and required to direct release if satisfied that it is no longer necessary for the protection of the public that the detainee should remain confined. If the Board does not direct release prior to the expiry of the custodial term, the detainee will be released at that point.
In seeking to make an effective break from disposals geared broadly to retribution-based deprivation of liberty and ‘tariff’-determined eligibility for discharge back into the community, under a youth protection order it would be fundamental to require review at a significantly earlier stage. The review would be a worthwhile exercise only after the subject has been given adequate opportunity to progress, perhaps a minimum of 12 months from point of making the order. This would be timed on the basis of rehabilitative potential, not as a de facto ‘tariff’ by another name, though inevitably it would be necessary to have regard to the period of confinement that would have ensued if the young offender had incurred a maximum term DTO instead. Review would be undertaken in accordance with principles of fairness and in compliance with the European Convention on Human Rights, specifically Article 5(4) that requires the lawfulness of the subject’s continuing detention to be ‘decided speedily by a court’, in accordance with practice that has evolved in respect of determinations by the Parole Board for England and Wales. Indeed, there is a good case to be made for assigning youth protection order review to the Board, perhaps utilizing specialist panels served by members with particular experience of young people’s development, risks and needs. Further reviews would occur at least annually but with scope for the reviewing panel to direct that a re-referral should take place within a shorter time-scale and with recommendations as to what should ensue in the interim. A child/young person would be able to request an earlier further review, any such application being considered carefully by the paroling authority on the basis of its merits.
In envisaging this review process, it is worth holding in mind a frequently expressed tenet in youth justice that the offender ‘must be able to see light at the end of the tunnel’ (as expressed nearly 20 years ago in R v Powell (1994) 15 Cr. App. R. (S.) 611, involving an instance of rape following a prior conviction for sexual assault). However, borrowing the Court of Appeal’s caveat in that judgment, the tunnel may need to be ‘a long one’, having regard to the nature and extent of the young person’s problems and needs.
As regards where the young person would be located while deprived of their liberty under a youth protection order, it would be necessary to provide facilities that maximize the prospects of acheiving the developmental pathway that the order would seek to foster, capitalizing on the best experience of provision in local authority secure children’s homes (LASCHs) which have proved more effective, safe environments in comparison with secure training centres (see Stone, 2012) and better-run ‘Section 91’ units within the prison service estate. Close attention would need to be paid to the transfer of those who attain young adulthood and to the hazards of progression to the mainstream young offender institution or adult prison estate, having regard to the observations of Lord Woolf CJ when making ‘Recommendations to the Secretary of State as to Tariffs’ in the Matter of Robert Thompson and Jon Venables (26 October 2000), when contemplating the potential move of two boys at the centre of a widely publicized case (involving murder of a small child when they were aged ten), out of their respective LASCHs on attaining age 18: … transfer would be likely to undo much of the good work to which I have referred. Having been living in an unnaturally protected environment, they are unprepared for the very different circumstances in which they would be detained in a young offenders' institution. They are unlikely to be able to cope, at least at first, with the corrosive atmosphere with which they could be faced if transferred. There is also the danger of their being exposed to drugs.
Public protection and progress in promoting that objective through personal development would remain at the heart of the exercise. Those charged with progressing the child/young person towards their discharge would have greater flexibility than conventionally afforded those detained in custodial confinement, by allowing them to be rehoused in less secure circumstances, extending to small residential units in the community, somewhat akin to the approved premises operated by the National Probation Service but without the frequently toxic mix of residents at different stages within the criminal justice system, from bail to life licence, and with wide variation in their rehabilitative needs and motivation. There would be scope for considerable discretion in testing the child/young person incrementally in a range of community contexts, ranging from very short duration temporary licence, escorted and unescorted, seeking to develop where possible their family and community ties, building towards full-time independent community living.
Is there a real prospect that children/young people could remain detained for prolonged periods because of continuing concerns for their impaired development and, in consequence, for public safety? Inevitably yes, not least because of the potential for inertia, delay and fallible resource delivery, as proved all too apparent in respect of indeterminate sentences of imprisonment or detention for public protection under the 2003 Act, measures now repealed and largely unlamented. 8 It would be hoped that the predicament and challenge posed by the confinement of children would serve to galvanize efforts to progress their maturation at a time when they are arguably most receptive to change. However, there would be a need for a built-in long stop to ensure a discharge point beyond which they could not remain confined, save perhaps in very rare instances featuring the gravest form of crime coupled with the most worrying of developmental deficits. The long stop point would be determined by the court when making the youth protection order. In the instance of manslaughter posed at the outset of this Commentary, this would arguably be the point when under present sentencing the young persons would be released, in the case of the 14 year-old after four years, being a confinement end date, not the informal tariff expiry date. However, that point should not become the working assumption for prospective discharge purposes, with the ensuing risk that intervention would be geared to that timescale.
Following discharge, the child/young person would be subject to post-discharge support, oversight and resources, provided by the agency or agencies that the paroling authority would determine best to meet their resettlement needs, whether a youth offending team, adult community care social work services or the probation service. Support would mirror best practice in respect of those leaving local authority care, giving the child/young person the benefit of resources such as an education, training and employment adviser up to age 25 and a higher education bursary to facilitate university study. 9 As regards the extent to which the child/young person would be obliged to submit to supervision and oversight, on terms set by the paroling authority, this would be an inevitable requirement and would have to be backed by a form of time-boundaried sanction in response either to heightening risk or to serious non-compliance. As a last resort the child/young person would be returned to confinement, at the direction of the paroling authority and subject to speedy consideration of their case by that authority conducting an informed oral hearing, with a presumption of resumption of liberty unless continuing confinement is unavoidable. In other words the default position would be re-discharge, the onus being on the community supervising agency to establish the case for continuing confinement. The duration of such liability to precautionary sanction would be set by the court on making the order and would be boundaried to extend no longer than the child/young person would have been exposed to the prospect of recall if he or she had instead incurred a conventional sentence.
Concluding Note
This inquiry seeks to address a concern numerically modest but of major significance in the pursuit of an authentic youth justice system, namely the approach to young persons who commit grave crimes that attract greater concern and more prolonged interventive measures. In this context youth justice usually simply practices a modified rendition of adult criminal justice, CJ-lite, and those who enter the system as children tend to shade into the provisions and processes designed for their adult counterparts, becoming largely indistinguishable, their juvenile justice origins and identity disappearing from sight and significance. Though unlikely to secure populist appeal, the pathway provided by the youth protection order, sketched here, may offer a more principled alternative, anchored as it seeks to be in the principles espoused by the United Nations. A measure of this nature is not so dissimilar to the provisions in respect of mentally disordered offenders for whom a treatment disposal outwith the conventional sentencing choices, along the lines of the hospital order under the Mental Health Act 1983 s.37, with or without a restriction direction under s.41 of that Act. That is not to imply that youth justice should routinely pathologize young persons or pursue gratuitous medicalization of their developmental problems and needs, simply to underpin the obvious point that individualized and more open-ended intervention based on the subject’s personal profile can and sometimes should be a justifiable approach at the heavier end of the criminal justice spectrum.