Part 2 – Young Offenders
43.Part 2 of the Act makes provision in relation to secure colleges, a new form of youth detention accommodation with a focus on education. It also makes a number of amendments to sentencing legislation in relation to offenders who are under 18 (‘young offenders’).
44.Secure Colleges - A consultation published in February 2013, Transforming Youth Custody: Putting education at the heart of detention(11), set out plans to increase the focus on high quality education in youth custody, reduce the cost of youth custody and contribute to reduced reoffending among young people leaving custody.
45.On 17 January 2014, the Government published its response(12) to the consultation, and its plans to create a pathfinder secure college, enhance education provision in young offender institutions and improve the resettlement of young people on release from custody.
46.The Government’s response set out its intention to legislate to give the Secretary of State powers to provide secure colleges and to make contracts with other persons for them to provide secure colleges. It is intended that secure colleges will provide a broad curriculum with the aim of supporting young people to refrain from reoffending once released. Sections 38 – 39 and Schedules 9 and 10 implement the changes announced.
47.Youth cautions and conditional cautions: involvement of appropriate adults – To help safeguard the rights of children in the youth justice system the Government is amending the Crime and Disorder Act 1998 to ensure that 17 year olds, like 10 to 16 year olds, are given a youth caution or youth conditional caution in the presence of an appropriate adult.
48.A youth caution can be used as an alternative to prosecution in certain circumstances for any offence where the child admits the offence, there is sufficient evidence for a realistic prospect of conviction but it is not in the public interest to prosecute. A youth conditional caution is a youth caution with conditions attached to it which may, for example, include a requirement to pay a financial penalty or a requirement to attend at a specified place for a specified number of hours. Where there is no reasonable excuse for non-compliance with those conditions criminal proceedings may be brought. For 10-16 year olds an “appropriate adult” must be present when a youth caution or a youth conditional caution is given. An “appropriate adult”, for example, may be a parent, guardian, local authority social worker, from a voluntary organisation or some other responsible adult aged 18 or over who is not a police officer or employed by the police.
49.The Government believes that all young people should benefit from the presence of an appropriate adult and so section 41 of the Act amends the Crime and Disorder Act 1998 to remove the age restriction.
50.Duties of custody officer after charge: arrested juvenile – The High Court ruling in R (on the application of HC) v (1) Secretary of State for the Home Department and (2) Commissioner of Police for the Metropolis (2013) EWHC 982 required that PACE Codes of Practice C and H be amended to provide 17-year olds with an appropriate adult and for the police to be required to inform a parent or legal guardian of their detention, as is the case with 12 to 16 year olds in police custody. The Government accepted the High Court ruling and subsequently made the necessary changes in October 2013. However, recognising that there remain provisions in primary legislation which treat 17 year olds as adults, the Government launched an internal review to examine these in the light of the High Court ruling.
51.The review reported to the Home Secretary in October 2014. Its principal recommendation was to amend all provisions within the Police and Criminal Evidence Act 1984 (“PACE 1984”) which treat 17 year olds in the same way as adults as soon as a suitable legislative vehicle was found. An opportunity to make an amendment to change the definition of ‘arrested juvenile’ in Part 4 of PACE 1984 to include a person aged 17 became possible in the Criminal Justice and Courts Bill – see section 42.
52.Referral orders - A referral order is an order available for young offenders who plead guilty to an offence whereby the young offender is referred to a panel of two trained community volunteers and a member of the youth offending team. Compulsory conditions require it to be given in most circumstances where the young offender pleads guilty for a first offence. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed restrictions on the repeated use of the referral order with the aim of promoting its use for the delivery of restorative justice conferencing.
53.The offender must agree with the panel a contract of rehabilitative and restorative elements to be completed within the sentence. Where the victim and the offender consent, the panel can be used to deliver a restorative justice conference. A restorative justice conference offers victims the opportunity to be heard and to have a say in the resolution of offences, including agreeing restorative or reparative activity for the young offender.
54.The Government is concerned that where the court deals with a breach of a referral order contract, or a further offence, the original referral order is automatically revoked. The Government believes that, where the court considers it appropriate, the original referral order should be allowed to continue in order to enable the restorative justice process to be completed. Sections 43-45 give effect to this.