The final two pieces in this series look at how criminals can be managed in Wales after independence. While the best way to deal with crime is to prevent it from happening in the first place, that’s not going to stop everyone. This piece will look at criminal rehabilitation and non-custodial sentencing options like fines, community sentencing and probation.
The Current Picture
Youth justice services are non-devolved. Youth justice services are overseen by the Youth Justice Board for England and Wales.
Offenders aged 10-17 are usually tried in youth courts – which are part of the Magistrates’ Court system and operate similarly but are less formal. For those who commit more serious offences (i.e. murder), their case may be heard in a Crown Court, with the accused usually giving evidence via video link.
The most common options (in terms of punishment and rehabilitation) available to the youth court are:
- Discharge – Essentially released from court with no further action even if the offender is judged to have committed an offence, but this could be absolute or with conditions.
- Caution (and conditional caution).
- Fine – usually capped at £250 for those aged 10-13 and up to £1,000 for 14-17-year-olds.
- Compensation Order – anything up to £5,000.
- Youth referral and rehabilitation orders – A form of probation overseen by the local youth justice service (there are 17 local youth justice services in Wales) and a nominated youth justice panel. Young offenders with referral orders usually have to appear before the panel at regular intervals and agree to take part in certain activities. Rehabilitation orders usually come with stricter conditions.
- Training and detention orders – effectively imprisonment. Offenders aged under 21 who are deemed to justify detention and training are set either to Young Offenders Institutions if they’re aged 15-18 (the only one in Wales is at HMP Parc in Bridgend with an operational capacity of 64) or usually Secure Children’s Homes if they’re aged 12-15 (the only one in Wales being Hillside in Neath with 22 places).
- Section 90-91 Order – The most serious form of youth imprisonment reserved for the Crown Courts, also known as “detained at His/Her Majesty’s Pleasure”.
In 2020-213, there were 1,030 orders and sentences passed by the youth courts in Wales. This was down on previous years (1338 in 2019-20, 1449 in 2018-19, 1,620 in 2017-18).
While the Covid-19 pandemic will have had an impact the trend has been downwards for a while – which is either a good thing or a bad thing depending on your views on how “soft” the justice system is on young offenders.
The most common youth offences in 2020-21 include violence against the person, motoring offences, burglary and theft-related offences and criminal damage. Public order offences, drug offences and sexual offences appear to be less common in general but are significant by themselves.
In terms of demographics, most young offenders in 2020-21 (and seemingly following trends from previous years) were white boys aged 15-17 (515 – about 80% of the total). This compares to 47 recorded offenders under the age of 18 who were from a non-white background, the majority of whom (28) were mixed-race.
There were 105 girls, most of whom were white and aged 15-17, while in total 140 young offenders were aged 10-14.
The Thomas Commission & Youth Justice Reform
The Thomas Commission noted the early intervention efforts which have resulted in a reduced caseload for the youth justice service. The Commission concluded4 that “the reduction was driven initially by youth inclusion and support panels and national programmes. Innovative bureau and triage services drove a further reduction.”
As of 2019, only 26 under-18s were being held in custody in Wales. The overall conclusion was that “youth justice services are generally working well in Wales” mainly due to partnership working between different agencies.
In 2019, the Welsh and UK governments published a joint blueprint for the future of Youth Justice (pdf). The proposals included a greater emphasis on dealing with adverse childhood experiences and childhood traumas, diverting young offenders away from the criminal justice system, housing all children handed custodial sentences in Wales and aligning youth justice with children’s rights as in Welsh law.
Despite these positive notes, the Thomas Commission picked out some problems with youth justice.
The first is complicated funding arrangements, with no single source of money; it comes in the form of multiple grants from local government, Police & Crime Commissioners, the Welsh Government and UK Government. Partnership working is, therefore, inherently fragile and not something that can work long-term. Reported spending by the (EnglandandWales) Youth Justice Board is said to be around £3million a year5.
Elsewhere, there are policy divergences (particularly children’s rights) which means an “EnglandandWales” policy no longer fits, a lack of suitable secure accommodation for young offenders held in custody and a lack of transparency.
Youth Justice & Independence: The Options
Age of criminal responsibility
The age of criminal responsibility determines at what age a person can be deemed to be personally responsible for committing a crime, leaving them liable to being arrested and charged.
- Maintain the current age of criminal responsibility (10).
- Follow the Thomas Commission recommendation to raise the age of criminal responsibility from 10 to 12. This has already happened in Scotland.
- Raise the age of criminal responsibility to 14 or 15 (in line with UN recommendations and the likes of Norway) – except in extreme circumstances (i.e. murder); offenders over this age would be treated as adults.
Youth Justice (General)
Based on what’s happening so far, there’s no real need to make any significant reforms here other than perhaps moving towards the Thomas Commission’s vision for “problem-solving courts” (Part XII). As it stands, things are heading in the right direction anyway.
- Status quo – no major changes, keep things as they are.
- Create a unified national Youth Justice Service with a formal budget set centrally or part-funded via a council tax precept.
- Hand control over youth justice to local and/or regional government.
- Possibly move youth court hearings from court buildings themselves to more informal settings – except in the most serious circumstances (i.e. the accused could/should face a custodial sentence).
Custodial Sentences for the under-18s
Young Offenders Institutes are due to be phased out in the coming years. As mentioned, the only YOI in Wales is at Parc Prison in Bridgend.
There should be a general presumption against custodial sentences/detention for the under-18s. If that isn’t possible or suitable then potential options could include:
- Continue with the single national Secure Children’s Home or move towards smaller units of 3-6 places spread around Wales, perhaps co-located with secure CAMHS in-patient facilities.
- Follow the example of the Republic of Ireland and replace secure children’s homes and Young Offenders Institutes with one or more secure schools, which could also take children who have been permanently excluded from mainstream schools or have failed to adapt to Pupil Referral Units. A similar policy has been proposed for England but rejected in Wales to date.
- Young offenders over the age of 15 who commit a Section 90-91 level offence should serve their time in an adult prison or similar facility, with space set aside exclusively for offenders aged 15-17 until they join the rest of the prisoners at age 18.
3: UK Ministry of Justice, Youth Justice Statistics: 2020 – 2021 (27th January 2022). Local Tables. Available at: https://www.gov.uk/government/statistics/youth-justice-statistics-2020-to-2021
4: Commission on Justice in Wales, (October 2019). Justice in Wales for the People of Wales, p197-203. Available at: https://gov.wales/sites/default/files/publications/2019-10/Justice%20Commission%20ENG%20DIGITAL_2.pdf
5: Guto Ifan, Cardiff University, (May 2019). Public Spending on the Justice System in Wales, p36-37. Available at: https://www.cardiff.ac.uk/__data/assets/pdf_file/0008/1699217/Legal-Economy-report-FINAL.pdf
