Recent developments

Detention

The recent development which is good news is that since we wrote the 2nd edition of this book the number of boys and girls in prison (minors on remand or sentenced) in England and Wales has decreased from 2,742 boys and girls to 2021 in October 2011. This is a slight increase on the previous year but that appears to be the result of the large increase of young prisoners immediately after the riots in the summer of 2011.  Over the last three years, however, the number of children imprisoned in England and Wales has fallen by a third, an unexpected fall and the largest since the 1980s.

See Allen, R. (2011) Last Resort? Exploring the reduction in child imprisonment 2008-11. London, Prison Reform Trust, p. 3.

Less encouraging is the continued use of some forms of physical restraint in secure training centres and young offender institutions. A report by the Children’s Commissioner noted that the Ministry of Justice had published in 2010 a manual created by the National Offender Management Service to train staff in safe methods of restraining young people in secure training centres and in March 2011 had published a progress report on how the Government has implemented the recommendations from the Independent Review of Restraint but summarised criticism of slow progress as suggesting ‘distance between internationally agreed standards for the use of restraint and practice in England’.

See Office of the Children’s Commissioner (with User Voice) (2011) Young people’s views on restraint in the secure estate. London, Office of the Children’s Commissioner, pp. 7-9.

The Youth Rehabilitation Order (YRO)

These orders have been in force since April 2009 (see the ‘Criminal Justice and Immigration Act 2008’ section of this website). Providing the offence in question is punishable by custody and the seriousness threshold for custody has been satisfied (together with a persistence criterion for those aged less than 15), the court can impose a YRO with intensive supervision and surveillance or with fostering (CJIA 2008 s 1(1)(d) and s1(1)(i)  and Schedule 1; see also ss 2–7). YROs can also include curfew, exclusion, electronic monitoring and prohibited activity requirements.

13.1 Pre-punishment court orders pp 419-424

Anti-social behaviour orders – see http://rds.homeoffice.gov.uk/rds/antisocial1.html for information and the latest 2008 detailed statistics. The News Release gave the following summary:

"Number of ASBOs issued (in the period 1 April 1999 to 31 December 2008):

• In total 16,999 ASBOs have been issued over this period. (Table 1)
• The highest number of ASBOs issued in any calendar year was 4,122 in 2005. The number issued has declined in each subsequent year and was 2,027 in 2008 – down from 2,299 in 2007 . (Table 1).
• Eighty-six percent of ASBOs have been issued to males (14,566 ASBOs were issued to males – 2,329 to females). (Table 2).
• Since 2004 more ASBOs have been issued following conviction for a criminal offence than following an application. 64 percent of ASBOs issued in 2008 were following conviction for a criminal offence. (Table 3)."

Statistical Notice: Anti-Social Behaviour Order (ASBO) Statistics England and Wales 2008, 28 July 2010, Ministry of Justice)

13.1.1 Civil orders

As we noted on p 420, the Criminal Justice and Immigration Act s124 will require a court to consider making an individual support order in all cases where an ASBO is made in respect of a child or young person. Section 125 will extend the list of local authorities in England which may enter into a parenting contract or apply for a parenting order. However neither of these provisions is yet in force (at 15 December 2008).

13.1.2. Referral Orders pp 424-6

As we noted on p 426, the Criminal Justice and Immigration Act 2008 s35 will widen the use of referral orders but that provision is not yet in force (at 15 December 2008).

13.2.2 Community orders pp 429-431

An attendance Centre Order is now only available if the young person committed an offence before 30 Nov 2009.

“An Attendance Centre Order sentences a young person to attend an attendance centre.
The main purpose of attendance centres is to put a restriction on young offenders’ leisure time – they are open on Saturdays for two or three hours. Their programmes concentrate on group work to give attendees basic skills – literacy and numeracy, life skills, cookery, first aid and money management, for example - as well as encouraging attendees to make better use of leisure time.
The programme also includes victim awareness sessions, which consider the impact of offending on individuals and the community and how the young person might make amends; and sessions on drug and alcohol awareness, and sexual health matters.
The order can last up to 36 hours depending on the age of the offender and the seriousness of the offence.”

(http://www.yjb.gov.uk/en-gb/yjs/SentencesOrdersandAgreements/AttendanceCentreOrder/  (accessed 13.5.10)

This activity is now part of the Youth Rehabilitation Order (YRO) which includes an attendance centre requirement as one of the listed 18 requirements.

But note: section 60 of the Powers of Criminal Courts (Sentencing) Act 2000 c. 6 was not repealed in its entirety. Still in force as amended (from: November 30, 2009) is the following: 

(1) Where—
[...]
(b) a court would have power, but for section 89 below (restrictions on imprisonment of young offenders and defaulters), to commit a person aged under 21 to prison in default of payment of any sum of money or for failing to do or abstain from doing anything required to be done or left undone, or
(c) a court has power to commit a person aged at least 21 but under 25 to prison in default of payment of any sum of money,
the court may, if it has been notified by the Secretary of State that an attendance centre is available for the reception of persons of his description, order him to attend at such a centre, to be specified in the order, for such number

13.3.1. New Statutory Provisions 1998-2003 pp. 432-434

Detention and training order
The Youth Resettlement: A Framework for Action published by the YJB in 2006 notes the difficulties faced by young people on leaving custody. It notes that these young people have multiple needs:

• Almost half have been in local authority care at some point.

• 31% have mental health problems.

• 54% have been dependent on a substance.

• 40% of girls and 25% of boys reported suffering violence at home.

• More than a third of the young offender institution (YOI) population of compulsory school age had a reading age of seven or less.

The document calls for a more co-ordinated approach from youth offending teams (YOTs), government departments, the secure estate, and other organizations, to improve young people’s access to housing; education, training and employment; health and substance misuse services; family support; and financial advice. (See: http://www.yjb.gov.uk/Publications/Scripts/prodView.asp?idproduct=282&eP=)

13.3.3 Conditions in detention pp.437-443

On p441 we noted that the report of the review of the use of restraints would be delayed until June. In June government minister Beverley Hughes said that the report had been completed but would not be published until the autumn after the government had formulated its response. The report was eventually published on 15 December 2008:
Smallridge, P. and Williamson, A. (2008) Independent Review of Restraint in Juvenile Secure Settings @ www.justice.gov.uk/docs/restraint-review.pdf

For Young Offender Institutions the review summarizes its recommendations at p 9.

1. The Prison Service must provide staff with safe restraint techniques which are designed specifically for young people and which do not rely on pain-compliance. As a matter of priority it should reintroduce properly resourced and managed pilots of Adapted C&R into YOIs. [Paragraph 8.33]

2. The Government should remove the nose control technique in C&R. Its continued use is inconsistent with the removal of the identical nose distraction technique in PCC. [8.7]

3. Batons should not be routinely deployed in the young person's estate. [8.39]

4. The Prison Service should ensure that it has adequate arrangements in place for regular central oversight and analysis of the use of force and reporting of injuries in YOIs. [8.21]

5. The Prison Service should adopt Therapeutic Crisis Intervention or a similar effective behaviour management approach in all YOIs. [13.14]

6. Staff responsible for training and co-ordinating use of force in YOIs should be brought within the management responsibilities of the Safeguard Manager. [8.38]

7. The Prison Service should make an enhanced Juvenile Awareness Staff Programme mandatory for all those working with young people. [17.11]

8. YOIs should be designated a specialist system within the Prison Service with their management a discrete specialism. Career opportunities should be created for managers and staff which reward their expertise in working with young people. [13.34]

However, the authors concluded that "a degree of pain compliance may be necessary in exceptional circumstances" in secure training centres (at p 7).
The government's response to the Review can be found at: www.justice.gov.uk/docs/govt-response-restraint-review.pdf
The Government's Response to the Report by Peter Smallridge and Andrew Williamson of a Review of the Use of Restraint in Juvenile Secure Settings,
Presented to Parliament by the Lord Chancellor and Secretary of State for Justice and the Secretary of State for Children, Schools and Families by Command of Her Majesty December 2008, Cm 7501, London: The Stationery Office.

The government accepts or partially accepts most recommendations, notably that the Government should permanently remove nose distraction and the double basket hold from the techniques currently used' in Secure Training Centres but, in relation to YOIs the response is that it 'is looking to replace the nose control technique with a safer alternative within the next six months' and the result of acceptance of the recommendations, however, is that privately run units can continue to use pain-inflicting techniques to restrain young offenders in their care 'in exceptional circumstances' and this has led to criticism.

Suicides in US prisons

The US Department of Justice has recently published its report on the suicide of juveniles in confinement. This bulletin draws on data from the first national survey of suicides of youth in confinement, which was sponsored by OJJDP, to review juvenile suicides that occurred in confinement between 1995 and 1999. It describes the demographic characteristics and social history of the victims and examines the characteristics of the facilities in which the suicides occurred. A more comprehensive account of the survey and its findings may be found in the online report "Juvenile Suicide in Confinement: A National Survey. "Characteristics of Juvenile Suicide in Confinement" (NCJ 214434) is available at  www.ojjdp.ncjrs.gov/publications/PubAbstract.asp?pubi=235973.

R (M) v The Chief Magistrate, 16th February 2010 [ CO/1789/2010 ]

The legal team working at the Howard league for Penal reform successfully argued in this recent case that due process of law and good practice in any disciplinary proceeding or appeals means that the person concerned should know what is the case against them.  The child, known as M, had been awarded extra days by an independent adjudicator. He had had no legal advice and was not legally represented. The judgment highlights the need for a proactive approach to legal representation for young people facing adjudications and, as a consequence, the prison service will have to consider possible changes.

In this case the judge, Collins, J, also made the following point:  ‘The welfare of the child is an important and indeed fundamental consideration in determining how a child who has committed offences should be dealt with…a young person’s welfare is something that has to be properly taken into account and, indeed, that is clear from section 37 of the 1998 Act’ (at para 7).  

See:
http://www.howardleague.org/fileadmin/howard_league/user/pdf/Legal/R__M__v_Chief_Magistrate_160210.pdf
and also 
http://www.howardleague.org/fileadmin/howard_league/user/pdf/Legal/Letter_to_Michael_Spurr.pdf

Education in detention: Ofsted (2010) Transition through detention and custody

Ofsted has recently drawn attention to the variable standards of support when children and young people move into and out of custody. The report highlights how poor initial assessment of learning needs and insufficient preparation for independent living leaves children and young people ill-equipped for outside life. See:  http://www.ofsted.gov.uk/Ofsted-home/Publications-and-research/Browse-all-by/Documents-by-type/Thematic-reports/Transition-through-detention-and-custody

13.4 The role of rights for young offenders pp. 443-6

The Independent recently drew attention to the ongoing case of Re P

“The European Court of Human Rights (ECHR) will this week hear claims from the British government that locking-up an emotionally disturbed young man and failing to prevent him from inflicting terrible self-harm does not merit an independent, public inquiry.
The Howard League for Penal Reform has taken the case of P to Europe after British courts ruled there was no need to hold an inquiry because, while the risk to P's life was real, it was not immediate.
P was taken into care after his mother injected him with heroin when he was 11 months old. By 18, he was using drugs, was in and out of prison and hurting himself. During the 15 months he spent on remand at Feltham Young Offenders Institution, P needed hospital treatment nearly 100 times for self-inflicted injuries using screws, razors and broken glass he claims some officers provided. He inserted staples into his face; put sharp objects into his penis; forced pieces of glass into his urethra; rubbed faeces into wounds; and severed the tendons in his feet.”

(Lakhani, N. ‘Disturbing case of young offender goes to European court’ The Independent 12 Sept 2010 accessed at http://www.independent.co.uk/news/uk/home-news/disturbing-case-of-young-offender-goes-to-european-court-2077183.html on 1.10.2010).