House of Commons - Justice

Select Committee on Justice Fifth Report

7 Vulnerable People

176. The consultation paper Making Sentencing Clearer identified a number of groups of offenders for whom the Government believe community sentencing is more appropriate than custody, including vulnerable women offenders, vulnerable young offenders and some offenders with mental health needs.[273] The paper also suggested that more should be done to tackle prolific offenders, including drug users.

177. The overuse of custody for particular vulnerable groups was a central concern of many witnesses. There was overwhelming consensus that, despite the 2003 Act, there continue to be many women, young people and people with mental health and substance misuse problems in prison, whose offending behaviour and other specialised needs could be dealt with both more effectively and more appropriately in the community. We received little evidence on sentencing drug users so the needs of drug users as a vulnerable group will not be specifically addressed in this report.

178. Categories of offenders such as women, young people and people in need of mental health or drug treatment have been identified as particularly vulnerable in prison. Clearly not all offenders in particular categories can be considered vulnerable or automatically unsuitable for custody and we recognise that there will be offenders who, because of the gravity of their crime and the dangers they pose, cannot be dealt with safely in the community. However, it is generally agreed that more emphasis must be placed on ensuring that those vulnerable people who do not fall into this group are not sentenced to custody for want of practical community alternatives.

Women

BACKGROUND

179. The Government first signalled its intention to develop a distinct response to women's offending in 2000, when it published the Strategy for Women Offenders.[274] Responses to consultation on this strategy highlighted the need for a cross-governmental approach to reducing women's offending and to developing appropriate alternatives to custodial sentences for women.[275] The availability of such community provision is essential for implementation of the generic community sentence under the 2003 Act and, in recognition of this, in March 2004 the Home Office launched a three year Women's Offending Reduction Programme, coupled with a cross-departmental action plan.[276]

180. The main priorities of the action plan included:

making community interventions and programmes more appropriate and accessible for women;
meeting mental health needs;
dealing with substance abuse; and
building up the evidence base.

181. The Together Women Programme was launched in March 2005 providing £9.15m investment in multi-agency community demonstration projects for women offenders. Five one-stop-shop projects were subsequently funded in two regions, two in the North West and three in Yorkshire and Humberside.

182. One year later, Baroness Corston was commissioned by the Home Office to examine what could be done to avoid women with vulnerabilities ending up in prison. Her report, published in March 2007, identified three categories of vulnerabilities:

domestic circumstances and problems such as domestic violence, child-care issues, being a single-parent;
personal circumstances such as mental illness, low self-esteem, eating disorders, substance misuse
socio-economic factors such as poverty, isolation and unemployment.[277]

183. The Corston Report made 43 recommendations, the key themes of which included:

improvements to high level governance and cross-departmental working for women offenders and those at risk of offending, including the establishment of an Inter-Ministerial Group to govern a new Commission for women who offend or are at risk of offending;
the reservation of custodial sentences and remand for serious and violent women offenders and the use of small local custodial centres for such offenders within 10 years;
community sentences used as the norm and the development of a wider network of one-stop-shop community provision for women offenders and those at risk of offending; and
improvements in health services and support for women offenders.

184. The Government's response, which accepted the vast majority of the recommendations and set out how these would be addressed, was published 9 months later.[278] At the same time the Government announced that Maria Eagle MP would become Ministerial Champion for Women and Criminal Justice. NOMS have since published the National Service Framework for women offenders and new guidance on working with women offenders to take this work forward.[279] On 24 June 2008 the Ministry of Justice published a progress report detailing how their work on Baroness Corston's recommendations had moved forward.[280]

185. A further driver for enhancing the effectiveness of provision for women offenders is the new gender equality duty introduced under the Equality Act 2006, which came into force in April 2007. This places an obligation on public authorities, including Prison and Probation Services, to assess the impact of current and proposed policies and practices on gender equality. Judicial decision-making is not covered by the duty.[281]

IS SENTENCING AND SUBSEQUENT PROVISION FOR WOMEN OFFENDERS EFFECTIVE?

186. Although women represent only about 6% of the total prison population at any one time, serious concerns were raised in the evidence we received regarding the sustained growth in the use of imprisonment for women. Between 1995 and 2005 the female prison population increased by 126%.[282] Concern centred on the overuse of custody for women convicted of non-violent offences. 31% of women in prison in January 2007 had been imprisoned for drug offences, 12% for theft and handling and 7% for fraud or forgery.[283] However, these snapshot figures do not reveal the full extent of imprisonment for non-violent crime. In 2005, the latest year for which figures are available, 31% of women sent to custody were sentenced for theft and handling of stolen goods. Furthermore, over a third of women in prison have no previous convictions, double the equivalent proportion for men.[284] As outlined in Chapter 4, women are also more likely to receive short custodial sentences. Nearly two-thirds of all of the women who were sentenced to custody in 2005 received sentences of six months or less in 2005.[285] Gelsthorpe, Sharpe and Roberts recently found that women are particularly likely to have problems related to accommodation and emotional well-being, and high levels of drug abuse according to the offender assessment OASys.[286] In the decade since 1996, the number of women starting community sentences has risen by 22 per cent, from 16,136 in 1996 to 19,741 in 2006. However, between 2005 and 2006, there was a 6 per cent decline in the number of women starting community sentences.[287] The Centre for Crime and Justice Studies attribute this to the introduction of the Suspended Sentence Order.[288]

187. The higher use of short custodial sentences and expansion in the use of custody for non-violent offences may, in part, be explained by the quality, availability and effectiveness of community sentences for women offenders. Representatives of both the Magistracy and the Criminal Bar were of the opinion that existing community sentences are not effective in addressing women's offending or their wider needs. The magistrate John Thornhill told us that: "more constructive earlier intervention than a fine or fixed penalty notice… would deal with some of the causes of offending so that a prison sentence doesn't become necessary at some later point".[289] Furthermore, the Criminal Bar Association observed that women are frequently sent to prison for low-level offending after other options have failed.[290]

188. These views were supported by Dr Loraine Gelsthorpe who expressed her concern that the introduction of a number of purposes of sentencing under the 2003 Act risked "confusing "needs" and "deeds" [and]… perhaps gives a green light to up-tariffing women on the sentencing ladder so that their needs can be addressed via different sentencing options".[291] Hence, the absence of appropriate community sentencing options that address women's needs can contribute to an increase in the use of imprisonment. However, as we discussed in Chapter 4, short prison sentences are even less effective at addressing such needs. Dr Gelsthorpe further suggested that the paucity of provision can result in a higher frequency of breaches—for example, due to the distance women have to travel to complete punishments in the community—and in so doing further push up the numbers of women in custody.[292]

189. Action for Prisoners' Families drew our attention to the unavoidable consequence of imprisonment in punishing the family as well as the offender. Whilst we acknowledge that it is also important to consider the effects of imprisoning fathers, we heard that: "the impact on children is particularly acute when a mother is imprisoned...each year, the living arrangements of around 11,000 children are disrupted by the imprisonment of a mother, with only 5% remaining in their own home during sentence".[293] They also reminded us that the children of prisoners are more likely to end up in the criminal justice system themselves.[294]

190. The Criminal Bar Association advocated the avoidance of custodial sentences for women with young children where possible, suggesting that: "the responsibility for young children should be a good reason for considering every other option before prison regardless of sex and this is often going to be a relevant consideration for women rather than men".[295] Sentencers Judge Hall and John Thornhill shared the view that offending by women with children should, where possible, be dealt with in the community, advocating the use of a Suspended Sentence Order as an alternative to imprisonment. They suggested that a gap exists in existing sentencing options, which should allow judges to sentence proportionately to the offence and to take account of the needs of women with children.[296]

191. JUSTICE, Nacro, Action for Prisoners' Families and the Fawcett Society all shared the belief that many women now in custody could be given community sentences or serve sentences in alternative accommodation that focused more effectively on the causes of offending behaviour.[297] The new economics foundation (nef) cited the example of the 218 Centre in Glasgow, which opened in 2004 specifically to "provide an effective, community based alternative to sending women to prison for short periods".[298] The Centre, funded by the Scottish Executive, works with women to identify the root cause of their offending and provides the necessary support to help them address their offending behaviour. It includes a detoxification facility, residential and day programmes, and can also help offenders reach health, social work and housing services.[299] New Economics Foundation (nef) highlighted the Asha Centre in Worcester as an alternative model.[300] This provides support to disadvantaged women, including women offenders. It offers a range of courses and activities to build confidence, improve skills and facilitates access to other services and organisations.

192. Despite Government efforts to improve the availability of community provision for women, the evidence we heard suggested that it continues to be patchy, and many probation areas are unable to provide community sentences sufficiently tailored to the needs of women offenders. Projects similar to Centre 218 do exist in England and Wales, including the five demonstrator projects established under the Together Women Programme. We support the views expressed by Baroness Corston, that there is a need for more alternative sanctions and disposals which are gender-specific and in which sentencers have confidence. We recommend the extension of a larger network of community centres. In particular, we support services set up explicitly to consider the needs of women with children and to develop specific measures to support women and their families.

193. Recent research commissioned by the Fawcett Society argues that, in the absence of funding to establish projects like the Together Women Programme demonstrators in other regions, there is a need to look beyond widespread statutory funded provision for more realistic options, and proposes that women offenders could benefit from voluntary sector community-based services that exist for women in general, with the caveat that such provision would need to be securely funded to support this wider work.[301] According to the report:

"…there is sufficient voluntary sector provision to encourage exploration of what existing initiatives and projects might be available within each NOMS region, and to examine how they might not only supplement mainstream statutory provision, but be incorporated into core services for women offenders".[302]

194. We recommend that NOMS conduct a full regional audit of the provision of services and examine the current scale and nature of provision in comparison to the scale and nature of need. Where gaps are identified these should be built as a matter of urgency into programmes commissioning womens services.

195. Sentencers must also be willing to use these options where they exist. John Thornhill told us that magistrates would welcome more widespread provision: "if there were opportunities for us to tackle [women's offending] in different ways, again the magistrates would take them… It would be nice to see more programmes available for vulnerable females in the courts".[303]

196. Judge Hall acknowledged his limited experience of sentencing women but suggested that the Probation Service could be slow to recommend community sentences.[304] This is most likely to be a further reflection of the lack of appropriate community provision which probation officers are able to recommend to sentencers. David Hanson accepted that the Government must do more for women on short sentences pointing to the "need for a wider level of community-based sentences, particularly focused on women, for those people who are in the under 12-month category, because the time in prison is not sufficient to help with some of the problems. The sentence itself can, in my view, help prevent re-offending in a much stronger way and we are certainly going to be looking at that in much more detail".[305]

197. The Government has reviewed the future of the women's prison estate and established a working group to consider the merits of small custodial units, to house 20-30 offenders, which Baroness Corston recommended. The working group concluded that there were a number of weaknesses with proposals to introduce these units including their ability to cater for the variety of needs of women who could not be safely dealt with in the community.[306] The Government is, however, committed to ensuring that the existing custodial estate better meets these needs. The Government is proposing to test the principle of small local custodial units with one 77 place wing at HMP Bronzefield, sub-divided into three blocks.[307] Limited additional funding has been committed to make such changes. Furthermore, unlike its commitment to extend the capacity of the male prison estate, the Government has suggested that savings would need to take place in other areas to finance improvements to the women's custodial estate. Its view is: "there is currently no additional funding available for implementation of these proposals so part of the work of the projects to consider their feasibility will need to include an assessment of the likely investment that would be needed and whether the benefits of doing so would justify the disinvestment that would be required in other areas".[308]The working group state that there are insufficient resources to invest in changes to the women's custodial estate until improved community provision has reduced the women's prison population and hence freed up resources.

198. The Prison Reform Trust and Anne Owers raised concerns about the Government's commitment to Baroness Corston's recommendations. Anne Owers commented on the original Government response that: "it is very disappointing that it was possible the day after Lord Carter's report [on prisons]to allocate whatever significant resources there are to the prison building programme but nine months after the Corston Report no money is forthcoming".[309] Following the publication of the progress statement, Juliet Lyon of the Prison Reform Trust said: "it's clear that this government is so busy planning how to waste billions of public money on so-called 'titan' prisons that it cannot find the time or money to create a decent, effective justice system for women".[310]

199. The failure to invest in community provision for women is a central factor in driving the sustained increases in the number of women sentenced to custody. We welcome the Government's acceptance of most of the recommendations of the Corston Report, as well as the recent NOMS National Service Framework for Women Offenders and the Offender Management Guide to Working with Women Offenders. We are also encouraged that the Secretary of State for Justice emphasised his commitment to reducing the number of women in custody. However, we share the disappointment expressed to us by the Chief Inspector of Prisons and the Director of the Prison Reform Trust that sufficient resources have not been made available to deliver appropriate community provision for women and their regret that such provision for women has been overshadowed by the drive to expand prison places.

200. We invite the Government to reconsider the recommendation to establish a Commission for Women Offenders which would provide a stronger driver to the implementation and resourcing of Corston's reforms. We are convinced that women's offending will only be reduced by urgent investment in a network of community provision designed for women offenders. In addition, we believe that the small local custodial units with 20-30 places suggested by Baroness Corston, should be genuinely tested through a pilot unit in an area where there is currently a gap in provision for women, such as Wales or the South West. This would allow for evaluation of whether the working groups concerns are well founded or can be dealt with.

Mental health

BACKGROUND

201. Levels of mental illness are high amongst all offenders. According to national assessment data from OASys (the Offender Assessment System) 45% of offenders can be identified as having a mental health need, measured in terms of 'emotional well-being'.[311] The incidence amongst prisoners is even higher. Prisoners are three times more likely to have a mental health problem than the general population.[312] For women prisoners the incidence rises to five times those in the general population.[313] Around 72% of male and 70% of female prisoners have two or more mental health disorders[314] and approximately 5,000 have serious and enduring mental illnesses.[315] Furthermore, there were 92 apparent self-inflicted deaths by prisoners in 2007, representing a reversal of the trend in which such deaths fell significantly over the previous three years. [316]

GOVERNMENT APPROACH

202. The Government has placed increasing emphasis on ensuring that mainstream health provision is available for offenders. Health and Offender Partnerships (HOPS) were introduced in 2004 as joint ventures between the Department of Health and NOMS. These aim to improve health, address health inequalities and reduce crime by maximising the opportunities provided by better integration of health, social care and criminal justice systems. The Department of Health subsequently issued guidance to improve mental health provision for offenders throughout the criminal justice process, however, this focused predominantly on care for prisoners.[317] Responsibility for prison health care was transferred from the Prison Service to the National Health Service in April 2006, leading to the widespread introduction of mental health in-reach teams. By October 2007, 80% of prisons had such a team.[318]

203. The 2003 Act enabled a mental health treatment requirement to be attached to a Community Order for up to 36 months with the offenders' consent. This requirement is deemed suitable in particular cases where the mental illness is serious enough to require community treatment but not too serious to warrant a hospital admission.

IS SENTENCING AND SUBSEQUENT PROVISION FOR THOSE WITH MENTAL HEALTH PROBLEMS EFFECTIVE?

Court based schemes

204. Diversion and criminal justice liaison schemes aim to divert offenders with mental health problems from the criminal justice system (via police stations and courts) and into treatment in NHS mental health facilities. Nacro defined diversion as:

"A process of decision-making, which results in offenders with mental health issues being diverted away from the criminal justice system to the health and social care sectors. Diversion may occur at any stage of the criminal justice process: before arrest, after proceedings have been initiated, in place of prosecution, or when a case is being considered by the courts. If a prosecution is initiated, the Crown Prosecution Service (CPS) might decide to discontinue it, or, if the offender is prosecuted because prosecution is appropriate, the courts might opt for a relevant disposal under the Mental Health Act 1983, such as a hospital order, in place of a criminal justice disposal, such as imprisonment".[319]

205. Such services can be effective in diverting people with severe mental health problems from the criminal justice system into health and social care. However, Nacro and the Sainsbury Centre for Mental Health noted research which demonstrated wide-ranging variation in the funding, organisation and geographical distribution of such schemes.[320] Where schemes do exist, their effectiveness can be hindered by a lack of staffing and resources to meet needs, for example, to provide 24 hour cover or to fund a medical practitioner with the power to admit patients to beds.[321] Evidence from Her Majesty's Inspector of Prisons further suggests that NHS commissioners have limited knowledge of court diversion schemes.[322]

206. Paul Cavadino, Chief Executive of Nacro, explained that the funding of diversion and liaison schemes by health authorities is discretionary whereas he "would like to see a requirement in vulnerable areas to provide those services and also to provide a range of back-up services".[323] Health Authorities should not have a choice as to whether or not they fund diversion and liaison schemes with criminal justice agencies. Accordingly we recommend that there should be a statutory requirement to provide funding for these schemes. The Ministry of Justice should work with the Department of Health to promote knowledge and understanding of diversion and liaison schemes amongst NHS commissioners.

207. The Government has repeatedly advocated the use of diversion and liaison in its good practice guidance issued as Home Office Circulars.[324] The latest HOPS strategy reiterates this with the aspiration for court diversion and liaison schemes to be made available to all offenders and integrated into mainstream health services.[325] The strategy stresses that no new requirements will be placed on NHS or social care providers without additional funding but states that work is planned to both demonstrate the cost-effectiveness of such schemes and to encourage NOMS and NHS commissioners to adopt such models. The Government is also currently reviewing existing guidance on the prosecution of mentally disordered offenders.

208. Comprehensive court diversion and liaison schemes should be made available nationally as a matter of urgency. Whilst we welcome efforts to make NHS commissioners more aware of the benefits of such schemes, we believe that simple encouragement to fund them is insufficient. Strengthening guidance on diverting mentally disordered offenders will be similarly ineffectual while there continues to be a lack of suitable hospital and community provision to divert them into. Without additional funding the availability and effectiveness of such schemes is unlikely to improve.

209. Specialist mental health courts have been introduced in the USA, Australia and Canada whereby judges, magistrates and other court personnel have specialist expertise and training in dealing with mentally disordered offenders. Nacro advocated the introduction of similar courts in England and Wales as another mechanism to ensure appropriate sentencing for offenders with mental health needs.[326] The Government recently indicated its intention to conduct an assessment of the potential impact of mental health courts.[327]

210. We consider sentencers would benefit from better guidance on their options with regard to persons requiring different levels of mental health support—including diversion schemes and mental health treatment requirements as part of a community sentence. We recommend that such guidance is provided as soon as possible.

Community, custodial and alternative residential provision

211. Community mental health services for adults in England have undergone significant expansion since the National Service Framework for Mental Health was published in 1999. We heard, however, that community provision continues to be limited at best. This affects sentencing decisions, in particular contributing to an under-use of mental health requirements on Community Orders and resulting in an inappropriate use of custody for some vulnerable offenders.

212. The Director of Probation advised that, whilst offender assessments show that 43% of offenders have mental health problems, only 0.3% of requirements on Community Orders are for mental health.[328] He believed that this was either the result of a lack of appropriate provision or because provision was not accessible.[329] Recent research has shown that the use of these requirements is steadily increasing but that both poor service provision and 'legislative obstacles' continue to contribute to their low use.[330] The latter include the susceptibility of the offender for treatment, the need for evidence from a medical examiner, the appropriateness of community-based treatment rather than a hospital order and the requirement for treatment to be provided at short notice. Courts also experience difficulties in getting mental health needs assessed.[331] In written evidence, the Sainsbury Centre for Mental Health further suggested that even where assessments are made and community facilities are available, many of those given such requirements do not consent to them and opt to go to prison instead, possibly because of the stigma of having to admit to mental illness in open court.[332]

213. The Fawcett Society noted the importance of ensuring that sentencers have sufficient information on community drugs and mental health services so they do not see custody as the main place for detoxification or, inappropriately, as a 'place of safety'.[333] However, evidence from sentencers themselves focused particularly on their inability to sentence appropriately because of community mental health provision. John Thornhill cited the example of an area that had recently lost three mental health units to various forms of drug treatment.[334] He felt that magistrates "would use a wider range of community based penalties so that we can tailor them to the individual, but they are not there, and that is one of the difficulties".[335] The Council of Her Majesty's Circuit Judges revealed that judges similarly struggle with the few options available to them in sentencing offenders with mental health problems:

"Prisons are not equipped to deal with the treatment and management of such offenders. Without treatment and management they continue to offend on release with the inevitable consequence that they are returned. Again a failure to address the need to provide policy and resources to cater for the mentally ill offender results in Courts being left with no alternative but to imprison people who have little prospect of securing the treatment necessary in prison and then re-offend".[336]

214. The Chief Inspector of Prisons questioned the use of custody for prisoners with mental health problems and agreed that there was a need for more appropriate forms of healthcare provision.

"It is very well-known that a high proportion of those in prison suffer from some kind of mental disorder. Prisons have got better at dealing with those kinds of prisoners… but that really can only scratch the surface of what is a huge problem and I think the prior question is to ask whether prisons should be places that are dealing with that or whether we need more diversion from prisons and we need more places where people could be diverted to that or actually healthcare environments".[337]

215. Prison in-reach teams similarly struggle to find community services for prisoners when they are released.[338] We recommend that NOMS work with the Department of Health to conduct an audit in each region as to how much community mental health provision is available to those outside prison in relation to needs.

216. The Sainsbury Centre for Mental Health suggested that the key to improving community provision is effective and committed commissioning.[339] However, we were convinced by the evidence from Paul Cavadino that commissioning appropriate services is not simply a question of funding probation; it is also the responsibility of Primary Care Trusts (PCTs). There are, however, difficulties in getting hold of resources which exist outside the criminal justice system. For example, some PCTs are unable to understand their responsibilities for the wider health needs of offenders[340] and there has typically been a low level of engagement of health organisations with ROMS.[341] This was recognised by the Government in 2005: "the health of offenders is not an explicit priority for the health services and the commitment of management resources reflects this. A focus on addressing the health and social care needs of offenders as a contribution to the reduction in health inequalities, which is a priority, is generally not recognised".[342]

217. The Government has similarly recognised the shortage of community mental health provision for offenders.[343] The HOPS strategy states that the Government would like to see a range of alternatives to custody to be made available including more secure acute services and non-residential community support.

218. Addressing the crucial issue of the lack of community mental health provision for offenders will require co-operation between Primary Care Trusts, regional NOMS commissioners and Probation Trusts. The Government needs to take a lead role in supporting and structuring engagement between these organisations, and should not simply rely on commissioning to solve these problems.

219. We learnt of concerns regarding the reversal of the trend of reducing suicides in prison custody. Anne Owers told us that there had been a rise in self-inflicted deaths since January 2007, a figure which had been decreasing.[344] Evidence suggested that this was in part related to prison overcrowding which has, for example, resulted in some prisoners having to change prison after court appearances, with a detrimental impact on the ability of those with mental illness to maintain supportive relationships with staff.[345]

220. There have recently been improvements to the process by which prisoners with mental health problems are transferred to appropriate hospital accommodation. Home Office snapshot figures reveal that an increasing proportion of restricted patients detained in hospitals in December 2005 had been transferred from prison.[346]

221. Several witnesses highlighted the need for more residential treatment facilities for mentally disordered offenders as an alternative to the use of prison. However, we heard that efforts to divert mentally disordered offenders from prison are hindered by a lack of NHS secure beds. Nacro told us: "we are seriously underpowered in respect of intensive residential placements for difficult people. Prisons fill the gap".[347] Anne Owers referred to mentally disordered offenders as "casualties of closure of large mental health hospitals" and that they "should be more properly treated in a therapeutic environment, either secure or community based".[348] The rising length of sentences and greater use of indeterminate sentences is likely to increase further the need for the use of hospital transfers from prison.

222. We agree with the Sainsbury Centre for Mental Health which recommended a review of the facilities available to prisoners for compulsory mental health treatment. This should consider the scope for timely transfers to treatment in facilities other than simply medium-secure accommodation.

223. It is evident that the Government is conscious of the need to re-examine the use of custody including, for example, the potential use of specialist hybrid prisons for serious offenders with significant mental health problems.[349] Lord Bradley is currently carrying out a review for the Department of Health and Ministry of Justice on how more offenders with severe mental health problems and learning disabilities can be diverted away from the criminal justice system and prison and into more appropriate facilities. He is expected to report his findings in summer 2008. We welcome this review.

224. We recommend that the current review by Lord Bradley into the diversion of offenders with mental health problems from the criminal justice system and prison conduct a needs-based review of mentally disordered offenders, including an examination of the need for various types of prison and other residential treatment and community based treatment.

225. The Government should urgently proceed with assessing the potential impact of Mental Health Courts. We believe that the Bradley Review of the diversion of individuals with mental health problems from the criminal justice system and prison should examine and consider the costs and benefits of Mental Health Courts.

Young People

Background

226. A distinct approach is taken to sentencing young people aged 10 to 17. The range of sentencing options for young offenders is set out in the Crime and Disorder Act 1998 which introduced what the Youth Justice Board (YJB) described as "significant changes" to the sentencing framework and established a number of new sentences including Reprimands and Final Warnings (which replaced cautions), Reparation Orders, Action Plan Orders and Detention and Training Orders.[350] These were supplemented in 2002 by Referral Orders.[351] The 2003 Act did not extend the community rehabilitation order to young people but the introduction of the Youth Rehabilitation Order in the 2008 Act will rationalise current orders, although the Reparation Order and Referral Order will be retained, and give greater flexibility to the courts on the use of interventions and conditions.

227. The YJB called for similar but distinct "purposes of sentencing" for children and young people as those set out in the 2003 Act.[352] The 2008 Act defines the primary purpose of sentencing children and young people as preventing offending and for the first time sets out supporting purposes of sentencing—namely punishment of the offender, reform and rehabilitation of the offender, protection of the public and the making of reparation. These mirror the purposes of sentencing for adults set out in the 2003 Act but without the fifth aim of reducing crime present for adults. The welfare of the young person is included in the Act as a consideration in sentencing but not as a distinct purpose of sentencing.[353]

228. The youth justice system has been criticised for failing to address adequately the welfare needs of young offenders and there has typically been a lack of congruence between mainstream children welfare policy and youth justice policy, illustrated in Every Child Matters and Youth Justice: The Next Steps.[354] Many young people, in particular the more persistent and serious offenders, have considerable needs to be addressed. Young people on the Intensive Supervision and Surveillance Programme (ISSP), for example, experience multiple problems including self-harm, attempted suicide, living with known offenders, history of abuse, lack of education and homelessness.[355] It is not realistic to expect that lives and behaviour will change in a short amount of time. While the youth justice system may play a critical role where young people have committed criminal acts to change behaviour there is clearly a role for children's services more broadly.

229. We welcome the recent changes to responsibility for youth justice policy and sponsorship of the Youth Justice Board which became the joint responsibility of the Ministry of Justice and Department for Children, Schools and Families following machinery of government changes in June 2007. We urge the Government to address the welfare of young offenders as an explicit purpose of sentencing.

IS SENTENCING AND SUBSEQUENT PROVISION EFFECTIVE FOR VULNERABLE YOUNG OFFENDERS?

230. Rod Morgan, former Chair of the Youth Justice Board, outlined his views on the problems with youth justice policy and the failure of the YJB to meet their target to reduce custody in his open resignation letter:

"[the youth justice system] is being swamped, however, by a form of mission-creep which neither the YJB at the centre or the YOTs locally is able effectively to control. I refer to the growth in the number of children and young people in custody and the substantial increase in the numbers of children and young people being criminalised and/or prosecuted. Neither policy is in my judgement sensible, cost-effective or sustainable: it threatens our statutory commitment to reduce offending and re-offending. The gains we have made in the custodial sector are being thrown into reverse due to system overcrowding. Meanwhile the youth court and the YOTs are dealing with a growing number of relatively minor young offenders who could more effectively, speedily and cheaply be held to account for their behaviour either informally in situ or pre-court. This growth in the number of relatively minor offenders being prosecuted is analogous to the decline of the fine and the one third of the Probation Service's caseload which, when I was Chief Inspector of Probation, I argued did not need the professional attentions of the Probation Service. I described this trend as 'silting up'. The same phenomenon characterises youth justice. It is wasteful of scarce, overstretched criminal justice resources and diverts YOTs… from providing a more intensive service for medium and high-risk offenders".[356]

231. This is supported by evidence we received from the Centre for Crime and Justice Studies who told us that there has been: "a 26% increase in the number of children and young people criminalised in the past three years, while there is no apparent increase in known offending by this age group".[357] The Criminal Bar Association spoke of a "worrying increase" in the number of punitive orders being made without conviction, for example, ASBOs and fixed penalty notices, which are ultimately serving to widen the net of the youth justice system[358]. Similar concerns were raised by the International Centre for Prison Studies, JUSTICE and the NSPCC. Concerns were also raised that the length of sentences is increasing.[359]

Pre-court diversion and 1^st tier disposals

232. According to the YJB, the Crime and Disorder Act 1998 brought 'clarity to the pre-court system' and led to the end of repeat cautions with no intervention, but we heard that there is still more scope to use cautioning to avoid minor offences reaching court.

233. Conditional cautioning for children and young people will be introduced under the 2008 Act. Witnesses gave a mixed response to the proposed introduction of the conditional caution as an alternative to prosecution for young people. JUSTICE questioned the appropriateness of the imposition of punishment by police and prosecutors. Whilst the Magistrates' Association were in favour of keeping young people out of the criminal justice system wherever possible and appropriate, it told us that: "existing pre-court measures are extensive, more than sufficient to deal with low level offences and nothing further is needed", adding that the array of disposals that are already in existence can be confusing to young people.[360] However, the YJB supported an additional level of diversion for cases where they felt a more formal criminal justice response was disproportionate.[361] The Prince's Trust felt this was "crucial" and cited an example of a Crown Prosecution Service pilot project which used conditional cautioning as a mechanism to engage young people in positive activities.[362] Research on conditional cautions for adults, introduced under the 2003 Act, has demonstrated the potential for 'uptariffing' to occur and highlighted that effective implementation was hindered by a lack of understanding of the types of cases that should be targeted and a lack of additional resources to them.[363]

234. We welcome the introduction of the conditional caution as an additional mechanism to keep low level cases out of the youth justice system. It is essential that an assessment of the resources required to support their use is made prior to their implementation, and that implementation is supported by clear guidelines on their intended use.

235. Restorative Justice principles are already widely used as part of final warnings. The Magistrates' Association advocated for an extension of the use of Restorative Justice in dealing with minor incidents that are not serious enough to require a charge stating that: "too many minor incidents are being brought to court where in previous years prosecution would not have gone ahead".[364] This was supported by the YJB, Lord Woolf, the International Centre for Prison Studies, the Restorative Justice Consortium and JUSTICE, who agreed that incidents in schools and care homes could be dealt with more appropriately using behaviour management and restorative conflict resolution interventions such as mediation.[365] Concerns were also raised that Offences Brought to Justice Targets had pushed children into unnecessary formal disposals for minor misbehaviour and witnesses advocated for the wider use of direct resolution between the victim and the offender led by the police on the street and neighbourhood mediation in such cases.[366]

236. There should be a stronger Crown Prosecution Service policy against prosecution in less serious cases when other more effective measures are available. The Department for Children, Schools and Families, the Ministry of Justice and the Youth Justice Board must work together to develop proposals to ensure that schools and children's care homes expand the use of Restorative Justice for minor incidents.

Community

237. The 2008 Act introduces a generic Youth Rehabilitation Order on a similar model to the current adult community order. An order can be made with a range of requirements largely matching those available for adults (see para 120) with the exceptions of the adult drug rehabilitation and alcohol treatment requirements which become drug treatment, drug testing and intoxicating substance treatment requirements; unpaid work requirements can only be imposed where the young person is 16 or 17. In addition to the requirements available for adults, a Youth Rehabilitation Order can include education and local authority residency requirements. The court are also able to make a Youth Rehabilitation Order coupled with intensive supervision and surveillance or intensive fostering.

238. The YJB told us it is in favour of some rationalisation of the sentencing framework especially to match sentences to issues raised through YOT assessment and court reports, but that it wished to retain reparation and referral orders as separate sentences.[367] It is also keen to ensure that the Youth Rehabilitation Order does not produce a quicker escalation of young people through the sentencing framework. The issue of breach and the demanding nature of requirements was heavily debated during the passage of the 2008 Act. In preparation for the implementation of the Youth Rehabilitation Order, the YJB has introduced a targeted approach which links risk assessment to the length of the order and the nature of additional requirements. But the Board has acknowledged the difficulties of adopting a risk-based model because, by their very nature, young people have less criminal history on which to base an assessment of risk.[368]

239. We suggest clear guidelines should be introduced on the tiered approach to the use of the Youth Rehabilitation Order. We also have concerns regarding the cost implications of implementation and the capacity of Youth Offending Teams and partner agencies to deliver the range of requirements necessary to meet the needs of the courts. Lessons must be learnt from the implementation of the generic Community Order, where key requirements have not been used because of lack of resources to deliver them.

Intensive supervision and surveillance and custody as a last resort

240. The principles related to the use of custody for young offenders set out in the Strategy for the Secure Estate state that custody should only be used as a last resort and should be used "particularly sparingly" for young people because of their "dependent, developing and often vulnerable status".[369] Despite a commitment by the YJB to reduce the use of custody by 10% in the three years to March 2008, the number of young people in secure accommodation has remained stubbornly high, peaking at 3036 in September 2007, although the use of custody as a proportion of overall court disposals has marginally decreased. A significant proportion, approximately two-thirds, of the YJB budget is spent on providing custodial places.[370]

241. Concerns were raised by several witnesses regarding the principle to use custody as a last resort as specified in Article 37 of the United Nations Convention on the Rights of the Child.[371] The YJB told us they have worked to develop the robustness of, and confidence in, Community Orders to minimise the need for custody. Evidence highlighted in particular the value of the Intensive Supervision and Surveillance Programme as a robust alternative to custody. Intensive Supervision and Surveillance can now be coupled with the Youth Rehabilitation Order to provide an increased level of intervention and monitoring for young people on high-end community sentences. Yet, whilst the Magistrates' Association agrees that the Intensive Supervision and Surveillance Programme has proven successful in terms of reducing re-offending, they felt that there was a lack of resources to ensure the availability of the programme for all serious and persistent offenders who could benefit.

242. The YJB told us they would welcome placing Intensive Supervision and Surveillance on a statutory footing as separate requirement of Youth Rehabilitation Order. Nacro, JUSTICE and the Centre for Crime and Justice Studies also supported this as a mechanism to ensure that custody is truly reserved as a last resort. Policy and practice in relation to the use of custody, and in particular the use of custody as a last resort in England and Wales, has been consistently strongly criticised for contravention of the United Nations Convention on the Rights of the Child. The UN Committee has registered a formal protest and requirement for the UK, as a signatory to the Convention, to correct breaches of children's rights in this context.[372] We share the concerns of the Joint Committee on Human Rights that simply making Intensive Supervision and Surveillance part of the Youth Rehabilitation Order does not do enough to make custody a last resort.

243. The draft Youth Justice Bill published by the Government in 2005 contained a provision that would have prevented courts from passing Detention and Training Orders on young people, except for those convicted of grave crimes, unless they had already tried an Intensive Supervision and Surveillance Programme.[373] JUSTICE suggested going further and expanding the 'last resort' criterion to provide that a custodial sentence may only be imposed where offending behaviour demonstrates a risk of serious injury or death to members of the public.[374] The YJB stated that they would welcome, either in statute or in sentencing guidelines, the development of an operational definition of last resort in terms of custody for young people to promote greater consistency.[375] Full sentencing guidelines for youths were planned by the Sentencing Guidelines Council in 2005 but have been postponed pending finalisation of the 2008 Act.

244. We are encouraged that the Government shares our view that there is excessive use of custody for young offenders. The Ministry of Justice should concentrate on finding mechanisms for driving down the numbers of young offenders in custody. However, current proposals do not go far enough. There is a need for clear guidance to ensure that the Intensive Supervision and Surveillance requirement is used as a last resort and for Youth Offending Teams and courts to ensure that they are realistic about breaching and re-sentencing young people on these orders who, by their very nature, are particularly vulnerable. It is essential that the Sentencing Guidelines Council produce guidelines for the new Youth Rehabilitation Order before implementation. We also have concerns about the funding and the availability of programmes to meet the needs of the court in sentencing young people to this requirement. It is imperative that funding is prioritised to ensure that young people do not end up in custody for want of a place on an Intensive Supervision and Surveillance Programme.

245. We have concerns about resources and the capacity of Youth Offending Teams to implement the intensive fostering requirement for young people whose offending is linked to their home environment. We recommend that this element of the 2008 Act is not implemented until the Youth Justice Board is confident that Youth Offending Teams have sufficient resources to do so.

Effective custodial provision

246. Children sentenced to custody can be placed in local authority secure children's homes, secure training centres or young offender institutions depending upon their age and vulnerability. The primary custodial sentence for children and young people under 18 is the Detention and Training Order. The length of the sentence can be between four months and two years. The first half of the sentence is spent in custody while the second half is spent in the community under the supervision of the Youth Offending Team. For more serious offences young people are sentenced under Section 90 and 91 custodial sentences. The 2003 Act also applies extended sentences and imprisonment for public protection to youth justice.

247. Evidence suggests that, as with adults, short custodial sentences are ineffective for many young people because little can be done in this time to change the circumstances which may have led to offending. Custodial staff have "simply no time" to engage or to do anything realistic in terms of resettlement making it virtually impossible to change circumstances which may have contributed to the offending in the first place.[376] The YJB acknowledged there was "not a sufficiently long period of time to expect work in custody to have any lasting impact".[377] Judge Hall and other witnesses highlighted the tendency for offenders to disengage from school at a young age and criticised the lack of impact of short-term custodial sentences on reading and writing.[378]

248. Whilst the high numbers of young people in custody have not resulted in physically crowded establishments to the same degree as adult men, we heard that overcrowding increases the extent to which young people are moved around the system. Anne Owers cited the case of a young man who had moved institutions three times, describing his experience as "a bit like musical cells, you have to see where you have got a bed".[379] Furthermore, we heard that the shortage of spaces affects effective sentence planning because it increases the distance from home, Youth Offending Team and family, hinders young people's ability to complete courses and obstructs the flow of information around the system.[380] There is some evidence that the pressures on the prison population affect detrimentally the flexibility of the youth justice estate, causing for example the recent closure of Thorn Cross Open Prison to juveniles and a new purpose built unit for young women being closed to accommodate young men instead.

249. We are concerned that the Youth Justice Board has been unable to reduce or stabilise the youth custodial population and that continued growth is reversing earlier progress in improving the juvenile estate. The efficacy of the use of very short custodial sentences for young people should be reviewed as a matter of urgency. We agree with HM Inspector of Prisons that, where young people have to be held in custody, it is imperative that vulnerable young people are held in establishments close to their families.

Appropriate custodial provision

250. The vast majority of custodial places in the youth justice system are in young offender institutions. Recent reductions in the number of local authority secure children's homes have left only 235 places for vulnerable young people together with a further 301 places available to younger offenders in secure training centres. The vulnerability of a young person is determined by an assessment which examines: the risk of self-harm; whether young people have been bullied, abused, neglected or depressed, or experienced separation, loss or care episodes; risk taking behaviour; substance misuse and other health-related needs; and the ability to cope in a young offender institution or other custodial establishment. In theory the vulnerability of the young person influences what type of custodial establishment they are placed in, but the extent to which this is possible when there are limited places available has been highlighted by inquests into recent self-inflicted deaths of young people in custody.[381]

251. Some witnesses questioned the use of prison service custody for children. JUSTICE argued for the removal of young people from prison service custody altogether, regarding the "incarceration of damaged children in unsuitable and dangerous institutions" as "a national scandal".[382] Their suggestion that local authority children's homes should accommodate those who genuinely need to be held in custody was also supported by NSPCC.[383]

252. There was some concern over the introduction of extended public protection sentences for children and young people under the 2003 Act. According to the YJB "significant numbers have been subject to these new orders".[384] The NSPCC raised concern over this development and JUSTICE suggested the needs of this group be adequately catered for in custodial provision, for example, by expanding dedicated juvenile psychiatric provision and specialist provision for young people who require a high security environment.[385] The International Centre for Prison Studies cited the example of Finland in this regard: "If Finland, with a tenth of our population, locked up children at the English rate, one might expect a prison population of 300. In fact there are just a handful of boys in prison. Looking at psychiatric provision however, Finland has about 4,000 beds for adolescents, compared to a total of 1,128 in England".[386]

253. Young sex offenders were highlighted as a particularly vulnerable group. The NSPCC argued that there was a need for greater focus on coordinated treatment and rehabilitation for these young people than was currently allowed under the current sentencing framework.[387] They suggest that use of criminal justice routes to address such offending ignores the wider safeguarding needs of young sex offenders who are often vulnerable. They often have a history of abuse themselves and they are more likely to self-harm and suffer harm from others.

254. There is an urgent need to examine the needs of vulnerable young people in the youth justice system and the appropriateness of secure accommodation for those who need to be held in custody. Better alternatives to secure accommodation for vulnerable young people who do not represent a danger to the public should be found.

273 Making Sentencing Clearer-a consultation and report of a review by the Home Secretary, Lord Chancellor and Attorney General, November 2006 Back

274 Home Office, Strategy for Women Offenders, 2000 Back

275 Home Office, The Government's Strategy for Women Offenders Consultation Report, September 2001 Back

276 Home Office, Women's Offending Reduction Programme: Action Plan, 2004 Back

277 Home Office, The Corston Report: A Review of Women with Particular Vulnerabilities in the Criminal Justice System, March 2007. Back

278 Ministry of Justice, The Government's Response to the Report by Baroness Corston of a Review of Women with Particular Vulnerabilities in the Criminal Justice System, December 2007, Cm 7261 Back

279 NOMS, National Service Framework for Women Offenders, May 2008 and Offender Management Guide to Working with Women Offenders, May 2008 Back

280 Ministry of Justice, Delivering the Government response to the Corston Report, June 2008 Back

281 Fawcett Society, Understanding Your Duty: Report on the Gender Equality Duty and Criminal Justice System, July 2006 Back

282 Home Office, Offender Management Caseload Statistics 2005, 2006 Back

283 Home Office, Population in Custody-January 2007, 2007 Back

284 Prison Reform Trust, Bromley Briefings Prison Fact file, December 2007 Back