Rebalancing Youth Justice

Professor Rod Morgan, former chair of the Youth Justice Board, gave the final presentation in the 2006/2007 New Developments in Criminal Justice seminar lecture series. Professor Morgan highlighted that there has been a 26 per increase in the number of children dealt with by the youth justice system in the last three years. He concluded that criminalising children is 'often counter productive, and for that reason we need to think more about resorting to the criminalisation label less'.

Professor Rod Morgan
Tuesday, 22 May, 2007

As I arrived, my old friend Louis Bloom Cooper who’s seated at the front, I hope he doesn’t mind me mentioning him, said to me I don’t think much of your title, I hope it doesn’t mean what I think it might mean, or something to that effect. That prompts me to emphasize what it doesn’t mean. Rebalancing criminal justice, or that emphasis, is a title that’s been used rather frequently by the Prime Minister. And I absolutely do not mean what the Prime Minister sometimes has meant by rebalancing criminal justice. If I can remind you, what he tends to say is that the law abiding majority are my boss and I’m going to rebalance the criminal justice system in favour of the law abiding majority, with a Manichaean good and evil implication, that victims and offenders are in separate boxes. And that somehow their interests are competing. And if you’re going to attach greater value to the interests of victims, the law abiding majority who are my boss that somehow, you’ve got to diminish the rights of defendants, or offenders. Or somehow change the protections that might be attached to them.

I absolutely reject that approach. And I reject it, because I’m going to be talking about youth justice. And one of the things that everyone needs to remember about young people who get into quite a lot of trouble, is that if you analyse their life histories, they are not just offenders but they are typically multiple victims also. And most young people who commit offences commit them against other young people. And most young offenders have, before their own depredations, been the victims of both other young people and many of the adults with whom they’ve had contact with in their short lives. So this notion that, somehow victims and offenders are in separate boxes and that they’re in scales that we have to weigh, doesn’t strike me as being an appropriate approach to the issues that face us.

There is another meaning, which the Prime Minister sometimes attaches to rebalancing criminal justice. He has frequently said that his proud boast is, in relation to criminal justice issues, that most of the things that he’s achieved have been achieved by bypassing the criminal justice system. Which he quite often characterises as not fit for purpose, although he didn’t of course use that phrase, although our present Home Secretary has, in relation to one institution. But he quite often describes it as Dickensian. And one of the aspirations stated under that is, that we need to go for speedier, smarter summary justice, which is the latest illustration of how he wishes to bypass the system in order to achieve some species of justice. You may think when you’ve heard what I’ve got to say that, that aspect of rebalancing is something that I find attractive in some degree. I actually have doubts about the way it’s likely to be interpreted, but I do want to rebalance in one sense and I hope that comes through from my remarks.

Now, let me emphasise the future, that I am necessarily preoccupied by why I am not any longer the Chair of the Youth Justice Board. Because my departure arose out of the fact that mostly behind the scenes, but occasionally straying into public, I challenged aspects of government policy. About which I became increasingly unhappy. And it’s about why I was why I was unhappy, that I wish principally to speak. But before I do and so that you don’t imagine that I am overwhelmingly critical about youth justice system. Let me say that wouldn’t have taken the job in 2004, if I hadn’t thought that aspects about youth justice system are rather good.

There is much in the ’98 Act, which is the principle Crime and Disorder Act 1998, which is advantageous and which I commend. For example, the fact that youth justice is the only part of our criminal justice system that is genuinely devolved, with decision making essentially being made by the localities, is a rather good aspect of it. Because youth crime ecologically varies hugely from one area to another, it takes many different forms. And the great strength of a devolved system, in my judgement, because operationally youth justice is delivered, if you can put it in those terms, by multi disciplinary, multi agency youth offending teams, 157 of them in England and Wales. They’re accountable to the local authorities and they’re managed by the local authorities.

It’s a frequently made error that the Youth Justice Board manages the system, it doesn’t. The Youth Justice Board oversees it. It collects data regarding it. It monitors it. It reports to Ministers about it. It tries to promulgate good practice. But it doesn’t actually manage it. It is managed locally. And there is great diversity in the way in which the guidelines that are sometimes offered by the Youth Justice Board are interpreted from one area to another. And that results in some interesting good aspects of the system. For example, we currently have before the House and Offending Management Bill proposing changes to the Prison and Probation Services. And one of the justifications for the changes before the House, and we still wait to see whether it’s going to get through, is that we want to promote, so the government says, a mixed economy and the delivery of services. By mixed economy I mean that certain things might be delivered by the voluntary sector, or the local state, as well as the central state and by, in some senses, the commercial sector.

Now, interestingly youth justice is already a flourishing mixed economy and those decisions are made locally. So for example, there are lots of youth offending teams who have contracted out, almost overwhelmingly to the voluntary sector, both locally and to national agencies, a great deal of what they do. It is a flourishing mixed economy, which has grown organically as a result of local managers deciding how particular services might best be delivered; early intervention, intensive supervision, and so and so forth. It’s not all delivered by the so called youth offending teams. A good deal of it is delivered by other agencies. And something else that strikes me as beneficial.

I despaired when I was Chief Inspector of Probation, the fact that the probation service which grew out of the voluntary sector. And the efforts of individual volunteers historically, that the probation service had, I have to say this, largely relinquished the services of volunteers. Indeed, there was in my judgement in the National Probation Directorate a rather arrogant presumption, that services could only any longer be delivered by the professionals and that there weren’t volunteers out there on which to draw anyway. I don’t agree with either proposition. And it’s amply demonstrated by our youth justice system. There are more serious voluntary effort engagements by part time volunteers, acting as appropriate adults, mentors, sitting on referral panels etc, working in the youth justice field, than there are professionals. And we know from the experience of most of the YOTs that they don’t any longer have to advertise to recruit such people. There is a huge wellspring of people who want to do it. But the lesson from the youth justice field that I would ask you to bear in mind is, that the use of volunteers is not a free good. Voluntary effort only works if they’re recruited, trained, professionally supported and nurtured. And then you can keep them. They can and are capable of giving really good service. But if you imagine that it’s a free good, the turn over is rapid and the service is often poor.

Victims. More and more work is being done by victims in the youth justice system, although much more needs to be done. And at the heart of the referral order and I’ll come back to this for those of you who don’t quite understand what a referral order is, is the idea that the individual offender should make reparation, in some sense, to the community and to the victim. And although the direct involvement of volunteers in that process is still not as I would wish, we need to promote much more of that. It’s at the heart of the exercise and I regard the referral order as something of the jewel in the crown of the reformed youth justice system, not least, because the Home Office data suggests that not only are victims more satisfied if they do get involved. But the reconviction data suggests that it’s much more effective, than virtually anything we do, i.e. the reconviction rate is much lower than you would otherwise expect given the offences and the pre-convictions of the persons.

Okay, so those are some of the things that meant that I regarded it as an honour to be invited to Chair the Youth Justice Board and why I took the job. But my involvement over the next two to three years, I didn’t quite complete three years when I resigned in January, made me increasingly worried about two principle trends. The first of which, is our youth of custody. We have, as probably everyone in this room knows, a record prison population. Everyone knows that. It gets a lot of publicity. What is less well known is that we have a near record high number of children and young people in custody. And this was particularly pertinent for me and my role at the Youth Justice Board, because although the Youth Justice Board has what you may think is rather a large budget of something like £420,000 per annum, where does it go? 70% of it goes on the cost of custody. Because the only operational function that the Youth Justice Board fulfils is the commissioning of custodial places for those children and young people who were caught and their individual remand and sentencing decisions said they must be in custody. And that’s where 70% of the budget goes. And we have a record number.

And the Youth Justice Board, and I inherited this but I happily endorsed it, has a reductionist aim. Of course, the Youth Justice Board doesn’t determine how many children and young children are in custody, the courts do. But it nevertheless seeks to influence that decision, not least by building confidence in the community based alternatives. And the Board has a strategic aim to reduce the number of children and young people in custody. Currently the aim is stated in the business plan of the Board as reducing it by 10% by 2008, from a 2005 baseline. And the Board is not succeeding, indeed, it’s going backwards, so if you look at the last annual report the population increased by 4%, it didn’t decrease, And at the moment the population is even higher than that period for which the board was reporting on. And I have to tell you that the reason why we have that reductionist aim is, not because system overcrowding is a dreadful blight, and much of what we in the Board were trying to do positively in custody, is being undermined by system overcrowding as it always is. It’s not because the system is overcrowded, in any case, and perhaps in debate you’ll want to put this to me. If we have the commissioning responsibility… I keep using the term we although it’s no longer appropriate for me to do that.

If the Board has the responsibility to commission, why didn’t it provide additional places, so that it is not overcrowded? Because after all there are lobbies of opinion in this country that think that more children and young people should be locked up, not fewer. And the answer to that question is that, having reviewed all the evidence we are not persuaded. There are, of course, some children and young people who have committed such dreadful offences, are such persistent serious offences, despite all efforts to persuade them to the contrary and to support them in the community, that they’ve got be taken out of circulation for a time. But the Board is not convinced that there are twice as many young people who fall into the category that they have to be locked up, than was the case ten to 15 years ago. And that is the scale of the increase, 100% increase on the numbers roughly 15 years ago. You may ask me, well, how many fewer do you think there should be? I’m never going to answer that question. Many fewer, but I can’t put a precise figure on it. And the Board, this is revealing a behind the scenes debate, wrestled with the fact that a year ago, it had to decide whether to retain this reductionist target.

At the same time, it was having to go the Home Office to ask for extra funds to provide the additional places, which the current trend suggested was needed. And some people quite reasonably said, well how can we have this reductionist target if we’re signally failing with it and we’re asking for additional funds to provide more custodial places, because it’s our statutory responsibility to provide them? And various approaches were made to try and debate that. I’m not going to go into detail. In February of last year, the Home Office published a five year plan. And if you look at paragraph 3.31 you will see that the Youth Justice Board’s reductionist target is repeated in the Home Office five year plan. And I said to my colleagues on the Board, I take that as being an implicit endorsement. We must look now to Ministers in their various statements, written and oral, to give us backing for that reductionist target. Well, I have to say to you, I can’t look at any ministerial statement made orally or in writing, since February of last year when the five year plan came out, which did give backing to that target. And thus the numbers continue to grow and I’m not optimistic in the present time.

So that was one trend. The second trend is less widely known and understood, but I regard it as just as serious. And that is, the greatly increased number of children and young people that we’re criminalising in this country. During my watch at the Youth Justice Board, the number of children and young people criminalised and if you want to go into the definition of that we can do so in due course, increased by 26%. And that’s at a time when all the evidence suggests that volume crime, including that which is down to young people, has fallen by some 40% in the last ten, 12 years. Now, I know that not all categories of offending have fallen. Street robbery and some offences of violence have almost certainly risen. But volume crime, mostly property crime, criminal damage etc, burglary, theft of cars, theft from cars has significantly fallen, including that which is down to young people. But we are criminalising more and more young people.

Of course, the pressures here are very political. Every MP, and I don’t think it’s going to matter what the character of the next administration is, whether it’s New Labour, Conservative or a coalition, I suspect that the emphasis on antisocial behaviour is not going to go away. Because the public at large is not, generally speaking, persuaded that volume crime has fallen. And are highly preoccupied by, what I’ll generally call, uncivil behaviour in public places, now generally known under the rubric of antisocial behaviour. And I can’t see any administration in the near future, not being preoccupied by that issue, and withdrawing the panoply of the tools that have been introduced, both in the ’98 Act and since, to respond to it.

This 26% increase is interesting. If I can illustrate it, one of the things that happens when you resign, you become unemployed as I now I am, is that people invite you to do one or two things that you’ve never done before. And one of the things that I’ve been invited to do is to make some television programme about youth justice. And in fact, I’ve just completed one that will be shown I gather on the 22nd of June. And I’d selected the areas where we filmed and I’ve selected the areas because of this particular fact, the variation in it from one part of the country to another.

We have filmed in West Yorkshire and South Wales, both rather interesting areas. For those of you not to good at geography, West Yorkshire includes Leeds and Bradford, so major industrial cities with major problems, which will include all the problems with which MPs are preoccupied. South Wales, likewise a formally heavily industrial mining area, which is now something of a rust belt zone with significant social problems; poverty, unemployment, rather similar. But the criminalisation trend is very different in those two areas. West Yorkshire, astonishingly, has increased the number of children and young people criminalised by 61% over the last three years. South Wales, it has reduced by 3%. And I was not entirely clear why there were such differences, but I’m pleased to say that I knew something about South Wales and that is, that in South Wales there is a Chief Constable who takes the public view. It’s a woman. I regard that as quite significant, as well, incidentally. Barbara Wilding in South Wales has made various public statements saying that she regards the use of certain tools in the antisocial behaviour toolbox as very much a last resort and an indication of failure if they have to be resorted to. And has also suggested that she doesn’t think that arresting young people, for certain sorts of behaviour, is necessarily the most constructive way of dealing with antisocial behaviour. And there is a panoply of alliances in South Wales, with a voluntary sector, with volunteers on very difficult estates, where a slightly different strategy, from that being adopted in the north of England, is being used. We can go into the detail of that if you would like.

Now one of the issues that will certainly be prominent in the programme is I’ve been rather public, and I haven’t endeared myself to some Ministers over this, by suggesting that some of the aspects of managerial-ism that now characterises the criminal justice system, have had and are having perverse consequences. And the trend that I particularly focussed on is the Home Office offences brought to justice target. Those of you who didn’t read the political party manifestoes very closely at the last election and the preceding one, may have missed that one of the pledges that the government gave in their last manifesto, was that they were going to increase the numbers of offences brought to just. And we’ll come back to what that means, from something like 1.1 million to 1.25, I think it is, by 2008. And it’s the government’s proud boast that they are well ahead of target. Indeed, the number of offences brought to justice is already exceeding 1.4 million a year ahead of the target date. So we’re well ahead of target. And this is described as a great achievement, because what it means is, to use the jargon, we’re closing the justice gap, that offenders are no longer being able to offend with impunity, but we’re bringing them to justice. Now, you’ve got some slides and let me just illustrate one or two things.

One of the things that we’re doing with young people now, and this is partly government design, is that those kids that are drawn into the criminal justice system in any shape or form, whereas before the ’98 Act, two thirds of them were dealt with pre-Court by way of cautions, now it’s more like 50%. So more kids are getting prosecuted, a greater proportion of them. And the overall number being drawn into the system as I’ve illustrated, has greatly increased. So there are many, many more prosecutions now than used to be the case. And this partly a matter of government design, because those of you who recall the debate about the ’98 Act was, that it was argued that many young offenders were getting repeat cautions and therefore able to offend with impunity. There wasn’t much being done to address their offending behaviour. That wasn’t everywhere the case, but it was an argument, which had some substance. And thus we have, sorry to use the word, what the government did was to use a high level of automaticity into the system. You can’t get multiple cautions now. You get a reprimand and unless there’s a certain lapse of time you get a final warning. And unless you get a further lapse of time, a third offence no matter how minor it is, you’ve got to be brought before the court. No discretion, at least in terms of police interventions. That’s the doctrine. And actually if you don’t, as they say cough, at the first interview, if you don’t admit it, you wont be eligible for a reprimand or a final warning, so you might be brought before the court immediately, no matter how minor the offence. So the number of prosecutions has hugely increased.

Now, the offences brought to justice target. We’re well ahead of target. But the question I want to raise in your mind is, is this such a huge achievement as it’s been portrayed? How is it being achieved? And look at some of the figures; recorded crime, convictions. The number of people who have been brought before the courts and convicted, you can see, is flat-lining, it’s not increasing. It’s pretty steady. So how are we achieving this huge increase in offences brought to justice? Well, there’s the line for cautions for adults, here’s the line for final warnings for juveniles. What we’re doing, I would argue, is we are achieving the target.

Every police force has it within every police force. Every basic command unit has it and within basic command units, targets are being given to individual teams. And that’s indeed, a significant part of the television programme if you choose to watch it. My argument is, and I’ll go into the detail if you like, is that the police find it quite easy to meet these targets. What they do is they pick a lot of, what I call, low hanging fruit, of which the easiest are kids in groups in public places doing relatively minor things. If you arrest a child and that child gets a caution, one of the two types, or is brought before the court, that counts as an offence brought to justice. And it doesn’t count any less or more bringing before the court a serious adult engaged in persistent offending of a very serious nature. They count the same. There is no relationship with seriousness. And so if you’re a basic command unit police officer and you’re being leant on, and incidentally, you’re getting performance related pay, then it’s quite easy to hit the target. And the easiest way to do it is to arrest quite a lot of kids. And I have to say to you that over the last few years, I’ve addressed many judicial audiences, mostly Lay Magistrates, but sometimes District Judges and Crown Court Judges. And one of the things Lay Magistrates repeated tell me, and on the television programme I’ve got the Chairman of the Magistrates Association Youth Court Committee saying it on camera, that a lot of young people are now coming before youth court for minor offences, that in the opinion of the Magistrates Association should never had got there and could have been dealt with either in situ or pre-Court. So my principle argument about this is that this particular Home Office target is having perverse consequences, which needs to be addressed. Perhaps we can come back and debate that.

May I just conclude with one or two suggestions of things that I think might be done to change the system and to justify my rebalancing. The first thing I want to suggest is and Rob Allen and Richard, an erstwhile colleague from the Youth Justice Board has recently written a pamphlet which is being debated. It suggested that youth justice should be as much the responsibility or wholly the responsibility of the DfES, formerly the Home Office and now the Minister of Justice, to which it’s just been transferred. Of course, locally in our devolved system, there is engagement by social services, by education and health, as well as the police and probation in youth offending teams. And I have to say, it would be beneficial if the DfES was directly involved in funding crime prevention in the youth justice field and had some responsibility for engagement.

Because I have to say, as an ex-Magistrate for many years, and as a member of the Parole Board and all the other things I’ve been involved in, that if we’re serious about preventing youth crime. educational policy is as important. If not more important than anything we do in the Youth Court. Of course, the Youth Court is very important. But if you look at the characteristics of kids who get into serious trouble, they’re disengaged from education. The fact that we’re failing large numbers of young people who are either excluded from education or are not attending, often with the collusion of the schools, in which they are often disruptive, is a huge canker in our system. And we’ve got to have tie-in and engagement of those policies to think seriously how we prevent crime.

Secondly, local government finance, this is a tricky one. There are some perverse consequences about the way we finance the whole system. If young people end up in custody, it is hugely expensive. If they’re in a local authority children’s home, do you know what it costs a day? It costs approaching £200,000 per place, per young person. If they end up in a YOI, a Young Offenders Institution for 15 to 17 year olds, it costs now £55,000 per annum, per place. It’s hugely expensive and I’ve told you where the majority of the Youth Justice Board budget goes. If kids end up in custody, central government pays. We have to find a way of rebalancing how we spend money to prevent crime. All the evidence suggests that if we make greater investment earlier on, intervening with children at risk who are already displaying all the symptoms of getting into serious trouble, then we would save a lot at a later stage. The question is how do we switch the budget? And the problem is the money is spent in completely separate boxes and we don’t currently have a way of incentivising local authorities to invest more in early intervention. And they’re largely responsible for that area, because they don’t have to pick up the tab for the cost consequences of them failing to do that. So if we’re going to staunch the supply of kids coming through in custody somehow, we’ve got to shift resources. And you may have some ideas about that. But it’s a trick that someone, or persons, in Whitehall have to think about.

Thirdly, this offences brought to justice target. It’s got, in my judgement, to be reframed and rebalanced and we’ve got to change the counting rules. I’m not totally opposed to targets. They usually have some perverse consequences. But seriousness should be built into the equation somehow, so that picking up kids for minor offences is not incentivised. And frankly, we’ve got to reinvest a degree of discretion in our police officers. If we’re going to be serious about neighbourhood policing, if we’re going to engage the public, and we’re going to have community involvement in that, the police have got to have a degree of discretion as to when it’s appropriate. I can tell you legions of stories where kids have been brought into the system, brought before the Youth Court, which no one thinks was sensible. But what is repeatedly pointed out is that the national crime recording standards and the ODTJ rules, etc, mean that there isn’t that discretion there.

Fourthly, there’s this emphasis now on enforcement. The argument is the Courts are not going to have confidence in community penalties, unless they’re rigorously enforced. I don’t disagree with that. But I want to emphasis something with a slightly different phraseology than enforcement, which I would call enabling compliance. If I can illustrate it, many of the kids who get into trouble lead absolutely chaotic lives. There’s no structure in their lives. There’s no discipline in their lives. There’s quite often a complete lack of parental attention, etc, there’s no structure there at all. So suddenly to make them subject to an extremely complicated Court Order, and if we take my illustration of the asbo, those of you who have any familiarity with this field, asbo’s have quite often 15 to 20 prohibitions. Or many of the community penalties have lots of requirements. Saying to a kid who’s completely out of control, who has no discipline in their lives, if you don’t do about a dozen different things, if you breach anything you’re going to come back before the court and that’s it. We’ve got to talk about enabling compliance. The demands have got to be sensible in the light of the circumstances and the individual. And we’ve to enable them to comply, because frankly, if we simply, routinely enforce in a mindless fashion, we’re going to have more and more kids locked up. The community penalties will fail. And one of the drivers of the increased custodial population are kids, who are entering custody by the back door of breach of extremely complicated community penalties.

I don’t believe that any administration that we’re likely to get in the near future, is going to change the age of criminal responsibility, to something akin to that in most Western European countries, where it’s something like 12 to 15, although I notice that Mr Sarkozy has already said that he’s thinking of reducing the age of criminal responsibility in France. So it may not go in the same direction. But I can’t see any administration we’re likely to get in England and Wales, changing ours from ten. But what I do think is politically feasible is, to persuade most people that we should be highly parsimonious about the number of children under the age of 14 who we prosecute. Most people in the system would regard that as very sensible.

And let me finish with a bit of evidence. If we dealt with more offending behaviour and antisocial behaviour in situ, and I’m thinking about looked after children in residential accommodation. I’m thinking about school related behaviour where more and more of it is being drawn into the criminal justice system, whereas when most you and I, I’m looking around the audience carefully, went to school. We can all recall fights and thefts and other delinquent behaviour in our schools, which was dealt with in situ. More and more that’s being dragged into the criminal justice system. It’s not going to be easy, but I think we have to find ways to deal with more of that offending behaviour in situ. And the principle reason for doing it is that, it’s not just custody that should be a last resort, but also criminalisation. And it should be for the good reason that all the cohort evidence of youth justice studies of which the latest is the Edinburgh Youth Transition Study, undertaken by David Smith and Lesley MacAra, shows that if you take young people who are offending, those who are criminalised as opposed to being dealt with in situ by parents, by schools, by other people if you like, informally, that their likelihood of desisting is reduced rather than increased. That is, criminalising them is often counter productive. And for that reason we need to think more about resorting to the criminalisation label less. Thank you very much.