AYJ Comment: New reports demonstrate welcome scrutiny but missed opportunities for youth justice reform

The Justice Select Committee this week published its inquiry report Children and Young People in Custody (part 2): The Youth Secure Estate and Resettlement, alongside the Government Response to part 1 of the inquiry: Entry into the youth justice system. 

The Justice Select Committee inquiry took a welcome in depth and broad approach to examining and understanding the youth justice system. We welcomed the opportunity to submit written evidence to the inquiry and were delighted that our Director, Pippa Goodfellow, was invited to give oral evidence alongside a number of AYJ members. While the inquiry and their reports provide welcome scrutiny, we are concerned that their recommendations aren’t sufficiently strong and disappointed by the government’s response.

We are glad to see the government’s intention set out in its response to ‘Part 1’ of the inquiry to improve provision of diversion. However, the evidence gathered by the Committee showed a clear need for specific funding for YOTs to carry out this crucial work, and the government has confirmed it has no plans to review this. 

The government has also neglected to address concerns around both the youngest and oldest children in the youth justice system. In England and Wales the minimum age of criminal responsibility of just 10 years old is unacceptably low and inconsistent with international standards, with both the UN Committee on the Rights of the Child and UN Committee Against Torture calling for it to be raised. Yet once again, the government has stated it has no plans to review or change it. The government’s response to the Justice Select Committee’s recommendation for a review of the age of criminal responsibility is perhaps unsurprising given the Minister’s previous remarks, but is a fundamentally missed opportunity from this inquiry and an extremely disappointing outcome. The ‘belief’ that the government holds as to the criminal culpability of children as young as ten is completely out of kilter with the established evidence base on child development and inconsistent with other policies. 

Children who turn 18 between committing and being convicted of an offence are tried as adults, subject to more punitive adult sentencing and the adult criminal record regime. It is unfair and arbitrary that long delays to court cases, exacerbated by COVID-19, will likely leave more young people facing harsher outcomes with potentially lifelong impacts. We are disappointed the government has rejected the Committee’s recommendation that young people who turn 18 be dealt with in the youth justice system – a recommendation which has widespread support. We urge the government to urgently reconsider, taking into account the profound long-term impact the pandemic will have on the justice system and the children caught up in it. 

We are particularly disappointed by the weak focus and recommendations in ‘part 2’ on addressing racial disparities in the youth justice system, which is at its worst for children in custody. While we agree with the Committee that recommendations from the Lammy review must be implemented, it is simply not good enough that four years after the review was published in 2017 this has not yet happened. Racial disparity has worsened since 2017 and Black, Asian and Ethnic Minority children in custody routinely report worse treatment.

Furthermore, the report disappointingly makes no recommendations around the needs and experiences of girls, who are often sidelined due to their smaller numbers and have once again been entirely overlooked. 

Also this week HM Inspectorate of Prisons (HMIP) published a review, What happens to prisoners in a pandemic?, exploring the effects of lockdown on children and adults in the secure estate. 

HMIP’s thematic review shows the devastating toll that restrictions in custody have taken on children. From the psychological impact of spending so much time locked up alone, to the paranoia and fear as verbal abuse between cells increased, the long-term impact on children’s wellbeing is made clear by this report and urgently needs addressing.  

Given this distressing insight into life in custody for children, we are all the more concerned about the lack of urgency from government and indeed the Justice Select Committee in their publications this week to address concerns about the secure estate and put an end to the imprisonment of children in penal establishments.

The second report of the Justice Committee’s inquiry is a missed opportunity to hold the government to account for its slow action to reform the secure estate. We are disappointed to see the Committee’s focus on secure schools as a primary solution to the ongoing issues and harms experienced by children in custody. The first secure school is set to open in 2022, five years after the government’s commitment to develop two secure school pilots. The second pilot is nowhere to be seen, and the first will, contrary to Charlie Taylor’s review recommendation, be on the site previously used as a Secure Training Centre with an extremely problematic history.

We are yet to see whether creating a fourth type of secure establishment for children will improve experiences and outcomes for children, but we cannot afford to sit by and wait while children continue to be subjected to awful conditions in Young Offender Institutions and Secure Training Centres. The Committee’s report makes almost no mention of Secure Children’s Homes, the most appropriate yet the least utilised form of secure provision for children currently available. Rather than directing resources towards yet another form of detention for children, the government should be seeking to significantly reduce the numbers of children deprived of their liberty by ensuring custody is a genuine last resort and to place the small number of children who need to be placed in secure provision in environments where they are safe and their needs are met.

Since the start of lockdown over a third of children in custody have been on remand. Most children who are remanded to custody do not go on to receive a custodial sentence – a third are acquitted altogether. Yet some children are being held unsentenced in the harrowing conditions described by HMIP for over a year. It is unacceptable that urgent action has not been taken by this government to significantly reduce the number of children on custodial remand during this time. We welcome the government’s long overdue review of remand for children and the upcoming introduction of legislation aiming to increase the legal threshold for remand. We await more details of this, and urge the government to take a range of measures to address this problem, including strengthened legislative measures in the upcoming Sentencing Bill, as outlined in AYJ’s proposals to reduce the number of children remanded to custody.  

The Committee should have gone further with recommendations to press the government to close child prisons and address racial injustice as matters of the utmost urgency. Moreover, they should be deeply concerned about the projected rise in numbers of children in custody and further entrenchment of racial disparities – both anticipated implications of the upcoming Sentencing Bill.