Written evidence from the Magistrates Association

The Magistrates Association is an independent charity and the membership body for the magistracy. We work to promote the sound administration of the law, including by providing guidance, training and support for our members, informing the public about the courts and the role of magistrates, producing and publishing research on key topics relevant to the magistracy, and contributing to the development and delivery of reforms to the courts and the broader justice system. With 14,000 members across England and Wales, we are a unique source of information and insight and the only independent voice of the magistracy.

The Youth Justice Population and entering the system

1. How has the young offender population changed and what are the challenges in managing this group?

a)      What are the characteristics of those entering the youth justice system and how has the mix of offences committed by young people changed?

There have been very successful initiatives to divert the less serious cases involving children and young people (CYP) from the courts, but the consequence of this is that the cohort of those who do come to court often have complex needs and are involved in more serious offences.

Youth Courts deal with almost all cases involving CYP, and therefore see cases involving serious violence. Carrying and use of bladed articles (along with other weapons) by CYP have been raised as an ongoing, increasing concern by youth magistrates. In responding to these cases, it is vital that magistrates understand the underlying causes of serious violence, as well as the evidence base illustrating what interventions will be most successful in supporting CYP to change their behaviour.

The MA is concerned that the growth of county lines activity is leading to exploited CYP appearing before the courts as defendants for a range of serious gang-related offences. Youth magistrates are seeing an increased risk of CYP being exploited into gang and drug crime. There are two issues relating to this increase that we would like to specifically raise.

First is the current delays in relation to the National Referral Mechanism process. Our own members’ experiences are that conclusive grounds decisions now taking much longer than the 45-day recovery and reflection period in many areas. This is of particular concern to the MA because we are aware of referrals being made after the decision has been taken to charge a defendant, so that the process runs in parallel to court proceedings, which forces cases to be adjourned until appropriate information is made available to the court. Whilst this pause in proceedings will be entirely appropriate and necessary in many circumstances, from the perspective of the magistracy it raises a variety of concerns about the welfare of the defendant in question, and the support that is subsequently made available to them. 

This issue is particularly pressing in the context of the Youth Court, for the following reasons:

-          Children and young people who appear in Youth Court are typically vulnerable individuals, often with learning difficulties or mental health problems. Should the defendant be taken out of the court’s jurisdiction for the purposes of an NRM, it is essential that consistent, comprehensive and prompt support and supervision is provided. It should be remembered that once a CYP has interacted with the CJS, the local YOT will usually be involved, and therefore able to offer support and appropriate intervention to the CYP. It is important that it is clear how existing justice frameworks are expected to interact with NRM when they are both running alongside each other.

-          As part of its core principle of having regard to the welfare of young offenders, the Youth Court seeks to deal with cases as expeditiously as possible and without delay, in order to maximise the effectiveness of any court intervention made. It is therefore crucial that courts are kept informed of how the NRM is intended to operate and how long the process is likely to take. Where a conclusive grounds decision is not made, we are not clear as to whether a defendant would be returned to court, but would suggest that this should be done as a matter of urgency, given that the NRM will only provide a further two days of support in such cases.  It is also important that courts are provided with information about the progress of any referral.             

-          With respect to the unique form of criminal exploitation caused by county lines, many victims will have been groomed precisely because they have no previous contact with the criminal justice system.[1]  It is therefore likely that the child or young person in question will have no pre-existing relationship with a YOT or other relevant support service, making the need for immediate intervention and supervision from a YOT or related professional more pressing.  

We think it is important that there is recognition of the unique urgency of referrals that are made during the course of Youth Court proceedings. It is also very important that if a CYP is referred as a potential victim of modern slavery, that a named person is clearly understood to have overall responsibility for ensuring that the CYP is fully supported while waiting.

Second is the issue of the Section 45 defence for victims of modern slavery which is particularly relevant for this cohort of vulnerable CYP.

The anecdotal experience of our members around the use of Section 45 is mixed, with some magistrates never having seen the defence used, and others being concerned that it is being used more frequently - placing concerns over its appropriate use. The fact that magistrates often do not see the defence used may of course be because it is working as intended, with the Crown Prosecution Service deciding not to bring or continue a case when it is used. We would however welcome work to monitor the use of Section 45 more closely, and would encourage the review to explore this issue further. 

Following parliamentary questions on the matter[2], it is perhaps concerning that neither the Ministry of Justice nor the Crown Prosecution Service are able to capture data on the use of Section 45. We acknowledge that this may be a resource intensive exercise, but would welcome any initiatives to explore how this could be achieved.

Given that vulnerable children and young people will often depend on the Section 45 defence when they appear in a Youth Court, we would welcome more guidance and training for magistrates on its appropriate use. In addition, we would suggest more could be done to raise awareness of the recent R v MK [2018] EWCA Crim 667 ruling (which clarified that the defendant only bears an evidential burden to have a defence under Section 45) and its implications for prosecutors, defence practitioners and the judiciary. 

We are also aware that the identification of victims via the NRM process can be an important factor influencing a decision as to whether the defendant has a statutory defence under Section 45. It is therefore crucial that magistrates are fully aware of the NRM process, and other ways in which a defendant may illustrate that they are a victim as defined by Section 45. We would welcome clarification as to how and if the mechanism should interact with the use of Section 45 during court proceedings.

We believe it is essential that all criminal justice agencies are provided with sufficient training to identify criminally exploited and vulnerable CYP so they are diverted from prosecution and provided with the necessary support. 

b)      What is the experience of Black, Asian and Minority Ethnic offenders of the youth justice system and secure estate and what progress has been made in implementing the recommendations of the Lammy Review?

The MA is alarmed by the ongoing increase in disproportionality of BAME CYP entering the youth justice system, especially in relation to the custody rates. We are concerned that disproportionality continues to increase, and it appears that all the work being done in response to the Lammy Review has not yet produced substantive progress in resolving the problem.

We have been working with the MoJ and other stakeholders to respond to the Lammy Review, and have produced a report following a roundtable to discuss the issue which includes some practical recommendations.[3] Our report reflects many of the concerns raised by others, and supports proposals made elsewhere in relation to the importance of raising awareness about disproportionality by those working in frontline roles in the criminal justice system, the need for the collection of disaggregated data to identify where disproportionality is occurring (in particular in relation to the use of police powers and in Youth Court) and for key stakeholders to develop proactive strategies to resolve disproportionality. We have identified a number of actions that we will be taking forward, and will continue to prioritise this work.

c)       How effective is the youth justice system in diverting children and young people away from custody and what more needs to be done?

The MA support the positive work which has been done to divert CYP from the justice system where appropriate, but with an increase in serious violence, there are a significant proportion of cases that must be dealt with by courts. We are particularly concerned about the use of OOCDs in relation to violent offences, such as knife crime, and would argue that crimes of this nature are more appropriately dealt with by a court.  As identified in a recent joint inspectorate report[4] on OOCD work in youth offending teams, whilst work to divert children away from entering the criminal justice system is commonly recognised as a success story, it is difficult to prove this empirically due to the lack of systematic monitoring. The MA believe that scrutiny panels have the potential to provide such monitoring, and are well placed to obtain information on local outcomes in relation to OOCDs. It would, for example, be particularly useful to assess how many disposals are being used for under 18s for knife possession. Research into the impact of OOCDs on knife crime would also be useful, including effectiveness in relation to rehabilitation and deterring future violence.

For those cases that are too serious to be appropriately diverted from the courts, it is important that sentencers are given robust and appropriate alternatives to custody which can offer CYP the support in the community necessary for them to successfully turn their lives around. It is also important that sentencers are given flexible sentencing options to avoid custody where possible. For example, there are current restrictions in place for some cases where the only option is a Referral Order (RO) or custody. As a result of the successful early intervention work to divert CYP from court where possible, it is very common for those appearing in youth court to have a significant history of out of court disposals. However, the current statutory provisions create a binary choice for magistrates between custody and a RO where a CYP pleads guilty. The availability of other disposals would be beneficial in these cases to ensure court have the flexibility to respond appropriately. So, allowing sentencers to consider the appropriateness of a Youth Rehabilitation Order (YRO) would be sensible.

We also believe that providing sentencers with powers to review community sentences can support rehabilitation, and ensure appropriate interventions are in place. The legislation to allow this in of respect YROs exists in Paragraph 35 of Schedule 1 of the Criminal Justice and Immigration Act 2008 and we call on it to be enacted. Although we are aware of some areas introducing reviews by youth magistrates we believe it would be preferable for a statutory basis for these reviews to be in place. This would ensure a consistent approach is followed across England and Wales, without entailing some of the risks involved in an informal process – including those identified in the initial assessment of the Northamptonshire model. Providing a formal process for reviews of YROS would ensure full transparency, producing subsequent positive impacts on procedural fairness, legitimacy and confidence for all parties.[5] It might also be helpful to consider introducing powers for sentencers to review Referral Orders (ROs). Our members have expressed concern that in some areas there are considerable delays in convening RO panels, which is obviously detrimental to the orders themselves.

One area of concern that has been raised by our members relates to the impact of current delays in the criminal justice system on CYP specifically. Any delays have a disproportionate impact on CYP due to their age, and dealing with cases expeditiously is a key aim of youth justice. However there is a specific problem with delays between the time of the alleged offence and charging decisions where a CYP turns 18 during the delay, and consequently is dealt with in the adult jurisdiction by the time the case comes to court. This is very concerning, and we believe it should be a priority to resolve this issue.

We would also note that from the perspective of youth magistrates it is imperative that youth offending services are adequately resourced going forward, to enable them to provide consistent support and supervision to young offenders who commit violent crime. As criminal justice agencies have worked to divert young people away from the criminal justice system over the last decade, it is widely recognised that youth offending services now interact with a smaller but more complex cohort of individuals. It is therefore crucial that youth offending services have the resources needed to deal with the complex needs of these children and young people, and to provide robust community sentencing options for youth courts across all areas.

d)      Is the current minimum age of criminal responsibility too low and should it be raised?

n/a

Questions 2 & 3 on the suitability of the secure estate and resettlement of children and young people

The specific questions under the remaining two sections are out of the remit of the MA to comment as they relate to the secure estate. However we would like to make a general comment that the focus of all services supporting CYP in custody and the community must be to reduce reoffending, taking into account their welfare needs. It is therefore necessary for a completely distinct approach to be taken when supporting CYP, considering the unique needs of children.

Where magistrates decide that ordering a CYP to custody is the only option, they do so understanding the serious and long term impacts of such a decision. It is therefore vital that they can be confident that such a custodial sentence will be served in an environment that is fit for purpose for a CYP. It is therefore concerning that reports from HM Inspectorate of Prisons have raised significant concerns about the current secure estate. We would support a secure estate that ensured CYP were accommodated in small institutions that provide the necessary ratio of staff to CYP which would allow individual care and support. It is also important for CYP to be accommodated in a geographical location which allows them to retain positive family and friend relationships which are vital for rehabilitation. The provision in the secure estate for health care and educational services should take account of the complex needs of those CYP held in custody.

We would also like to note that successful resettlement relies on safe and secure accommodation being available for CYP on release, as well as continuity of care and support being provided in relation to health services and educational opportunities. 

Although the secure estate is outside the remit of the MA, we would note that a distinct approach is being developed by the Welsh Government, which includes a commitment to not fund secure schools and no longer ring-fencing funding for YOTs. It is important that there is continued engagement to ensure consistent service provision across England and Wales, and that there are clear processes in place to respond to those cases where both English and Welsh systems are involved.

Suitability of the Secure Estate

2. Is the secure estate a fit and proper place to hold children and young people?

a)      What impact has the changing nature of the population had on the management of the secure estate?

b)      What does a good quality custodial place for a child or young person look like and is there sufficient provision across England and Wales?

c)       What is the physical condition of the secure estate and is it an appropriate environment to hold children and young people?

d)      Do staff receive appropriate training and support and what more can be done to improve this?

e)      What other barriers are there to providing safe and decent accommodation in the secure estate and what more can be done to improve this?

f)        Is the use of force in the secure estate proportionate and properly monitored?

g)      How does the experience of children and young adults differ across the different types of secure custody and what lessons can be learnt ahead of the opening of the new secure schools?

Resettlement and rehabilitation children and young people

3. Is sufficient support available in the secure estate and community to ensure that children and young people do not reoffend and if not, what more should be done?

a)      Are children and young people able to access purposeful activity, education, healthcare and other support as needed whilst in custody?

b)      Is there good collaboration between the secure state, Youth Offending Teams, Local Authorities, Social Services and other relevant organisations?

c)       Is there effective release planning to ensure that children and young people have access to accommodation, training and education upon release and what more can be done to ensure they do not reoffend?

d)      What mechanisms exist to transition young people from the youth to the young adult/adult estate? What challenges does this raise and is more support required?

September 2109