Abstract
UK One of Just Three European Countries to Retain the Use of Life Imprisonment for Children
Life imprisonment may take a variety of forms:
Imprisonment for life without the possibility of parole, ensuring that the convicted person will never be released short of some form of judicial pardon
Life imprisonment with the possibility of parole, where the person remains in custody until, and unless, a decision to grant parole is made. Typically, such sentences involve the specification of a minimum term that must be served before parole can be considered
Indeterminate sentences which allow indefinite or unspecified periods of imprisonment, which can result in a life term in the absence of a decision to release.
Until recently, much of the focus, from a children’s rights perspective, targeted life imprisonment without the prospect of parole. This form of disposal has been significantly less common than the other two described above, and as noted in a previous Youth Justice news, the American Supreme Court has recently ruled such sentences as unconstitutional (Bateman, 2012). Approximately, nine other States retain this sentence as an option for children, but in practice it is rarely applied.
In November 2012, the United Nations General Assembly called upon States to consider repealing all forms of life imprisonment for children. The United Nations Convention on the Rights of Child explicitly prohibits life imprisonment without parole and further requires that the detention of children should be a measure of last resort and for the shortest appropriate period, implying that child imprisonment should be used sparingly and that children who are incarcerated should be released as soon as they no longer pose a risk of serious harm. Indeed, the United Nations Committee on the Rights of the Child, in its General Comment on Juvenile Justice, explains that life imprisonment of a child would render it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release, the Committee strongly recommends the States parties to abolish all forms of life imprisonment for offences committed by persons under the age of 18.
Such pronouncements notwithstanding, according to a report published by the Child Rights International Network (CRIN) in March 2015, legislation that permits life imprisonment for offences committed while under the age of 18 years remains widespread. In many countries, data on the sentencing of children are not routinely published, and this lack of transparency not only makes it difficult to hold States accountable for their treatment of child offenders, but undermines the ability of States to engage in evidence based reviews of sentencing and measure the rehabilitative merits of that sentencing.
There is, nonetheless, sufficient information to determine that ‘inhumane sentencing of children’, as CRIN characterises it, is prevalent: life imprisonment of children is permitted in at least 73 jurisdictions. Where States have moved to abolish life sentences, they frequently retain lengthy custodial options: a further 25 states permit sentences of 20 years or more, 49 allow detention of 15 years or above and 90 countries have legislation that provides for custody for 10 years or more. In Thailand, children can receive a prison sentence of 50 years, which in many cases would amount to de facto life imprisonment. For 12 States, the authors of the report were unable to establish the maximum sentence that could be imposed on a child.
There are, not surprisingly, significant geographical variations in the custodial treatment of children, and these pertain both between and within regions. Within Africa, 23 out of 54 countries have legislation that affords the possibility of life imprisonment of children. However, there is a divergence between States based in North Africa, which have largely abandoned the practice, and Sub-Saharan jurisdictions where it remains widespread. But the distinction is not simply one of geography since more than half of States that continue to permit life imprisonment for children are current or former members of the British Commonwealth. Conversely, African members of the Community of Portuguese Language Countries have all, with the exception of Mauritius, moved to abolish it. As shown in Table 1, among the 26 states that have established clear upper limits for the detention of children, there is a significant range from 3 years in Uganda, one of the world’s lowest, to a maximum of 30 years. Three other States set an upper limit by reference to the maximum penalty that can apply to an adult: the maximum sentence for a child in Libya is one-third of that permitted for an adult; in Djibouti, one half; and in Guinea-Bissau, two-thirds.
Maximum period of child imprisonment for African states that have a clear upper limit.
In 2012, Argentina became the last country in mainland Latin America to abolish life imprisonment for children. Brazil, Bolivia and Peru have all established a maximum cap on child incarceration of 3 years. In contrast, legislation in much of North America and many of the Caribbean States continues to provide for various forms of detention for life. All but two of these States have been part of the British Empire at some point in their history. As elsewhere, a lack of data makes it difficult to establish a comprehensive picture but it would appear that the United States, where legislation varies from state to state, detains the largest number of persons subject to life imprisonment imposed as a child, an estimated 7626 in total.
CRIN was unable to ascertain how many children are detained subject to a life sentence in Asia, but at least 16 of the 45 States in the region have legislation that permits it. Moreover, almost half of these (seven) retain the death penalty for children. Iran, Saudi Arabia and Yemen have each executed children within the last 5 years.
The picture in Europe is substantially different to that in other continents: all but 8 of the 48 States within the region have laws that explicitly prohibit life imprisonment for children or that establish a clear upper limit on the duration of incarceration. The situation in a number of countries is unclear, but just three States retain legislation that unambiguously permits detention for life: France, Cyprus and the United Kingdom, with the latter including the jurisdictions of England and Wales, Scotland and Northern Ireland. However, practice within those three States shows a radically different complexion. CRIN found no evidence of the power being used in Cyprus, and just two children have been sentenced to life imprisonment in the last 25 years in France. By contrast, 117 children were detained at Her Majesty’s Pleasure between 2008 and 2013 in England and Wales. As shown in Table 2, figures provided in answer to a Freedom of Information Act request demonstrate that from 2004 onward, the average minimum custodial term served by this cohort has routinely been longer than 10 years. Between 2008 and 2013, a further 290 children were subject to detention for public protection (a disposal which afforded indefinite detention but has subsequently been abolished). In Scotland, between 2001 and 2013, 113 young people below the age of 21 years (figures are not disaggregated for children) were subject to ‘detention without limit of time’.
Number of children sentenced to detention during her Majesty’s Pleasure in England and Wales for the offence of murder and average minimum custodial term served.
Within those European States which have established a maximum custodial sentence for children, there is substantial variation: in San Marino, the upper limit is 30 years; 29 States have a maximum of 15 years; most Eastern European jurisdictions have opted for 10 years; in Switzerland, the maximum permissible imprisonment of a child is 4 years: General Comment no 10 (2007) – Children’s rights in juvenile justice, by the UN Committee on the Rights of the Child, is available at http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf Inhuman sentencing: life imprisonment of children around the word, is published by the Child Rights International Network and is available at: http://childhub.org/sites/default/files/library/attachments/life_imprisonment_report_final.pdf Figures for the number of children sentenced to detention during Her Majesty’s pleasure for an offence of murder are given in Response to Freedom of Information Request 92120 Juveniles sentenced for murder under Section 90 of the Powers of Criminal Courts (Sentencing) Act 2000, England and Wales, 1995–2013.
Plans to Replace Young Offender Institutions in England and Wales by a Network of ‘Secure Colleges’ Halted
Section 38 of the Criminal Justice and Courts Act 2015, which received Royal Assent in February, contains provision for the establishment of secure colleges as one of the places of detention that children subject to custodial sentences or remands in England and Wales can be imprisoned. The new form of institution was intended to be an integral part of the then Coalition government’s plans for ‘Transforming youth custody’ that would ‘put education at the heart of detention’.
The proposals were, however, subject to extensive criticism because of the proposed size of the establishments, which were intended to hold up to 320 children. For instance, the Standing Committee for Youth Justice, an umbrella group of non-governmental organisations, pointed out that large custodial institutions are typically violent and intimidating … [T]hey result in children being detained far from their homes, making resettlement and family contact far more difficult.
It was noted too that the planned accommodation of girls and younger children within the same institution as 15- to 17-year-old boys was problematic since the former would be in a very small minority, creating unprecedented safeguarding risks. Being part of such a small minority will be hugely intimidating and the regime will inevitably be designed around the majority’s needs.
The provisions of the legislation relating to secure colleges were brought into force on 20 March 2015. However, following the election of a Conservative administration in May 2015, Andrew Selous, Parliamentary Under-Secretary of State with responsibility for youth justice, confirmed in answer to a Parliamentary question on 9 July that the government no longer planned to proceed with the pathfinder secure college, arguing that ‘it would not be right to house one third of the entire youth offender population in one setting’. He also noted that it would be a mistake to press ahead with the development given the requirement to reduce public expenditure. In response to a supplementary question, the Minister confirmed that total expenditure on the abandoned project had to date been £1.56 million.
While the decision has been widely welcomed within the children’s sector, there are no longer any extant plans for the improvement of the secure estate for children. Her Majesty’s Chief Inspector of Prisons, in his annual report published July 2015, noted that only one out of five young offender institutions, where the majority of imprisoned children are held, was able to meet expectations that detainees would be out of the their cells for 10 hours a day. Moreover, only 35 per cent of boys said that it was easy for friends and families to visit them. The level of violence had increased in such institutions and one-quarter of boys reported spending at least one night in segregation units where ‘conditions remained mostly poor’.
The use of secure children’s homes (SCHs) that might represent an alternative, smaller form of provision, with a considerably higher staff to child ratio and a child care rather than custodial ethos, has continued to decline. Figures published by the Department for Education, in June 2015, indicate that two more SCHs closed during 2014/2015, representing a reduction in capacity of 44 places. Since SCHs also accommodate children secured on welfare grounds, not all of this fall represents a contraction in youth justice provision. However, as shown in Table 3, between March 2010 and March 2014, the number of placements in SCHs commissioned by the Youth Justice Board (YJB) fell by 28 per cent.
The Coalition government’s plans for the reconfiguration of the custodial estate are given in Transforming youth custody: putting education at the heart of detention, published by the Ministry of Justice and available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/181588/transforming-youth-custody.pdf The Standing Committee for Youth Justice’s critique of secure colleges is in Secure colleges and the Criminal Justice and Courts Bill (Part 2 and Schedules 5 & 6): House of Lords Report Stage briefing, available at: http://scyj.org.uk/wp-content/uploads/2014/10/CJC-Bill-HoL-Report-Stage-FINAL.pdf The Minister’s answers are given at: Hansard House of Commons, 9 July 2015, C5710 and Hansard House of Commons, 10 July 2015, C6533. HM Chief Inspector of Prisons for England and Wales Annual Report 2014–15 is available at: www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2015/07/HMIP-AR_2014-15_TSO_Final1.pdf Statistics on children placed in secure children’s homes are derived from Children accommodated in secure children’s homes at 31 March 2015: England and Wales, published June 2015, available at: www.gov.uk/government/statistics/children-accommodated-in-secure-childrens-homes-31-march-2015
Places in secure children’s homes contracted by the Youth Justice Board: 2010–2015.
YJB: Youth Justice Board.
The Number of Children Referred to the Scottish Children’s Reporter on Offence Grounds Rises Slightly after 8 Years of Decline
Children between the ages of 8 and 16 years who commit offences in Scotland are referred to a Children’s Reporter for a decision as to how to proceed with the case. Youth justice in Scotland is predicated on a welfare approach and the Scottish Children’s Reporter Administration (SCRA) also deals with referrals for children in need of care and protection so that both care and criminal justice matters are subject to the same process.
According to a statistical analysis published by the SCRA on the 30 July 2015, 15,858 children in Scotland were referred to the Reporter during 2014/2015, representing a 17 per cent decrease over the previous year. However, a large majority of referrals (83%) were on care and protection grounds and the decline in this cohort accounted for the overall fall. Referrals on offence grounds rose by almost 5 per cent over 2013/2014, but this followed progressive reductions in each of the previous 8 years. As shown in Table 4, the number of offence referrals shown in the latest data was 59 per cent below that in 2011/2012.
Referrals to the Reporter by grounds of referral: 2011/2012 to 2014/2015.
Most frequently, children referred on offence grounds had committed a single offence with this accounting for more than 4 in 10 referrals; slightly fewer than 10 per cent of children referred had committed 10 or more offences.
The Reporter has a wide range of options in dealing with cases referred, which include, where it is considered that compulsory measures may be required, arranging for the child to attend a Children’s Hearing. The Hearing is a meeting at which the Children’s Panel, consisting of trained community volunteers, makes decisions as to the type of intervention that the child should receive based on his or her best interests.
There is a marked divergence in the proportion of cases that proceed to a Children’s Hearing depending on whether the referral is made on offence grounds or not. In 2014/2015, as indicated in Table 5, whereas the Reporter’s decision was to arrange a hearing in almost one in five cases referred on grounds of care and protection, the equivalent figure for offence grounds was just over one in 20.
Decision of the reporter by type of referral: 2014/2015.
Part of the explanation for the difference is that for more than one-third of the latter group, no hearing was required as measures were already in place, while this was the case for just 15 per cent of those referred on grounds of care and protection. However, the Reporter was also more likely to decide that no compulsory measures were required for children who had committed an offence, with this outcome accounting for almost 35 per cent of all offence referrals.
The Children’s Hearing can, where it considers it appropriate, impose a compulsory supervision order (CSO). During 2014/2015, 109 new such orders were imposed on children referred for offending. Such orders are supervised by the local authority and may require the child to comply with designated arrangements for his or her care. On 31 March 2015, there were 10,733 CSOs in place, an 18 per cent reduction over the same date in 2012. The most common form of requirement – constituting 44 per cent of the total – was that the child should reside with his or her parent or relevant person, but the statistical analysis does not disaggregate the figures according to whether or not the referral was on offence grounds. A CSO can also include a secure authorisation which permits the placement of the child in secure accommodation. The number of orders with a secure authorisation increased in 2014/2015 from 124 to 142 by comparison with the previous year, a rise of 14.5 per cent. As shown in Table 6, there has been a tendency towards a growth in the use of such conditions since 2011/2012. The analysis does not, however, provide information on how many such requirements apply to children who have offended.
Statistical analysis 2014/15, is published by the Scottish Children’s Reporter Administration and is available at: www.scra.gov.uk/publications/online_statistical_service.cfm
Number of secure authorisations as conditions of compulsory supervision order made by Children’s Hearings.
Research from the United States Confirms that the Deterrent Effect of More Severe Punishments Is ‘Limited’
As discussed in a recent Legal Commentary in this journal, sentencing policy and practice is frequently underpinned by assumptions about the deterrent effect of custodial and other punitive sanctions (Stone, 2014). Research recently published by the Office of Juvenile Justice and Delinquency Prevention in the United States considers the extent to which the threat of harsh punishment has a positive impact on the criminal activities of ‘serious adolescent offenders’.
The research draws on data from the Pathways to Desistance study which followed more than 1300 ‘serious juvenile offenders’ over a 7-year period. The authors argue that the study provides an important insight in the effectiveness of deterrence given the disproportionate involvement of participants in serious crime combined with strong likelihood that they will desist from offending as they make the transition to adulthood.
The study considered two aspects of deterrence: first, the ‘certainty hypothesis’ which postulates that young people’s inclination to engage in offending will be inversely related to their perception that they will be apprehended and that punishment will ensue; second, the ‘severity hypothesis’ which holds that potential offenders will be progressively deterred from criminal activity as the harshness of potential penalties increases.
The study found that young people did tend to amend their perceptions of the risk of apprehension according to whether or not a particular incident of lawbreaking resulted in arrest. Importantly, however, the extent to which this occurred varied: young people with a more extensive experience of the criminal justice system no longer updated their ‘risk perceptions’ in response to individual arrests. Accordingly, apprehensions for offending ‘early in an individual’s criminal career may produce a greater deterrent effect than those that occur later on’. Moreover, it appeared that any potential impact was crime specific: young people did not, in other words, amend their risk perceptions in response to an arrest in relation to all forms of criminal behaviour, but only to the form of offending detected. The authors conclude that police crackdowns on one type of crime are unlikely to deter other crimes. They may even encourage other crimes by shifting limited police resources away from detecting certain crimes or by inducing a substitution effect, in which offenders switch their preferences from crimes with a high likelihood of detection to crimes that are more likely to escape detection.
Increased perceptions of risk of being caught were not related in a linear fashion to falls in self-reported offending, particularly for children with a lower likelihood of committing a crime, who were ‘relatively insensitive to sanction risk’. Moreover, individuals who overestimated the risk of arrest (perceiving it to be in excess of 90%) were very unlikely to offend in any event. As a consequence, ‘policies aimed at such individuals with high perceptions of risk are perhaps inefficient or unnecessary’. Conversely, where young people were uncertain, or ambiguous about the likelihood of detection, there was a deterrent effect, suggesting perhaps that an element of ‘randomisation’ in police activity, focusing on different offence types at different times, might have a greater impact.
In terms of the severity hypothesis, participants who received custodial sentences had higher rates of recidivism than those placed on probation, and these differences pertained to both self-reported offending and data on arrests. This variation is explained in part through a selection effect since incarceration is likely to be reserved for those with a more extensive or serious offending history. An analysis of matched groups, however, confirmed that there was no deterrent effect of institutional placement. Moreover, there were no additional reductions in reoffending associated with increased sentence length. Indeed, a small criminogenic effect, manifested as a slightly heightened risk of recidivism for the custodial sample, was observed, but the possibility that this was an artefact of ‘random sampling variability’ could not be ruled out. The authors accordingly conclude that there is no evidence of a meaningful reduction in either offending or arrests in response to more severe punishments. Studying deterrence among high-risk adolescents, by Thomas A. Loughran, Robert Brame, Jeffrey Fagan, Alex R. Piquero, Edward P. Mulvey, and Carol A. Schubert, is published by the Office of Juvenile Justice and Delinquency Prevention, and is available at: www.ojjdp.gov/pubs/248617.pdf
‘Stocktake’ of Youth Offending Teams in England and Wales Finds that a Narrow Focus on ‘Youth Justice Metrics’ Might Undermine Wider Benefits
In November 2014, Andrew Selous, Minister with responsibility for youth justice, announced a ‘stocktake’ of youth offending teams (YOTs) in England and Wales and the government commissioned Deloitte to undertake the work. The Association of YOT Managers (AYM) expressed concern that the focus of the review was to identify areas where financial savings might be made, branding it a ‘cover for cuts’.
Perhaps cognisant of such concerns, the YJB for England and Wales, which has a statutory responsibility for monitoring the delivery of youth justice services, conducted its own review over the same period as the stocktake. The latter, the Board explained, was a necessary complement that would provide ‘a more qualitative contextual analysis’. Both reports were published by the Ministry of Justice on 15 July 2015.
YOTs were established by the Crime and Disorder Act 1998 as multi-agency bodies with a minimum statutory membership of social services, education, health, police and probation. These partnerships were intended to be the primary local agency for the delivery of community-based youth justice provision. In the period since the Act, as the YJB notes, the landscape has changed substantially. First, the number of children receiving a formal youth justice disposal has declined dramatically from 2008 onwards. While there has also been a sizeable contraction in YOT resourcing, the fall in detected youth offending has led, on Deloitte’s estimate, to a reduction in statutory caseloads from an average 21 to 11 between 2009/2010 and 2013/2014. Second, centralised prescription has given way to an increasing diversity of YOT provision at a local level. Consequently, a standalone partnership is no longer the standard model; according to the YJB, nearly all YOTs are now integrated into broader service provision.
Although fiscal constraint is one driver of that evolution, both Deloitte and the Board also point to a reorientation of YOTs’ focus towards prevention. The former, for instance, explains that while all YOTs continue to fulfil their statutory functions, three-quarters are also engaged in wider provision to children who are not adjudicated offenders. The Board maintains that all areas ‘prioritised prevention and early intervention’. This most commonly involved active involvement by YOT workers, and in some cases, the YOT prevention team outnumbered statutory staff; just one of 20 YOTs visited worked exclusively with statutory cases, but this team seconded to managers to the prevention service.
The Deloitte analysis recognises that this extensive activity and the benefits that derive from it are not currently captured by the government’s performance measures for youth justice, which focus on reducing: the number of children entering the system for the first time, the custodial population and reoffending. Any assessment of value for money is rendered difficult because there is a ‘discrepancy between what YOTs do and what is measured by the Ministry of Justice’. More specifically, while a narrow focus on core duties might suggest that savings could be made, this would risk ‘undermining other outcomes… that YOTs may positively influence’.
In this context, the Board argues that such broader outcomes are integrally related to the narrow indicators by which performance is currently assessed. As a consequence, reducing central government funding without understanding the potential impact risks undermining the successes achieved by the youth justice system in recent years.
Deloitte’s report confirms that there is a relationship between such wider activities and narrower metrics since YOTs that undertake prevention work have fewer first-time entrants than those that do not. While a causality link is not ‘proven’, it can be ‘reasonably hypothesised that YOT’s holistic working has contributed’ to the achievements within the confines of the formal youth justice system. The stocktake thus recommends that the government should ‘clarify and agree the outcomes desired in youth justice’ and adjust funding allocation accordingly.
Paradoxically, and in tension with the tone elsewhere in the analysis, Deloitte also argues that ‘there is little relationship between funding levels and performance … In addition, the impact of staffing levels on performance seems to be limited’.
This latter assessment would appear to contradict the earlier contention that budget cuts might have a deleterious effect on outcomes and is unlikely to allay AYM fears that the exercise was designed to identify savings.
Whether or not such concerns were justified, subsequent developments have confirmed that the government is intent on making further reductions in youth justice resourcing. On 28 July 2015, Lin Hinnigan, Chief Executive of the YJB, wrote to YOT Management Boards indicating that, notwithstanding budget reductions of 50 per cent since 2010, the Ministry of Justice had indicated that further savings of £12 million were to be found within the current financial year. The letter confirms that the two largest elements of Board expenditure consist of commissioning the custodial estate (£140 million), an amount which is already largely predicated, and grants to YOTs (£85 million), the first tranche of which is already allocated. It allows that, despite representations to government as to the importance of maintaining youth justice preventive work, the ‘harsh reality’ is that there may be little alternative to reducing the in-year YOT grant (in effect the second instalment) by £12 million, amounting to a 14 per cent cut. Such stringencies, the letter concedes might lead to a reversal of the positive trends we have seen over recent years. This would see more young people coming in to the system; rising costs for police, courts and other justice agencies and, ultimately, risk increasing custodial populations which would mean new places in secure establishments must be commissioned.
A subsequent consultation, published by the YJB on 26 August 2015, revealed that savings to be achieved in 2015/2016 were in fact at £13.5 million greater than previously suggested because of a projected Board overspend of £1.5 million prior to the announcement of further in-year cuts. The document identifies a number of areas of identified potential savings shown in Table 7 totalling £4.5 million. It further proposes that the shortfall of £9 million is met by reducing the second instalment of the YOT grant by that amount: The Minister’s announcement of the YOT stocktake is reported in Children and Young People Now on 18 November 2014, available at: www.cypnow.co.uk/cyp/news/1148224/yot-stocktake-assess-services-evolve The AYM’s comments are cited in Managers brand youth offending team stocktake ‘a cover for cuts’ by Joe Lepper, in Children and Young People Now on 22 May 2015, available at: www.cypnow.co.uk/cyp/news/1151621/managers-brand-youth-offending-team-stocktake-a-cover-for-cuts Youth offending team stocktake, by Deloitte, is available at: www.gov.uk/government/publications/stocktake-of-youth-offending-teams Youth offending teams: making the different for children and young people, victims and communities, by the YJB, is available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/445271/Board_Visits_Final_Report.pdf The content of Lin Hinnigan’s letter to YOT Management Board’s is reported in Michael Gove’s MoJ cuts could see more children jailed, warns Youth Justice Board, by Nigel Morris, in the Independent newspaper 14 August 2015, available at: www.independent.co.uk/news/uk/crime/michael-goves-moj-cuts-could-see-more-children-jailed-warns-youth-justice-board-10456670.html Proposal to reduce the Youth Justice Board’s expenditure in 2015/16: consultation paper is published by the YJB and is available at: www.gov.uk/government/consultations/yjb-proposals-to-find-135m-savings
Youth justice savings 2015/2016 proposed by the Youth Justice Board.
YJB: Youth Justice Board; YOT: Youth Offending Teams.