Youth Justice Green Paper Consultation Response

Below is the text of my response to the Welsh Government consultation on the proposed Youth Justice Green Paper, from 9th December 2012.

The consultation documents can be found here.


My starting point is to commend the work done by successive Welsh Ministers in this field since devolution. Now is the time, I believe, for a restatement and reaffirmation of the principle which has previously been articulated by Welsh Ministers, that young people caught up in the youth justice system should be treated as children first and offenders second, in a manner underpinned by the United Nations Convention on the Rights of the Child.

I believe that the Welsh Government should focus its efforts now on ensuring that all young people are able to access their entitlements in the context of normalised services, that is, interventions that are core elements of the services provided by education, youth services, health and others. Where youth justice services are concerned I believe this should operate on the basis of minimum intervention and maximum diversion. The focus in this respect should therefore be to change and improve the system itself to provide for better outcomes for young people, rather than to look to change the young people themselves. For too many young people, once they become involved with youth offending services their involvement escalates rather than declines. It is critical that diversionary pressure away from the youth justice system, and where appropriate towards other services, continues to increase. I would like to put forward several specific suggestions in this respect.


Accommodation and substance misuse services
Improved social rights for young people in the youth justice system must be delivered through further action particularly to promote consistency of access to accommodation and substance misuse services. A small proportion of young people who are in contact with the youth justice system are homeless and many more are in unsuitable accommodation, including young people who are placed for extended periods of time in emergency or temporary accommodation. An even larger proportion of young people face severe difficulties in securing and maintaining tenancies, as part of a family or as individuals. Similarly, a small proportion of young people in the youth justice have an identified acute substance misuse need that requires timely access to specialist assessment and treatment, and many more young people are engaged in lower-level substance misuse that contributes to prolonged and problematic engagement with the youth justice system. In both of the above examples, there is need for Welsh Government to build upon work already carried out in this area to promote more consistent and more effective provision of services across Wales, where the results achieved in the most effective areas are emulated elsewhere. To be effective and equitable, this provision should be in the context of normalised services for all young people.


Use of custody
I would particularly endorse the achievements already delivered in this area, and the significant reductions in the use of custody in Wales. It is essential that the momentum of these reductions are sustained, and that Welsh Government works towards the explicit aim of bringing the use of custody to an irreducible minimum. No civilized society should regard the locking up of children and young people as anything but a matter for real regret. In this context, I would like to highlight the urgency with which Welsh Government must deploy information gained through the independent comparative study of high and low custody areas in Wales to ‘challenge and support areas with consistently high proportions of young people being sentenced to custody,’ as contained in the All Wales Youth Offending Strategy Delivery Plan 2009-2011. ‘Justice-by-geography’ has long been a problem for youth justice in Wales, with some young people going to custody for offences in one area which would not have resulted in such an outcome in another. If sentencing in every part of Wales could be brought in line with sentencing in the best, then by itself that would make a significant contribution to achievement of key outcomes outlined above. Building on this work can ensure that youth offending services in Wales move towards a situation wherein custody is seen as a fundamental failure of the duty to safeguard children and young people from harm and to which there is a preferred solution in almost every case.

Further action that follows from this should include standardising and systematising the deployment of custody panels in every YOS area in Wales. Their remit must include reviewing the plans for children and young people most at risk of custodial sentencing and to re-examine each case where a custodial sentence is imposed to identify the means by which this could have been avoided. The process may benefit from utilising techniques developed in the National Health Service for ‘root cause analysis,’ an iterative process that may help Youth Offending Services to move continuously away from the use of custody, and towards diversionary solutions. The custody panel process must draw extensively on the perspectives of individuals who are independent from the youth offending services, as well as within it, and must ensure that the views and the understanding of the young person have been appropriately sought, listened to and taken into account. This is an example of where a focus on changing the system, rather than looking to change the individuals with whom the service works, is likely to lead to greater improved results for more people.


Breach of statutory orders
Specific action is required to address issues surrounding breach of statutory orders, and particularly the use of custody for breach. The purpose of a statutory order is to develop an agreement with a young person that will help them to stay out of the criminal justice system, developing positive relationships and behaviours that will help them to move on. If a young person is given an order with which they cannot comply, that they do not understand or do not have the necessary support to fulfil, then the costs to that young person, as well as to their community and to wider society, is enormous. Yet breach offences are at a shockingly high level, and include a number where a custodial sentence is imposed where no further offence has taken place. This means that too many orders are not helping young people to stay clear of the youth justice system but are effectively prolonging or even escalating their involvement. This benefits neither the young people nor the credibility of the youth justice system. Welsh Government must support youth offending services to work with sentencers to reduce the incidence of breach offences to a minimum. Such action could include, for example, a protocol agreement with sentences that custody would not be used for breach where no further offence has been committed, starting with young people under the age of 15 and progressively raising that age over time.


LAPSO and looked after child status
The green paper proposes the extension of looked after status to young people who have been sentenced to custody without being securely remanded. I am fully supportive of the aim of these proposals, to ensure that young people’s needs are effectively met whilst they are in contact with the youth justice system. However, I am not fully clear as to exactly how looked after status would affect young people, and indeed whether there is evidence that:
• Those young people who do have looked after status have their needs more effectively met whilst in contact with the youth justice system.
• That an entitlement to looked after status would be a further disincentive to use of custody.

I would also be concerned that looked after status may, for some people, disrupt positive family and social relationships that they do have, or cause additional distress and concern to young people where the benefits to them may not be completely clear. I am therefore not opposed in principle but I am not convinced of the benefits, and particularly where I feel efforts may usefully be put elsewhere, preventing custody for young people in the ways I have proposed above. In light of this I would welcome a more clear statement from Welsh Government as to the aim of this proposal and the evidence on which it is based.


Anti-social behaviour
The May 2012 UK Government White Paper ‘Putting Victims First’ proposes the replacement of Anti-Social Behaviour Orders, along with a number of other orders, with the Crime Prevention Injunction and Criminal Behaviour Orders. There has been a positive move in Wales towards regarding ASBOs as a last resort where all other options have been exhausted, and it is vital that any replacement of the ASBO is regarded in the same way. Welsh Government must take a lead in working with devolved and non-devolved agencies to ensure that the new orders are not imposed on children, in a manner consistent with the concluding observations of the United Nations Committee on the Rights of the Child in 2008. I believe that there is a great deal of scope for addressing anti-social behaviour in ways that do not require a criminal justice response. The RSA, for example, has put forward the idea of ‘community safety first aid’ whereby members of the community are trained in simple skills, informed by experts, working in a similar way to first aid training or ante-natal classes.  I believe there are already examples where this approach is being applied, particularly in the field of mediation, and initiatives working in areas affected by gang violence. Welsh Government can draw upon these examples and others to further reduce the number of young people who are criminalised. I welcome the reduction in the number of arrests of young people across the four police authorities in Wales that has been highlighted by the statistics published recently by the Howard League, a reduction of over 40% from 15,243 in 2008 to 8,953 in 2011.  However, this is still equivalent to the arrest of one child in Wales every hour and further reductions on a similar scale should be sought in the years to come.


Youth courts
I would be keen to see Welsh Government take a further role in developing innovative ways of diverting young people from the youth justice system, and specifically to look to commission an ‘young people’s court’ experiment. This can build on the experience of initiatives in the US, such as those who are members of the National Association of Youth Courts. I am also aware of an under-reported project along similar lines in Liverpool, which may provide a helpful UK example. From my understanding of how such initiatives might translate to a Welsh context, the key elements of such an experiment should include:
• A voluntary referral process at a diversionary stage as an alternative to formal charges, where the only sanction for non-compliance is a return to the original point of referral.
• Trained young people volunteering in the roles of judge, jury and counsel, and these volunteers must include young people with experience of the youth justice system.
• Comprehensive support and written guidance developed with extensive consultation led by children and young people with assistance of ‘expert’ input.
• A focus on understanding the circumstances, needs and ambitions of the young person, and supporting them to repair and improve their relationships with their community.
• Consideration of the use of timebanking as the means by which the court is operated, wherein both young people referred to the court and the volunteers earning time credits for their participation.


I look forward to seeing Welsh Government’s plans develop, and should there be any further information I can provide on any of the above points please do not hesitate to contact me.


Mark Drakeford AM
Cardiff West