Youth Custody for persons aged 12 and over (P.2-2004) - comments

STATES OF JERSEY

r

YOUTH CUSTODY FOR PERSONS AGED 12 AND OVER (P.2/2004): COMMENTS

Presented to the States on 2nd March 2004 by the Home Affairs Committee

STATES GREFFE

COMMENTS

Legislative framework

1. T h e current legislative framework for dealing with those offenders under the age of eighteen is the Criminal Justice (YoungOffenders) (Jersey) Law 1994 (hereinafter referred to as "the Law"). This is a relatively upto date law and one of its principal effects wastobring17 year olds within the ambitof the Youth Courtwhere previously they had beendealtwith in the Police Court (now Magistrate's Court). Given that this law is only 10years old, anunderstandingofwhatwas considered to be anappropriate way of dealing with young offendersisanimportant backdrop to the proposition before the States. At Article 16, the Law provides for children ofschoolage to be remanded to a remand centre rather than simply in custodyas Deputy Hill's report suggests. Hitherto,theremand centre has been Greenfields (formerly known as Les Chênes Residential School). Children beyondschoolagemay be remanded to the Young Offenders Institute (YOI)atLaMoye.As regards sentencing, Article 4 provides that childrenof 15 years and abovemaybe given a sentence of youth detention attheYOI.There is no provision to sentence children under the ageof15to a period ofyouthdetention: clearly, this wasnotconsidered necessary in 1994. However, Article 5 recognises that therewill, from time totime,be a need forchildren whocommit the mostheinousof crimes to be deprived of their liberty "in a place and under conditions which the Secretary of State may direct".

Roles performed by the Remand Centre

2. U n til 2002, the Youth Court andRoyal Court in particular were able to placethose children whom the court feltwarranted it, and who had been assessed as suitable,onprobation with a condition that they reside at LesChênes Residential School, and to live as directed by the HeadTeacher. This enabled such children to be cared forand educated in a more secure environment. However, although this regimewas successful formany children, it was problematic in several ways.
3. F i r stly, Les Chênes had to manage a mixedpopulationofchild offenders and welfare referrals from the Child Psychologist. Inevitably, this involved the staff inmanagingup to 20 challenging children at the same time.Notonlywas this too many, but some hadsevereemotionaland behavioural difficulties (SEBD) tobe addressed whilst others hadcommitted criminal offences, somewere on remand and others sentenced, and those that had been sentenced required different levels of security. It is importantto appreciate that the Bull Report was not a studyofyouth offending, but rather of children displaying SEBD – the two are not necessarily linked as Deputy Hill'sreportimplies.
4. S e c ondly, this regimesucceededfor many yearson the skill and dedication of successive head teachers and their staff. Consequently,thecare,educationaland control difficulties, which the staff confronted on a daily basis, would only beapparent to the public when things went wrong occasionally, moreoften than not through escapes' from LesChênesreportedby the media.AlthoughDr.Bull'srecent report was directed at dealing with children with SEBD rather than how children are dealt with by the criminal justice system, the report nevertheless highlighted the deficiencies inour ability to deal withchildrenwho had passedthrough the courtprocess and shewas critical of the multiplicity ofroles that LesChêneswas tasked to perform.Consequently,Greenfields has virtually ceased accepting referrals from the Child Psychologistand has been operatingalmostexclusively as a remand centre in accordance with the Law. A recent development, however, hasbeenthe allocation of two welfare places to add to the 6 remand places.
5. T h i rdly, asmentioned earlier, until 2002magistrates had been usingthe umbrella' of a Probation Order in order to pass a sentencewhich required young offenders, somebelowthe age of15,to reside at Les Chênes. This was usually preceded by a 6 week period of assessment by the Head Teacher and a recommendationto the YouthCourt. This practice has fallen into disuse,butthose young offenders who the Courtconsider might merit a custodialsentence are often remanded into the careofGreenfieldsfor a period of time prior to sentencing which,arguably, has a similar effect.

The issues to be decided

6. D  e putyHill's proposition highlights thefact that in Jersey wedonot currently have,other than the provision given in Article 5 of the Law, a provision to incarcerate children under the age of 15.Whether such a provision is justified, what effect it is likely to have,how such facilities should be provided and underwhatcircumstances this might serve a purpose, are the issues uponwhichmembers must decide.
7. I n h is report, Deputy Hill outlinestheoccasions upon which this has been considered by the Home Affairs Committee,past and present,andtheTri-PartiteCommitteeoverseeingthe implementation of the Bull Report. Heis correct to assert that, hitherto, Home Affairs Committees have taken the view that the incarceration ofchildrenunder the ageof 15 is "astep too far". However, it is incorrect to assert that the three Presidentswishedtomeetthe Magistrate in order to indulge in "agameof pass the parcel". The Presidents wished to meet with the Magistrate principally becauseDr. Bull had been unable to complete her action plan owing to the absence ofany focus group work in developing a Tariff of Offending Behaviour. ItwasDr.Bull'sunderstanding that she had agreed with theMagistrate that hewould take this work  forward.  Unbeknown to  her,  the  Magistrate had not interpreted  the  task in  the same way. Consequently, the notion of a Tariff remains undeveloped.Had this workbeencarriedoutintandem with other focusgroup work, it would have certainly precipitated a debatebetween Committee membersand the judiciary on the need for a wider custodial provision.
8. D  ep uty Hill's proposition asks memberstoapproveanamendment to theLaw that would allow the courts, under defined circumstances, to sentence children aged 12to14to periods ofyouth detention. Thereis already somecommongroundin that Deputy Hill does not suggest that theYOIatLaMoye would be able to provide theappropriateenvironment for childrenof this age.Itmustbebornein mind, however, that thereis presently no Committee ofthe States charged with providingcustodial facilities for children under the age of 15 whomight besentenced to youth detention should the proposition beadopted. Therefore, if such facilities are not to be provided at the YOI,thoughtmustbegiventowhereelse they might be situated and which is the appropriate Committee to bear the responsibility. Greenfields is a remandcentreand it is not simply a caseofsuperimposingsentenced children of such a young ageon its existing remit.
9. I m p lementing Deputy Hill's Proposition would run the risk of causing Jersey to be in contravention of the United Nations Rules concerning the administration of Juvenile Justice ("The Beijing Rules"); the United Nations Guidelines fortheprevention of Juvenile Delinquency ("TheRiyadhGuidelines") and "The United Nations Rules for the Protection ofJuveniles Deprived of their Liberty (1990)". Whilst theserules and guidelines do nothave the forceof domestic law, they are considered by such bodiesas the European Court when considering Youth Justice matters. Membersmayconsider,havingsought advice from the Attorney General, that any new legislation should be drafted andimplementedin such a wayastobe compliant with both the letter and spirit of thesedocuments.
10. A decisionon such an importantmatter as the incarceration ofchildrenshouldbeevidence-based.To that end, and to help membersdevelop an informed view, the Tri-Partite Committee is organising an evening seminar entitled "Child Offenders – WhatWorks" which will take placeon the 10th Marchtowhich all States membersandmembersof the judiciary willbeinvited. This seminar will enablemembersto consider the issues in more detail and it would be sensible, therefore, for the debate on Deputy Hill's proposition  to  take  place  shortly  afterwards. The Home Affairs  seminar  web site at http://youthseminar.server101.comcontains further reference information onthesubject.

Is a custodial option justified?

11. T h is section of the report contains a thorough examination of the pattern of youthoffending in Jersey. This analysis forms part of the report for three main reasons. Firstly, inorder to make an objective decision as to whether to introduce a power to incarcerate children under the age of 15,membersoughtto be able toconsider the extent of youthoffendingbasedon reliable statistics. Secondly, Deputy Hill's

proposition contained only two references to statistics, both of which are wrong and capable of misleading

members about the extent of youth offending. Therefore, this report contains factual information drawn from statistics available from the States of Jersey Police, Probation Service with regard to Parish Hall Enquiries (PHEs) and the Youth Court. Thirdly, the information contained in the Appendix will show the progress that the Home Affairs Committee has made since the criminal justice policy review report published by Professor Rutherford in October 2002. The second recommendation of that report was that, by 2005, the Island ought to be able to publish an annual set of reliable, robust and consistent criminal justice statistics. Although there is still much to be done on the integration and automation of data, we have succeeded in being able to extract important information from separate criminal justice sources. The following information can be extracted from the available data; however, it must be borne in mind that the numbers involved are sometimes small and that, consequently, percentage changes may be less significant than they would be for larger totals.

12. States of Jersey Police Statistics.  Comprehensive data aboutrecordedcrimehas only been available from the Statesof Jersey Police since2002 owing to the introductionof the On-linePolice Electronic Network (OPEN)database.Therefore,we should treat conclusions that are drawn with caution. Their statistics show that:

• A  lt h ough there has been a 13% increase in the number of young offenders coming to the attention

of the States of Jersey Police from 2002 to 2003 (Table 1), there has only been a 1.3% increase in the total number of recorded offences (Table 2). This could either be because offenders are less prolific or repeat offenders are committing fewer crimes.

• T h e r e has been a slight increase in the number of offences, from 192 to 215, committed by those below the age of 14 (Table 3).

• F o r the age group 14 to 17, there has been a slight reduction in the overall number of recorded offences (Table 4).

• A  cq u isitive crime is the most prevalent type of offending committed by those below the age of 14 and for 15 to 17 year olds (Table 5).

13. Parish Hall Enquiry Statistics.  The following information can bedrawn from the data available for attendance atPHEsbyyouths from 1996 to 2003:

• I n g e neral the number of youths attending PHEs has remained fairly stable over the period (Table 6).

• T h e r e appears to be a reduction in the number of young people attending PHE for public order offences, crimes against the person and crimes against property. The only discernable rise is an increase in motoring offences and larceny. (Table 7).

• T  h e percentage of those youths dealt with by way of fines at PHEs has increased dramatically since 2001, probably reflecting the increase in motoring offences.

• U  se of the deferred decision is becoming more popular and was used in 24% of PHEs with a 99% success rate.

14. Youth Court Statistics.  The Home Affairs Departmenthasbuilton the Youth Court data provided for the RutherfordReportbyproviding a continuous set ofannual data for the 7 years from 1997 to2003. This enablesus to provide importantlongitudinal statistics which show thefollowing:

• U  p u ntil 2000, the number of children appearing in the Youth Court was fairly stable, rising from 162 in 1997 to 189 in 2000. In 2001, there was a dramatic rise to 251 which was maintained in

2002 before a slight additional rise to 277 in 2003 (Table 8).

• T h  e number of children under 14 appearing in the Youth Court has risen proportionately faster since 1999 than the 14-17 age group (Table 9).

• T  ra f fic offences are the most prevalent offences dealt with by the Youth Court (34% of all offences) with acquisitive crime the next prevalent (19%) (Table 10). However, Traffic offences have declined by 7% over the whole period.

• O  f fe nces Against Property have risen by 425% since 1997, although the overall numbers are small, and breaches of Probation and Binding Over Orders have risen by 400%.

• H  is to rically, the most frequently used sentence has been a Binding Over Order, but this has started to decline over the last 3 years in favour of fines and Probation Orders reflecting a change in sentencing policy by the Youth Court (Table 11).

• I n t h e last 2 years there has been a dramatic increase in the number of offenders whose cases have been dismissed.

• F r o m  1997 to 1999, there were 21 sentences of youth detention compared with 32 for the period

2001 to 2003 representing a 52% increase overall. There has been a 22% decrease in the numbers being remanded to the Royal Court over the same periods, but this is probably due to an increase in the court's jurisdiction in 2001 (Table  11).

• T h e average age of offenders attending Youth Court has fallen slightly from 15.4 to 15.1 years of age.

15. W e mustguard against drawing any firm conclusions from theabove statistics when such smallnumbers and changes from year to year are involved.However,we can conclude that in the last 2 years, the States of Jersey Police hasrecordedoffences against more offendersbut for only a slightincrease in the overall numberof offences. The increasing use of fines, community service and probation rather than youth detention and remands to the Royal Court might suggest that the Youth Court is not dealing with significantly more serious offending generally. However, the lack of a secure sentencing option for persistent offendersunder15 has meant that the YouthCourt has hadtosentencetorepeatedProbation Orders. We know from records kept by the Magistrate that the problem is more one of persistent offending by a smallnumberof young offenders.Thenumberofchildrenunder the ageof14committing offences is increasing year onyear.Thenumber of childrenappearingatPHEs remained fairly static over the period. However, bearing in mind that there has been a 16.2%increaseinthoseunder17 in Jersey since 1991, there was only a 16.6%increase in numbers attending Youth Court between 1997 to 2000 but a 46% increase from 2000 to 2003. This bears out the fact that a greater proportion of children, particularly those identified by the Magistrate as being persistent offenders, are being warned for appearance before the Youth Court rather than appearingfirst before a PHE.

What effect is custody likely to have?

16. In attempting to assess what effect a custodial option for children as young as12yearsofage is likely to have,theUnitedKingdom(U.K.)experiencebearsexamination. Information on the U.K. experience is drawn from two recent policy reports published by the National Association for the Care and Rehabilitation of Offenders (NACRO): Reducing Child Imprisonment – Counting the Cost' and A Failure ofJustice'.Accordingto these recent publications,whichare a reputable source, despite a fall in recorded crime, there has been a dramatic rise inthenumber of childrenlockedup in theU.K. in recent years, rising from 4,000in1992 to 7,600 in 2001. The reports describe this as a "rushtocustody"which is characterised by:

• A   r e duced tolerance for child offending in comparison to adults with custody for young people

rising at a faster rate. Between 1992 to 2001 the use of adult custodial sentences rose by 82% and for under 18s by

90%.

• A  n i ncrease in the length of sentence. The average length of a custodial sentence for boys aged 15 to 17 rose from 9.2 months in 1992 to 10.8 months in 2001.

• A   te ndency to incarcerate at ever younger ages. The number of children under 15 who were sentenced to detention rose by 800% between 1992 to 2001 (from 100 to 800).

• A  d i sproportionate rise in the use of detention for girls. Whilst the level of youth custody has risen by 90% since 1992, the expansion for girls is around 400%.

• T h e table below gives the approximate under eighteen custodial population by country for 2002. The table shows that our current incarceration rate is by far the worst, being three times that of

Germany (the second highest) and six times that of England and Wales.

Comparison with other European Countries

Approximate under 18 custodial population by country

17. In termsof preventing offending, the reports make the following findings:

• I n t e rms of re-offending rates following release from custody, the re-conviction rates of 14 to 17 year olds within 24 months of release is 80%. The equivalent figure for the YOI in Jersey is 88%.

• T h e r e is doubt as to whether custody is being used for public protection. The U.K. statistics reveal

that 27 children were convicted of a murder, 46 for grave sexual offences, 13 for manslaughter and less than 14% for robbery. By far the largest proportion sent to prison were for theft or handling stolen goods (one in four).

• I n t e rms of reducing crime by locking up hard core or persistent offenders, NACRO estimate that

an additional 1,140 young offenders would need to be locked up in order to achieve a 1% reduction in crime. Persistent and serious juvenile offenders differ from adult offenders in that their offending is relatively transient and few go on to become serious and persistent adult offenders.

• A  s a deterrent, Home Office research suggests that increasing severity of penalties has a negligible impact on patterns of offending.

18. U n til 1998, custodial sentences were not available for childrenunder15other than those convicted of grave offencesinU.K.CrownCourts. The secure training order(STO) brought in at that time provided a custodial penalty forchildren as youngas12,hencethe800%rise in detention between1992 to 2001. NACROconsider that, for this youngeragegroup,re-offendingrates following custody maybehigher than forolder teenagers. For example, the HomeOffice evaluation of the MedwaySecure Training Centre

records that, for children subject to an STO leaving the centre, 11% were arrested for an offence within one week,

52% within 7 weeks and 67% within 20 weeks. In April 2000, the detention and training order (DTO) replaced the STO (previously for children aged 12-14) and detention in a young offender institution (previously for those aged 15-17) with a single, uniform sentence. The DTO is served half in custody and half in the community with the potential for early or late release. The Youth Justice Board in England is currently evaluating the DTO.

How should custodial facilities be provided?

19. C r eating a secure environment for children sentenced to custody is expensive. In the financial and manpowerimplications section of his report, Deputy Hill makes an assumption that Greenfields will be able toacceptsentenced children aswellas those on remand. If that were possible, itcould have the desirable outcomeof enabling 15 year olds who would currently serveyouth detention at the YOItobe accommodatedat Greenfields, and later, in a new secure unit.TheEducation, Sport and Culture (ESC) Committee are best placed tocommentupon that proposal.However, Deputy Hillunderstates the current staffing requirement.As well as the 14 day care staff, Greenfieldshas a manager, 3 nightstaff and 4 domestic staff: a total complementof 22. In her report, Dr. Bull envisaged a secure care facility for 8 children requiring a care staff complement of 24and additional domestic staff. A similar unit in the U.K. would typically have 2/3 managers,20care staff, 4/5 teaching staff, 2 night staff and18 domestic staff – a total complementofaround48.To this mustbeadded the capital cost of building appropriate custodial facilities. The ESC Committee have indicated that £2.5 million earmarked in the capital programme could be allocated for this latter purpose.
20. H i therto, Guernsey have not provided secure criminal accommodation; neither do they intend to. They have,however, been makingarrangements to sendsentenced children to the U.K.on a Secure Care Order once they have put legislation in place. They are currently discussing transfer mechanisms with the U.K. authorities. They already send childrento the U.K. on welfare and special needsplacementsand are thought to have around 30 children away atpresent. This is an expensiveoption;we know from the infrequent placementsmadeby Jersey courts to special secure unitsin the U.K. that costsup to £70,000 per individual per annum can beincurred. In 2003, Guernsey sentenced only one15 year old toyouth detention andno child under that age. They also hadone16 year old onremandfor a week.Theseterms were served in their YOI.Theyalsomaintain a temporary holding cellinoneof their homes for children undertheageof 15, butitwas not used last year.
21. W h ichever option mightbe opted for, there is no cheap solution. The States would need to accept the high revenue and capital costs involved. The Guernsey model also raises human rights considerations by sending children awayto another jurisdiction.

Under what circumstances might custody serve a purpose?

22. T h e proposition is that a custodial option is requiredwhen there is a history of failure to respond tonon- custodial penalties, to protect the public from serious harm orwhen serious offending is involved. To that end, members might decide that thecourtsneed to be able torespond with a custodialsentence in some instances, andalsobe able to breakthecycleofoffending.Whether custody addressestheroot causes of offending andturns young children away from their offendingbehaviour in the longer termis another matter; the evidence is that too often, though the case for a custodial sentencemight be compelling, it remains a punitive measure with negligible rehabilitative value.

Conclusion

23. In conclusion, Statesmembers must weigh carefully the judicial, moral, social and financial arguments outlined in this paper for and against sentencing children aged 12to 14 toyouth detention. Theremaybe legitimate judicial grounds, asoutlined in the proposition, for requiring a secureprovision.However, there are moral considerations by virtue ofage and whether ornot sentences should be served outside the Island; social considerations intermsof the stigmatisation of having served a period of custody, the effect on families and the desirability of longer term rehabilitation; and the financial burdenon the tax payerin

an Island of increasingly limited resources. Furthermore, members also need to debate which of the three

Committees should have responsibility for the secure facilities.

24. W  hilst accepting that, for the reasons set outinparagraph(a), (i) to (iii) oftheproposition, there will be occasions whensecureprovision for children aged 12and over wouldbe justified, the Home Affairs Committee believes that such a provision should bedependentuponappropriate and adequately funded secure care facilities beingputin place in accordance with the provisions of the Bull Report. Thiswould require the States to allocate sufficient capital and revenue fundsfor the purpose. It is notconsidered acceptable for either the YOI,whichaccommodates young offendersup to theageof 20, orGreenfields, whichis a remand centre, to be required to provide custodial facilities for the age group in question in the interim. Furthermore, the Home Affairs Committee believes that the Tri-PartiteCommittee,ofwhichthe Deputy of St. Martin is a member,should be allowed to continue to develop proposalsfor the provision and managementof a secureunit,together with other programmesnecessaryfor children displaying emotionaland behavioural difficulties, and to bringtheseproposals to theStatesas soon aspossible.The proposition is therefore rejected ontheabovegrounds.
25. T h isresponseshouldbe considered alongside those of the Education, Sport and Culture Committee and the HealthandSocialServicesCommittee. The seminar, Child Offenders – WhatWorks, scheduled for the 10th March, is designed to give States members a better understanding of the issues from both perspectives.

APPENDIX

WHAT DO WE KNOW ABOUT CHILDREN WHO OFFEND?

States of Jersey Police:

Table 1. – No. of Offenders Charged aged under 18 yrs old.

2002 2003

0 4 No of offe nde rs <18 yrs Old

<10

10-13 400 14-17 330500

89 81

222 267

Total 250 200

311 352

2002 2003

150 Number100

50

0

<10 10-13 14-17 Total

Age group

Table 2. – No. of Offences committed by under 18's

2002 2003

0 5 No of O ffe nce s

<10 900 10-13 800  14-17 700  Total 600

192 210

630 618

822 833

500

2002 2003

400 300 200 100 0

Number

< 10 10-13 14-17 Total Age G roups

Table 3 – Types of crime  <14 yrs old

Types of Crime <14 yrs old

150

100 2002 50 2003

0

Table 4 – Types of Crime 14-17 yr olds

2002 2003 Acquisitive 295 235 Against the Person 83 95 Traffic 69 65 Against Property 52 78 Public Disorder 62 81 Financial 32 1 Drug Offences 35 38 Other 2 25 Total 630 618

Type of crime 14-17 yr olds

350

300

250

200 2002 150

100 2003

50

0

Traffic Drug Other Acquistive Person Property Disorder Financial

Table 5 – Crime type as % of all crime

2002 2003

Acquisitive 50 38 Against the Person 13 19 Traffic 10 8 Against Property 9 14 Public Disorder 9 12 Financial 4 0 Drug Offences 4 5 Other 0 5

% of all crime

60

50

40 2002 30

% 20 2003 10

0

Traffic Drug Other Acquistive Person Property Disorder Financial

Parish Hall Enquiry

Table 6 – No. of PHEs for Children

1996 1997 1998 1999 2000 2001 2002 2003 Number 374 400 381 384 381 358 348 367

No of PHE for Children

420 400 380 360 340 320

1996 1997 1998 1999 2000 2001 2002 2003

Table 7 – Main Offences committed by those ordered to attend PHE

Youth Court

Table 8 – Total number of appearances of persons at Youth Court

1997 1998 1999 2000 2001 2002 2003 182 172 140 189 251 251 277

No of Appearances at Youth Court

300

250

200

150 No of Appearances 100

50

0

1997 1998 1999 2000 2001 2002 2003

NB: there is some double counting in these figures as a result of some children appearing more than once in the year.

Table 9 – Age of persons appearing at Youth Court

A g e o f C h ild re n A p p e a rin g a t Y o u th C o u rt

2 5 0

2 0 0

1 5 0 1 0 -1 3 1 0 0 1 4 -1 7

5 0

0

1 9 9 7 1 9 9 8 1 9 9 9 2 0 0 0 2 0 0 1 2 0 0 2 2 0 0 3

Table 10 – Offence Type

Table 11 – Sentences