Abstract
New Measures to Address ‘Serious Youth Violence’ Introduced in England and Wales as Part of the ‘Strongest Possible Response’
In England and Wales, the issue of serious youth violence, and knife crime in particular, has received considerable attention in the recent period, leading to Theresa May, the Prime Minister, hosting a 4-day ‘serious youth violence summit’ in early April 2019. According to Sajid Javid, the Home Secretary, the summit was an indication of the government’s concern in relation to the ‘recent rise’ in such offending, which he maintained required ‘the strongest possible response’ delivered in the form of a multi-agency, ‘public health’ approach.
Among the measures announced were the following:
The establishment of a ministerial taskforce on serious youth violence to be chaired by the Prime Minister;
£100 million additional funding in 2019/2020, most of which will be made available to Police and Crime Commissioners in the seven police force areas with the highest levels of serious violence, which in combination account for around 70 per cent of all knife crime in England and Wales;
A public consultation on a new legal duty on public bodies to ensure that they work together to protect young people at risk of becoming involved in knife crime; and
An expansion in police stop and search powers.
The latter concerns a relaxation to the guidance in relation to the exercise of section 60 of the Criminal Justice and Public Order Act, which allows police to stop and search anyone in a designated area in which serious violence is anticipated without any grounds for suspicion in respect of the individual searched. The relaxation reduces the authority required to authorise the use of section 60 to the level of inspector; it also lowers the threshold for such authorisation from a reasonable belief that serious violence will occur to a belief that it may occur. The new provisions will apply for a 12-month period in the first instance, in the same seven police force areas as will benefit from increased funding.
An increased resort to stop and search is not uncontroversial. Critics note that it represents a clear reversal of the government’s position in 2014 when Theresa May, then Home Secretary, called for greater police accountability in the use of stop and search powers, leading to the imposition of the conditions which are now to be relaxed. Liberty, a national human rights charity, points out that Black people are 8 times more likely to be targets of stop and search than their White counterparts, rising to 14 times more likely where the power is used without suspicion.
Government statistics show that there has been a considerable decline in the use of section 60 searches since the turn of the decade from 62,429 in 2010/2011 to 2501 in 2017/2018, a fall of 95 per cent. However, as shown in Table 1, the most recent year for which figures are available showed a sharp rise of almost 300 per cent over the previous 12 months. The table also shows that the rate of arrests for offensive weapons, as a proportion of the total searches conducted, is extremely low but tends to increase as the number of searches falls, suggesting that targetting improves when the power is used less frequently. (Figures are not disaggregated for age so the specific pattern for children cannot be established, but young people are overrepresented among those stopped by the police.)
Stop and searches under section 60 of the Criminal Justice and Public Order Act: all ages – 2010/2011 to 2017/2018.
A further measure designed to address the issue of knife crime is contained within the Offensive Weapons Bill currently before Parliament. Part 2 of the Bill provides for the introduction of a ‘knife crime prevention order’ (KCPO) available for individuals aged 12 years or older, though civil proceedings, where the court is satisfied on the balance of probabilities that
On at least two occasions in the relevant period, that person had a bladed article with them without good reason in a public place or on educational premises; and
Such an order is necessary to protect the public or to prevent the person from committing further knife-related offences.
An order will also be available in the criminal court, on conviction, where the offence involves violence or the use of a bladed article and the court considers that an order is required to prevent further similar offences or for public protection. In either case, where the subject of the application is a child, the court must consult with the local youth offending team before imposing an order.
The effect of the order is to impose requirements and prohibitions on the individual that are deemed by the court necessary to address the concerns that led to its imposition, for a period between 6 months and 2 years. The prohibitions in particular appear similar to those associated with the anti-social behaviour order (ASBO) (subsequently replaced by civil injunctions and criminal behaviour orders) in that they will be able to prohibit the individual from specified geographical locations or associating with named individuals. The positive requirements, on the other hand, can include a curfew. As with the ASBO, although the order is civil, breach of any requirement or prohibition is a criminal offence, which can attract a custodial sentence of up to 2 years in the case of a child.
These proposals have also been subject to criticism. The Standing Committee for Youth Justice and Prison Reform Trust’s joint briefing on KCPOs, published in March 2019, points out that the orders have not been subject to any meaningful consultation, with no input from key youth justice stakeholders such as the Youth Justice Board, the Children’s Commissioner, the Association of Youth Offending Team managers or children’s services. The briefing argues that there is no evidence that the orders will have the desired effect of reducing youth knife crime and that they have the potential to: be net-widening, labelling, disproportionately impact BAME communities, and impose more criminal sanctions on vulnerable children and young people.
The briefing expresses concern that breach of the order will be common, leading to an increase in the number of children in custody. Certainly, high breach rates were a feature of ASBOs, with government data showing that, of the 8710 orders imposed on children between 2000 and 2013, 5980 (69%) resulted in a conviction for breach and 37 per cent of breaches resulted in a custodial sentence.
It is important to note, in any event, that the extent of the rise in youth violence and knife crime shown in government data is less marked than some of the policy debates might suggest. According to figures published by the Youth Justice Board and Ministry of Justice in January 2019, there was a modest rise in detected knives and offensive weapons offences committed by children in 2017 and 2018. However, as indicated in Table 2, over the longer term, there has been a decline in such offences of 30 per cent since 2009. Nonetheless, the seriousness with which such offending is viewed is shown by a rise in the number of custodial offences imposed for such offences, from 540 in the former year to 595 in 2018, with most of the increase concentrated in the most recent 3 years. Given the decline in the total number of offences, the rise in the rate of custody is sharper than the absolute numbers suggest.
Detected knife and offensive weapons offences committed by children: 2009–2018.
Although they do not distinguish between serious youth violence and other forms of violent behaviour, official statistics also show a long-term decline in proven violent offending by children. Between 2009 and 2014, the number of such offences committed by children fell by 58 per cent, from 47,490 to 19,805. There was a small rise in the following 2 years, to 20,874 in 2016, with further modest decreases over the next 24 months to 20,111 in 2018: The Home Secretary’s account of the Prime Minister’s Serious Youth Violence Summit is given in a written statement to Parliament on 8 April 2019, available at: www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2019-04-08/HCWS1497/. Changes to the stop and search powers are explained in Greater powers for police to use stop and search to tackle violent crime, Home Office press release, published on 31 March 2019 and available at: www.gov.uk/government/news/greater-powers-for-police-to-use-stop-and-search-to-tackle-violent-crime. Liberty’s concerns can be found in Police and politicians’ response to violent crime risks being counter-productive, by Rachel Robinson, published on 10 April 2019 and available at: www.libertyhumanrights.org.uk/news/blog/police-and-politicians-response-violent-crime-risks-being-counter-productive. Figures on the use of stop and search powers under section 60 are given Police powers and procedures, England and Wales, year ending 31 March 2018, published by the Home Office on 25 October 2018, available at: www.gov.uk/government/statistics/police-powers-and-procedures-england-and-wales-year-ending-31-march-2018. The proposals for Knife Crime Prevention Orders are contained in the Offensive Weapons Bill, as amended on report, available at: https://publications.parliament.uk/pa/bills/lbill/2017-2019/0162/18162.pdf. The concerns raised by the Standing Committee for Youth Justice and the Prison Reform Trust are given in Joint Briefing on Knife Crime Prevention Orders, published in March 2019, and available at: www.prisonreformtrust.org.uk/Portals/0/Documents/parliament/Offensive%20Weapons%20Bill%20HoC%20ConsLordsAms.pdf. Data on breaches of anti-social behaviour orders are given in Anti-social behaviour order statistics: England and Wales 2013, data tables, and are available at: https://www.gov.uk/government/statistics/anti-social-behaviour-order-statistics-england-and-wales-2013. Figures for detected weapons offending and proven violent offences committed by children are derived from Youth Justice Statistics 2017/18, England and Wales, supplementary tables, published by the Youth Justice Board and Ministry of Justice in January 2019, and available at: https://www.gov.uk/government/statistics/youth-justice-statistics-2017-to-2018.
A Fall in Child Arrests in England and Wales Is Accompanied by a Rise in the Overrepresentation of Minority Ethnic Children
The number of children arrested in England and Wales has fallen sharply over the past decade. According to figures published by the Youth Justice Board and Ministry of Justice in January 2019, there was a 78 per cent decline in child arrests between 2008 and 2018, from 303,296 to 65,833. As shown in Table 3, the decrease for girls, who represent a small proportion of those arrested has been more marked than that for boys: in 2008, girls accounted for one in five of those children arrested; by 2018 that figure had fallen to one in six.
Child arrests by gender: 2008–2018.
The demographic profile of children arrested has also changed when considered in terms of ethnicity. The decline in arrests has been accompanied by a considerable rise in the proportionate representation of children from Black and other ethnic minorities. As demonstrated in Table 4, the reduction in arrests of White children has been substantially greater than that for any other group, with the contrast being most marked with Black or Black British children. While the number of arrests involving White children fell between 2008 and 2018 by 82 per cent, the equivalent figure for Black children was just 56 per cent. Black children accounted for 8 per cent of child arrests in the former year; in 2018 that proportion was 16 per cent, 4.2 times higher than would be expected given the make-up of the general 10–17 population.
Changes in the number of child arrests by ethnicity: 2008–2018.
It is worth noting that the arrest data also provide evidence of what might be termed justice by geography. The number of child arrests per 1000 children in the local population shows considerable variation from one police force area to another. Table 5 gives the 10 highest and lowest areas on this measure. While it is likely that some of the differences reflect local levels of youth crime and some – such as figures for the City of London – will be artefacts of low numbers, it seems unlikely that this could provide a full account of the extent of the disparities. For example, Merseyside and Greater Manchester, both largely urban areas in the north-west of England, had comparative arrests of 41.6 and 16.3, respectively.
The rate of child arrests per 1000 in the local population by police force area: 10 highest and 10 lowest areas: 2018.
Data on child arrests are derived from Youth Justice Statistics 2017/18, England and Wales, supplementary tables, published by the Youth Justice Board and Ministry of Justice in January 2019, and available at: https://www.gov.uk/government/statistics/youth-justice-statistics-2017-to-2018.
One-quarter of children, in the United States, placed in residential facilities for offending behaviour, are in establishments holding more than 100 residents
In the United States, a broad range of different institutions provide residential accommodation for children in conflict with the law that vary substantially in terms of their size, type of facility, the extent to which ‘confinement features’ are routinely used and management arrangements. A paper published by the Office for Juvenile Justice and Delinquency Prevention, in December 2018, reports on the findings of a census conducted of such facilities in October 2016, providing a snapshot of such provision. In total, 1772 residential establishments were captured by the survey, including those described as detention centres, reception centres, training schools, residential training schools, group homes and ‘ranch/ wilderness camps’. Some of the facilities also provide accommodation for children on non-offence grounds but, on the relevant census date, 45,567 children were detained as a consequence of their offending behaviour. This figure represents a decline by comparison with previous years. Between 1975, when the first census of children in custody was conducted, and 2000, the data registered an increasingly large population held in residential provision; thereafter the number of children in custody has tended to fall and, in 2016, was the lowest recorded with 2476 fewer children incarcerated than in 1975.
Alongside the fall in the use of residential facilities, there has been a welcome decline in the number of deaths of children in custody. Six children died while placed in residential facilities in the year ending September 2016; of these deaths, three were recorded as accidental, two due to illness or natural causes and one case of suicide. This level of fatalities is the lowest on record. Between 1988 and 1994, there was an average of 46 deaths per annum, of which 18 were suicides. Between 2000 and 2016, these averages reduced to 17 and 7, respectively.
As noted above, facilities vary considerably in size, ranging from those that accommodate fewer than 10 children to those with a capacity for more than 200. While the former account for around one-third of all institutions, they hold fewer than 1 in 10 of all children in detention; conversely only 1 per cent of establishments have the capacity to hold more than 200 children, but such institutions hold 8 per cent of the total population. As shown in Table 6, one-quarter of children in residential provision reside in establishments with more than 100 residents.
Breakdown of residential facilities by the number of children accommodated.
There is, moreover, a relationship between establishment size and the use of, what the report terms, ‘confinement features’ such as: external fences or walls with razor wires; children being locked in their bedroom at night; or locked doors to confine children to particular buildings, wings or specific rooms. Previous surveys have found a tendency for the use of such features to rise in line with the size of the institution. The year 2016 confirmed this general pattern, but confinement measures were most likely in establishments holding between 101 and 200 children: Information on residential facilities is taken from Juvenile Residential Facility Census 2016: selected findings, by Sarah Hockenberry and Anthony Sladky, published by the Office for Juvenile Justice and Delinquency Prevention and available at: https://www.ojjdp.gov/pubs/251785.pdf.
Inquiry Concludes There were at least 1070 Allegations of Child Sexual Abuse in Custodial Institutions in England and Wales Between 2009 and 2017
The use of isolation and restraint on children in custody in England and Wales has, according to official data, risen sharply in recent years. As shown in Table 7, when considered as a monthly rate of the number of incidents for every 100 children detained, both types of responses have shown substantial year-on-year increases. The growth in the use of, what the Government refers to as, ‘single separation’, has been particularly pronounced.
Monthly incidents of ‘single separation’ (isolation) and ‘restrictive physical intervention’ (restraint) per 100 children in custody: 2015–2018.
The use of such measures has recently been considered in more depth by the Joint Parliamentary Committee on Human Rights, which reported on the subject in April 2019. The Committee is concerned with solitary confinement and restraint of all children deprived of their liberty, including those in penal custody, those in secure settings for their own welfare and those secured under mental health legislation. It estimates that, at any one time, 2500 children are detained, through these various routes, across England and Wales at any one time, of which approximately 900 are sentenced or remanded to custody for offending, although it seems likely that some of those included in the heath figures are not in a locked environment.
In relation to restraint, the report notes that measures to minimise it are required not simply because of the potential for pain, physical and psychological harm, important though these issues may be, but also because it damages ‘relationships between children and staff, inhibiting the provision of care and the modelling of normal relationships’. Physical restraint can compound and reproduce the negative consequences of earlier abuse and adverse experience; it is simultaneously the use of force as a legitimate response to children’s challenging behaviour rather than care and treatment. As a consequence, it can undermine any potential for rehabilitation while the child is in detention.
While acknowledging that the data are hard to interpret, the Committee points to official statistics that show there are 6600 ‘use of force’ incidents against children in youth justice custody per annum, leading to 100 reported injuries in 2017. Rates of restraint are, moreover, higher for children from minority ethnic groups. In young offender institutions (YOIs) and secure training centres (STCs) (but not secure children’s homes (SCHs)), the approved methods of restraint include those deliberately designed to cause pain by inflicting: a momentary sharp pain … sufficiently unpleasant to cause the child to desist from physical resistance and comply with instructions.
Such ‘pain distraction techniques’ were used around 260 times in the year ending March 2018, a figure that represents a rise of 136 per cent over the previous 12-month period.
In YOIs, which hold the large majority of children remanded or sentenced to custody, restraint is also permitted for the purposes of ‘good order and discipline’. (It was previously part of the guidance that applied in STCs but was withdrawn by the Government following legal challenge.) The Committee heard evidence that this option often led to the use of force as a ‘blunt instrument’ that undermined children’s trust in the adults tasked with caring for them and that provided a poor role model of how disputes should be resolved.
The Committee concludes that pain-inducing restraint is ‘clearly not compliant with human rights standards’ and should be prohibited in those institutions in which it is currently permitted. Restraint for the purposes of good order and discipline is also contrary to human rights and its use should be discontinued in YOIs ‘in all but the most exceptional circumstances’.
In relation to isolation, the Committee notes that, while all types of establishments allow the temporary separation of children from their peers, practices vary significantly from one form of institution to another, including those within the youth justice secure estate. The Committee considered evidence that separation can cause psychological harm and exacerbate poor mental ill health. It can also prevent children from learning positive social interactions, skills which they require on their return to the community. The Committee acknowledged too the potential benefit that short-term separation may have as a cooling off mechanism and that, on occasion, there may be legitimate grounds for longer periods of isolation where this is in the child’s best interests. It was concerned however that the data collected by Government on the use of separation is incomplete and hard to interpret, making it difficult to assess the extent of inappropriate use of the mechanism. A total of 30 per cent of children held in YOIs in 2017/2018 reported that they had spent one or more nights in the segregation unit, but this may not capture those episodes where children are locked in their own cells. In the same year, 64 per cent of children in STCs said they had been required to stay in their room for something they had done.
Solitary confinement is defined in international standards (in particular, the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela rules) as the: physical isolation of individuals who are held in their cells for twenty-two to twenty-four hours a day… Meaningful contact with other people is typically reduced to a minimum.
Where such isolation extends beyond 15 days, it is characterised as prolonged solitary confinement. The Government maintains that children in the United Kingdom are not subject to solitary confinement, but this has been contested by the National Preventive Mechanism and the United Nations Committee on the Right of the Child. The Committee heard further evidence to this effect from a range of sources, including the Howard League for Penal Reform and the Children’s Rights Alliance for England.
The Committee found that, while policy in relation to YOIs and STCs formally proscribes solitary confinement, in practice there was a tendency, on occasion, to allow ‘drift into situations of severe isolation which may be prolonged’. The Committee was made aware of cases in which children were isolated for up to 100 days. Although this de facto use of prolonged solitary confinement was not a deliberate policy decision, the report maintains that it is nonetheless within the power of policymakers to prevent it.
The Committee recognises that caring for children with complex needs in custody can pose challenges, but argues that systematic factors in the form of placement in inappropriate forms of institution, contribute ‘to the unacceptably high rates of restraint and separation’. The report notes, for example, that some children currently in custody would be better placed in healthcare facilities and that there is a shortage of placements in SCHs which currently provide for more vulnerable children. It falls short, however, of recommending the closure of YOIs and STCs despite the fact that a government commissioned review of youth review of youth justice, published in 2016, proposed replacing child prisons by a ‘network of secure schools’. In its response to the review, the government confirmed that it ‘agree[d] with this vision’. To date, while there are plans to pilot a single secure school, no YOIs or STCs have been closed.
Further evidence that children in YOIs and STCs ‘are not safe from harm’ comes from a report by the Independent Inquiry into Child Sexual Abuse (CSA), published in February 2019, on the sexual abuse of custodial institutions. The Inquiry confirms that there is limited evidence on the prevalence of CSA in custodial settings but has attempted, nonetheless, to draw together information from a variety of sources to ascertain the extent of such abuse. On this basis, the report concludes that, between January 2009 and 2017, there were an estimated 1070 alleged incidents of CSA involving 1109 children. The number of allegations appears to have increased in the recent period: between 2009 and 2015, there were never more than 114 incidents per year; in 2016 and 2017, however, the respective figures were 203 and 205. Most of the rise relates to alleged incidents in STCs. As shown in Table 8, over the whole period, YOIs and STCs account for a considerably higher number of allegations than SCHs.
Number of allegations of CSA by type of establishment (figures for SCHs do not include those establishments that only accommodate children in welfare grounds): 2009–2017.
The large majority of allegations had not been substantiated, and where they were, the incident was sometimes resolved by means of a warning to the staff member concerned; only nine incidents resulted in criminal charges and just four of these resulted in conviction. However, there was a significant difference between types of facility in how the allegations were responded to. In YOIs and STCs, in contrast to SCHs, investigations into CSA were frequently conducted without the involvement of a social worker within the institution, and the incident was rarely referred to the police, leading to concerns about ‘the rigour of the investigation and the expertise of the investigator’ in those institutions.
Moreover, the Inquiry considers that the figures for the number of allegations do not provide a full picture of the problem. There is no standardised mechanism for categorising incidents of CSA as having occurred in custody and agencies may not therefore have been able to retrieve all of the allegations referred to them. More importantly, perhaps, the Inquiry heard evidence of significant barriers, within custody, to disclosure, including the following:
Children not understanding what CSA is;
A lack of trust and/or support that prevents children disclosing;
A perception that allegations against staff will not be believed; and
A fear of repercussions if a disclosure is made.
As a consequence: while there are a multitude of reasons why a child might not disclose abuse, ‘these are enhanced to a greater extent if the child … is in the custodial arena’.
The report argues that supporting disclosure requires that custodial institutions provide an environment in which children feel safe. The culture in the majority of establishments does not currently afford that environment. Evidence provided to the Inquiry confirmed that perceptions of safety were generally much higher in smaller establishments, but this general tendency was compounded by the fact that in larger institutions, namely YOIs and STCs, there had been a recent ‘shocking decline in safety’ linked to instability, loss of staff and budget cuts. The report notes that: Throughout this investigation, the difference between the YOIs and STCs, and SCHs became increasingly obvious. SCHs were more focused on the interests of the child and adopted a less punitive approach. … The cultural barriers to disclosure were less apparent in SCHs. Such an environment creates a better climate in which a child potentially will feel safer and more able to disclose sexual abuse.
On the basis of evidence such as that considered by the Joint Committee and the Independent Inquiry, a group of NGOs launched a collaborative campaign in November 2018 to ‘End Child Imprisonment’ in England, calling specifically for the closure of YOIs and STCs. In April 2019, the campaign published a set of ‘minimum expectations’ that aim to provide a ‘positive framework’ for the care, in a non-prison environment, of the few children who may need to be deprived of their liberty. The article argues that deprivation of liberty should be a last resort for those children who pose a serious to themselves or others where there are no alternatives to mitigating that risk. Establishments which provide accommodation for children whose liberty has been restricted should have a manifest commitment to children’s rights, encompassing a childcare ethos to promote the child’s healthy development and prepare them for release at the earliest opportunity. Secure settings should be small, and homely, with a maximum capacity for 30 children and living units accommodating no more than 8 to 12 children ‘to ensure that each child is able to develop meaningful relationships with the children they live with and the professionals who care for them’. Wherever possible, children in detention should attend education and employment within the community. Secure provision should be closely integrated into mainstream services and aligned with safeguarding arrangements for children in the community. Carolyne Willow, Director of Article 39, one of the founding members of the campaign, said that it was ‘time for Ministers and opposition parties to treat this as an urgent matter of child protection’: Trend data for single separation and physical restrictive intervention are given in Youth Justice Statistics 2017/18, England and Wales, supplementary tables, published by the Youth Justice Board and Ministry of Justice in January 2019, and available at: https://www.gov.uk/government/statistics/youth-justice-statistics-2017-to-2018. Youth detention: solitary confinement and constraint, published by the Joint Committee on Human Rights, is available at: https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/994/994.pdf Review of the Youth Justice system in England and Wales, by Charlie Taylor, and the Government’s response, are published by the Ministry of Justice and are available at: https://www.gov.uk/government/publications/review-of-the-youth-justice-system Sexual abuse of children in custodial institutions: 2009-2017 is published by the Independent Inquiry into Child Sexual Abuse, and is available at: https://www.iicsa.org.uk/reports/cici Information about the End Child Imprisonment Campaign is available at: https://article39.org.uk/endchildimprisonment/. Principles and minimum expectations for children deprived of their liberty, and the End Child Imprisonment launch press release are available at: https://article39.org.uk/2019/04/18/united-call-for-the-immediate-closure-of-harmful-child-prisons-and-proposals-for-positive-care/.