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We will not get the new youth justice system we need

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About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

Image © Connor Tarter

This month, the government announced their launch of a review into the youth justice system. This follows David Cameron’s recent promises of a ‘smarter state’, whereby services can be improved by using a whole government approach rather than making a series of small interventions to the current youth justice system. The creation of this review follows a report published in 2014 advocating for significant changes to be made to the youth justice system, including making lawyers practicing within the youth court undergo specialist training.

It appears that one of the key purposes of the new review is to implement these suggested ‘small interventions’ on a wider scale. Although the Justice Secretary, Michael Gove, has welcomed the ‘significant reduction in the number of young people entering the youth justice system’, he has argued reoffending still poses a large problem. Gove’s concern is well founded; current statistics show that 67% of young people leaving custody reoffend within one year.

The current youth justice system

The eventual creation of the youth justice system was set into motion in the 19th century, when Pankhurst Prison on the Isle of Wight became the first prison to exclusively accommodate juveniles. In 1847, the Juvenile Offenders Act was created with the purpose of distinguishing between adults and children in criminal law. It introduced sentencing in the Magistrates Court for under-14s committing lesser offences. After this, more legislation was created establishing a separate criminal justice system for children. Of course, the full extent of this legislation cannot be discussed within one article, but it is important to focus on the key aspects in order to understand the formation of the youth justice system.

During the course of the 1990s, the youth justice system was gradually formed through legislation. The Criminal Justice Act 1991 replaced juvenile courts with youth courts, allowing 17 year olds and under to be tried. Three years later, the Criminal Justice and Public Order Act 1994 increased the range of offences available to be tried in the youth court. It also gave judges the option of issuing new custodial sentences for repeat young offenders.

The Crime and Disorder Act 1998, a key piece of legislation in the youth justice system’s creation, expressly stated that the purpose of such legislation was to prevent offending. Further, it established the Youth Justice Board, a non-departmental body created for the purpose of overseeing the youth justice system for England and Wales. In 2011, the government withdrew a clause contained in the Public Bodies Bill which would have dissolved the Youth Justice Board, after significant criticism was received across parliament and the general public.

Sadly, it comes as little surprise that children within the youth justice system are predominantly from low income and disadvantaged families. Around half of all young people in custody have been in the care system during their life, and 60% have significant communication, speech and language difficulties. Barnardos, a leading children’s charity, state that the current youth justice system is ineffective and often unnecessarily expensive to the taxpayer, given the high rate of reoffending rife throughout the youth justice system.

Furthermore, support for young people in custody with mental health difficulties is limited. In 2013, the Ministry of Justice reported a 21% increase in the number of young people in custody self-harming. To add to this, three children died in custody between 2011 and 2012. Charities such as Prison Reform Trust (PRT) have expressed serious concern at this, and claim that agencies working within the youth justice system are not working together enough to identify young persons’ mental abilities and needs at an early stage. Juliet Lyon, the chair of PRT, claims that if services worked together more it would have a ‘major impact on improving health, reducing youth unemployment and tackling youth crime’.

From these statistics, it is clear that the youth justice system currently faces significant problems. Despite the damning statistics mentioned above, the head of the Youth Justice Board (YJB) has said there is increasing recognition within the youth justice system that young people with learning difficulties or mental health problems require additional support, and classes it as the YJB’s ‘absolute priority’. Although this may be true, it is concerning that nothing has progressed in the workings of the youth justice system since these comments were made in 2013. It is now necessary to look at what the new review will attempt to rectify, and whether it is likely to have a positive or negative impact on youth justice.

The aims of the review

The review into the youth justice system will be led by the previous chief executive of the National College for Teaching and Leadership, Charlie Taylor, and is due to be published during Summer 2016. In order to make further comment on the current state of youth justice and what improvements could be made following the report’s publishing, it is important to examine what this review aims to achieve.

The governmental review has been commissioned to examine the efficiency and effectiveness of the youth justice system in preventing offending, and aims to identify effective practice and make recommendations for improvement. Its broad aims consist of examining;

  1. The nature and characteristics of offending by young persons (10-17 year olds) and current preventative arrangements;
  2. How effectively the current system and its partners operate in responding to youth offending, preventing reoffending, protecting the public and repairing harm to victims and communities and rehabilitating young offenders; and
  3. Whether the current leadership, governance and effectiveness of the youth justice system is effective in preventing offending and reoffending, and whether it is good value for money.

In particular, the terms of reference will focus on the actions and responsibilities of local authorities, schools (and other education providers), physical and mental health services, youth offending teams, probation services, Police and Crime Commissioners (PCCs) and the police in dealing with youth justice. It will also examine the responses of police, prosecutors and youth offending teams to crime committed by young offenders. This includes sanctions and support received outside of court, and whether these are used effectively.

The report also aims to investigate the delivery models for detaining young people remanded or sentenced to custody and for supervision and rehabilitation of young offenders within their communities. Finally, the report will address the leadership and governance of the youth justice system. This includes the roles and responsibilities of Government departments, the Youth Justice Board (YJB) and local authorities. In particular, the review will examine the arrangements in place to monitor and improve the system’s performance and cost effectiveness.

Issues with the review

Interestingly, the review’s terms of reference specifically exclude examining the age of criminal responsibility, the way young people are dealt with in criminal courts and the current youth sentencing framework. The exclusion of these three important issues from the report has come as a shock to some, particularly so to Rob Allen, the previous chair of the YJB. Allen argues that meaningful assessment of key youth justice agents' performance cannot be made without considering the legal framework within which they operate, and the effectiveness of the sentences imposed on young offenders. England and Wales have the lowest age of criminal culpability within the EU at age 10, and the highest rate of child imprisonment within Western Europe. Under the age of 10 in English law, the defence of doli incapax applies; that is, a child under 10 is too young to understand right from wrong, and thus cannot be held responsible for their actions.

The topic of criminal culpability is one which attracts high controversy, with the United Nations (UN) repeatedly asking for the age of criminality to be increased in the UK. Under ‘the Beijing Rules’ established by the UN in 1985, the age of criminal culpability ‘shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.’ Furthermore, the Beijing rules also state that countries must consider whether a child could live up to the moral and psychological components of criminal responsibility.

The UN’s recommendations on the age of criminal culpability appear to have been taken into account by many other European countries; Belgium sees people as criminally culpable at the much higher age of 18, whereas Italy and Spain use the ages of 14 and 16 respectively. In connection with this, a report by the Howard League (HL) appears to show that low ages of criminal responsibility in EU countries correlate with the number of young offenders in prisons. Within the HL survey, the five legal systems with the lowest ages of criminal culpability (England and Wales, Scotland, Turkey, Northern Ireland and the Netherlands) have the highest juvenile prison population; for example, 5% of all prisoners in Northern Ireland are young offenders between the ages of 10 and 18. At the time of the HL report, there were 3,000 young offenders within UK prisons, whereas there were only 500 young offenders in Italian prisons.

Seemingly in agreement with the UN Beijing rules, Allen has also said that the age of culpability should be raised to 14; this would then divert would-be young offenders from crime through intensive schemes, such as fostering, which focus on rehabilitation rather than imprisonment. It appears the view that the UK lags behind the rest of Europe in youth crime is one which is widely held; for example, UNICEF have repeatedly advised that the UK should raise the age of criminal responsibility ‘to be in line with the rest of Europe’. Similarly, a report by Royal Holloway, University of London found that a referral order, a non-custodial sentence which involves a young offender agreeing a contract with a youth court panel, does little in deterring them from reoffending. Activities written into such contracts included community work and writing apology letters, but the study found that these children often did not understand the legal process and could be overwhelmed by the referral order’s requirements, such as multiple meetings and appointments which did not require parental supervision.

It appears clear from the above information that imprisonment of young offenders is no longer, and may never have been, the way forward in English law. Often young offenders have mental, physical and socio-economic needs that are ignored by the penal system. It is thus unsurprising that under our current youth justice system, repeat offending often becomes a well-trodden routine throughout a young offender’s life. The UK would do well to address the long-held concerns of the UN, given the high correlation between the minimum age of criminal responsibility throughout Europe and the number of young offenders within prisons. For these reasons, alongside the public support garnered for raising the age of culpability, it would appear the state of youth justice within the UK is not fit for purpose.


Given the government’s concern over recent reoffending statistics within the youth justice system, it seems extremely odd to ignore sentencing factors within Taylor’s upcoming review. This along with the UN’s serious concerns regarding the age of criminal culpability make it seem highly bizarre that the age of criminal culpability is not being considered within this allegedly ‘extensive review’. However, it may be that concerns regarding the minimum age of criminal responsibility have been omitted purposefully in an attempt to abolish the YJB. This follows the coalition government’s failed plan to abolish the Board in 2011, in anticipation of its abolition being defeated within the House of Lords.

Without any plans thus far to look at the sentencing structure within the youth justice system, it is unlikely the system will receive the overhaul it so badly needs in order to rehabilitate young offenders. As has been addressed above, many young offenders come from low-income backgrounds and have specific mental and physical needs; it is thus about time law-makers realised this and began a full reform of the youth justice system to help instead of hinder young offenders’ progress. By doing so, the rate of reoffending amongst young offenders would likely decrease. Unless the government once again make a U-turn on the matter by widening the scope of the debate to include the age of culpability and alternatives to penal punishment, the review and subsequent reform of the youth justice system appears futile.

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Tagged: Criminal Law, Justice

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