In depth: 'Once-in-a-generation' reform of youth justice system

Early intervention is at the heart of a blueprint published by the government this week for ‘once-in-a-generation’ reform of the youth justice system. According to the Ministry of Justice, eight out of 10 prolific offenders committed their first crime as a child. Two-thirds of those released from custody reoffend within a year.

‘Too many young people are being drawn into crime, with devastating consequences for victims, communities and their own futures,’ justice secretary David Lammy said. Reforms in the Cutting youth crime, changing young lives white paper ‘lay the foundation to intervene far earlier, support families, and tackle the drivers of offending so fewer young people become trapped in cycles of crime, creating safer streets and fewer victims’.

Media headlines have focused on parents and carers facing tougher consequences if they fail to comply with parenting orders that the court considers key for their child’s rehabilitation or to prevent reoffending.

‘This is not about punishing good parents trying their best,’ the white paper says. ‘But to preserve confidence and faith in the youth justice system, it is important that there are consequences for those parents who wilfully do not engage or intervene with a court’s plans for a child that is causing misery or harm to others.’

The ‘problem-solving’ court approach that has proved successful in the family arena (Family Drug and Alcohol Court) and delivered encouraging results for adults in the criminal magistrates’ court (Intensive Supervision Court) will be replicated for children in the form of new youth intervention courts. Children sentenced to youth rehabilitation orders would be required to attend monthly judge-led progress reviews throughout their sentence, with the Youth Justice Service providing wraparound support to address the root causes of their offending behaviour.

'There needs to be a shift from criminalisation – which long has been shown to set a child onto a path of crime – to rehabilitation. Protecting society and protecting childhood should not be competing aims, and children should not be defined as criminals at a very young age'

Kirsty Brimelow KC, Bar Council chair

The white paper lays the groundwork for raising the minimum age of criminal responsibility (from 10), which the government notes has been raised to 12 in Scotland. Northern Ireland is consulting on raising the threshold from 10. The UN Committee on the Rights of the Child recommends that the minimum age be set at 14.

Bar chair Kirsty Brimelow KC set up a working group to explore this very issue. She said: ‘There needs to be a shift from criminalisation – which long has been shown to set a child onto a path of crime – to rehabilitation. Protecting society and protecting childhood should not be competing aims, and children should not be defined as criminals at a very young age.

‘Knowledge about child development has moved on substantially, yet the minimum age of criminal responsibility remains at 10 years old in England and Wales. It is the youngest in Europe and we are an outlier in prosecuting young children. The Bar Council is producing a report examining the minimum age of criminal responsibility over the next few weeks and we look forward to working with the government on youth justice.’

Reform of the criminal records regime is also on the cards. The white paper says England and Wales have some of the strictest disclosure requirements across comparable jurisdictions when it comes to childhood offending. Some children commit serious offences that pose potentially long-lasting risks that the public needs to be protected from, but the regime ‘should also reflect children’s developmental stage and greater capacity for change’.

The government rules out ‘wholesale sealing’ of all crimes committed as a child. ‘However, we will examine whether the disclosure period for childhood offences under basic checks (i.e. for roles not involving work with children or vulnerable adults) could be shortened. We will also review the list of offences which must always be disclosed for sensitive roles,’ the white paper says.

Unsurprisingly, reform will not happen overnight. The youth intervention courts are being piloted and the first site may not be up and running until next spring.

A major review of the function and purpose of criminal courts for child defendants has been commissioned. The review team, to be led by Professor David Ormerod, will report back next summer.

There will be plenty of developments for lawyers to look out for before then. The government will set out proposals for fundamental reform of the youth out-of-court resolution framework this autumn and begin consulting on reforming the childhood criminal records regime by the end of the year. The government is also working with the legal sector on new specialist training requirements for lawyers representing children.