SCYJ Comment: ‘A Smarter Approach to Sentencing’ White Paper

Commenting on the publication of yesterday’s (16 September) Sentencing White Paper by the Ministry of Justice, Pippa Goodfellow (Director of the SCYJ) and Hannah Smithson (Chair of the SCYJ), comment:

The Sentencing White Paper proposes what can only be described as a ‘mixed bag’ of reforms for the youth justice system. The Rt Hon Robert Buckland’s message was clear, tougher sentences for the most serious offences, including a number of punitive measures for children and young adults. In his announcement of the proposals, Buckland emphasised the need for a radical approach and spoke much about public protection and a more balanced approach to ‘smarter sentencing’. A radical overhaul is certainly needed, but the headline-grabbing punitive measures are deeply depressing and disappointing steps backwards for youth justice.

Some of what is laid out in the White Paper is cause for optimism, a stated focus on rehabilitation through the use of more community sentences; increasing the threshold for imposing remand to custody; and a focus on early intervention, prevention and diversion. We were struck by a lack of detail of how these foci will be developed, or how they will play out against a backdrop of limited financial resource. Of particularly significant concern is the lack of detail of how racial disparity at each stage of the justice system will be tackled – recognising the need to improve the situation is not the same as taking immediate action.

We welcome the planned reforms to the criminal records system through the Rehabilitation of Offenders Act, in addition to the recent proposals to change the rules governing disclosure for sensitive roles. However, we are clear that these tweaks of the system will not go far enough. A widespread review of the childhood criminal records system is long overdue, to allow young people to move on from past mistakes and reach their full potential.

Overall, these reforms pay little attention to the underlying causes of crime, summed up by Robert Buckland’s assertion that “to commit a crime is a choice”. Positive, long-term outcomes for young people will not be achieved through a focus on incarceration, supervision and surveillance. SCYJ members have a wealth of experience working with children and young people in the community and are keen to engage in discussions about how to shape the future approach to community justice.

Radical solutions need to be developed with and for children, young people and the organisations supporting them, to make our communities safer and bring about lasting change.

Childhood criminal records are undermining positive developments across the youth justice system

Childhood criminal records are undermining positive developments across the youth justice system, says the Standing Committee for Youth Justice, a national alliance of over 60 charities and youth organisations. The SCYJ calls for a wholescale review of the childhood criminal records system, to achieve a fair and distinct system which allows young people to leave their past mistakes behind them.

Welcome developments in youth justice are being undermined by the current childhood criminal records system, strengthening the timely call for a widespread review. Criminal records are so clearly intertwined with a range of further issues in the wider criminal justice system and are actively impeding the efforts of government and civil society to tackle pressing issues like racial disparity and addressing the impact of violence and exploitation.

The Youth Justice Board (YJB) recently published their Business Plan for 2020-2021, setting out their areas of focus, with priorities including a child first approach, custody and resettlement, ‘serious youth violence’, and overrepresented children. The YJB also intend to define their position on the reformation of childhood criminal records and thereby ‘improving life chances and positive outcomes for children.’ But the SCYJ warns that until the criminal record system is reformed, the YJB’s goals will be hard to achieve.

The SCYJ considers how the current criminal record system acts as a barrier to the priorities and goals wished to be achieved by the YJB in this briefing.

There is particular concern about the added burden that criminal records bring to the livelihoods of Black, Asian and Minority Ethnic (BAME) young people who are already discriminated against on the basis of race, and how these multiple discriminations create barriers that impact access to education, employment, housing, and healthcare.

The SCYJ also echoes recent concerns raised around the criminalisation of children who are victims of exploitation. The YJB acknowledges that Child Criminal Exploitation (CCE) is ‘inextricably linked’ to violent crime, and that CCE takes many forms, but is not fully understood. As a result, many children receive criminal records for behaviour that is a direct result of exploitation, or a response to the trauma that violence brings with it. The SCYJ argues that not only is society failing to protect these children from the harms of exploitation, they are then punished further by a justice system that fails to recognise them as victims, and by the long-term consequences of criminal records.

With one of the most punitive criminal records systems compared to similar international jurisdictions, England and Wales allows widespread, lengthy disclosure of childhood records, anchoring young people to their past. The SCYJ is concerned that in its current form, the criminal records system entrenches a child’s criminal identity and impedes progress at pivotal opportunities for a child or young person to move away from crime, particularly when trying to advance in education, obtain housing, or employment.

The full SCYJ briefing paper, Childhood criminal records: Undermining positive developments across youth justice, is available here.

Pippa Goodfellow, Director of the Standing Committee for Youth Justice, said:

“The Youth Justice Board have set out welcome ambitions for a youth justice system that sees children as children first, as well as commitments to address racial disparity, the impact of violence and exploitation. But criminal records in their current form actively impede all attempts to encourage young people to move on from past mistakes and reach their full potential.

“Criminal records continue to entrench racial disparity and disadvantage, which the government has committed to address – a comprehensive review of the system has transformative potential as a vital tool in addressing these issues, in line with the Lammy Review principle of ‘explain or reform’.

“The criminal records system also fails to recognise child development, or the complex factors that lead to a child becoming entangled with the law, often as a result of being victims of crime or being exploited themselves.

“We warmly welcome the recent announcement that the government will amend the criminal record system to remove disclosure of youth cautions, as well as stop the automatic disclosure of all convictions where a person has more than one conviction. However, we are clear that these tweaks of the system will not go far enough. A widespread review of the childhood criminal records system is long overdue, and necessary to allow the ambitions of the youth justice sector to be realised.

Christopher Stacey, Co-director of Unlock, said:

The current criminal records disclosure regime works against the rehabilitation of children. The stigma and exclusion caused by a criminal record can make it harder to move away from serious youth violence. Those who acquire a criminal record as a child or young adult can find themselves affected in multiple ways and for a very long time, often for the rest of their lives. 

“From employment, volunteering and training or studying, to travelling abroad and buying home insurance, a criminal record represents a significant barrier to the ability to move on. It drags people down, even decades later. As part of the #FairChecks movement, we’re calling for a major review of the legislation on the disclosure of criminal records. This must include specific consideration of the treatment of records obtained for offences committed in childhood, including the possibility of sealing some records.

Craig Pinkney, Executive Director of Solve: The Centre for Youth Violence and Conflict, said:

“How many reports do we need to read to recognise that something is fundamentally wrong here? If we want to live in a society that wants to see change, then we need a complete paradigm shift in the way criminal justice views children and young people who have offended. That requires ACTION, less rhetoric, hiding behind stats and figures and working with agents of change to really make a difference.

Shadae Cazeau, Head of Policy at EQUAL, said:

“Research shows that BAME people are more likely to be given a longer custodial sentence than their white counterparts, directly impacting on their criminal records disclosure, as detention of more than four years for young offenders remains unspent and therefore disclosable. This is detrimental to reducing disproportionality in the youth justice system and undermines the work of criminal justice organisations who are working really hard to reduce this type of racial overrepresentation. BAME offenders face the ‘double discrimination’ of being sentenced more harshly and having to disclose their unspent childhood convictions, making them more likely to reoffend and remain overrepresented in the reoffending statistics.

“The criminal records system is just a small facet of a much wider system but by overhauling the current system it would at least give BAME individuals one less barrier to contend with especially with various other barriers across education, housing and employment.

“Ideally, we would really like to see the government act on the recommendation to seal convictions and agree with Unlock that criminal records tribunals should be used where possible.

Gavin McKenna, Founder of Reach Every Generation, said:

“All of this child centred, strength based, solution focused work is undone when a child who is building their life hits the brick wall of the Criminal Records System, it counteracts the narrative that a child can focus on their strengths and rebuild their life, and renew their identity.

We have seen many young people, even myself, be built up for a better future, trusting and hoping for more, and then told they can’t have the job, or quizzed on their past and made to feel they are not worthy. Consequently, causing many to disengage and withdraw from any service, due to lack of trust and fear, often resulting in the vicious cycle of reoffending.

Notes

  1. The full SCYJ briefing paper, Childhood criminal records: Undermining positive developments across youth justice, is available here.
  2. Previous SCYJ reports concerning childhood criminal records: Growing up, Moving on: A report on the childhood criminal records system in England and Wales & Growing up, Moving on: The International Treatment of Childhood Criminal Records
  3. The full Youth Justice Board Business Plan for 2020-2021, outlining their areas of focus, can be found here.
  4. Recent government plans on criminal record reform can be found here.
  5. The full Unlock report on BAME disproportionality and criminal records can be found here.
  6. Concerns have recently been raised about children who receive criminal records for behaviour that is a direct result of exploitation, as highlighted by the BBC here.
  7. More information on the #FairChecks movement can be found here.

BLOG: Intersectionality: More than just a buzzword for girls and young women in transition

Millie Hall, SCYJ Communications Assistant, reflects on the importance of collaboration in supporting the intersecting needs of girls and young women as they transition to adult services

“Girls and young women are in a particularly unique position in the criminal justice system. As a minority due to both their age and gender, they are consistently overlooked in a system predominately designed for men and understanding around the needs and requirements of girls and young women is frequently neglected in research, policy and practice. The Young Women’s Justice Project, a partnership between the Standing Committee for Youth Justice (SCYJ) and Agenda, aims to shine a light on the experiences of girls and young women aged 17–25 in contact with the criminal justice system and to bring about lasting change to policy and practice.

One of the focal goals for the project is to explore the theme of transitions of girls as they turn 18 and move into adult services. In July 2020 we invited a diverse range of professionals to attend an expert seminar, to input their reflections and ideas, and hear from some exceptional guest speakers. We were eager to consolidate a diverse range of perspectives and work together to develop recommendations for what needs to change. We were joined by colleagues from the youth, women’s and criminal justice sectors, as well as researchers and academics. We covered areas including the transition from Youth Offending Services to Probation, transitional safeguarding, and particular issues facing young women with care experience and those from minority ethnic backgrounds. Participants also discussed the detrimental language used for girls and young women, and the right to place need before age.

A Golden Thread

One golden thread that ran through the seminar was the concept of intersectionality and the need to recognise this in every transition. The concept of intersectionality, first coined by Black feminist scholar and civil rights advocate, Kimberlé Crenshaw, stresses the importance of understanding how the convergence of multiple identities, such as race, gender identity, and socioeconomic status, can result in unique experiences and disadvantages. Intersectionality recognises the multifaceted individual and understands that this can result in discrimination and injustice striking at multiple levels.

Disregarding Intersectionality

Despite the power of intersectionality to allow for a multi-directional analysis of the trajectories of girls and young women through the criminal justice system and transitions from youth to adult services, this prism of understanding is not consistently applied. The disregard for intersectionality is demonstrated by the language and stigma still attached to many girls and young women. For example, the term ‘hard to reach’, as highlighted in the seminar by Dr Claire Fitzpatrick regarding care-experienced girls, is often used for girls and young women with compounding needs. However, it is entirely unjust to present one-size-fits-all systems to girls and young women in need and to then negatively label them when they, unsurprisingly, fail to respond effectively. So, how do we truly condition systems to recognise and effectively respond to intersectionality? How do we move away from intersectionality being nothing more than a buzzword and begin to actually put in place the actions that the concept requires?

Integration and Collaboration

What accompanied the discussions around intersectionality was a call for more holistic approaches to responding to the needs of girls and young women. However, these needs are often so complex and interconnected that they would be almost impossible to be effectively resolved by one service or organisation alone. This was demonstrated by the simple fact that our seminar, which had criminal justice at its heart, required such a broad range of organisations to be able to hold meaningful conversations. As said in the seminar by the Director of Research in Practice, Dez Holmes:

‘the interconnectedness of these harms and adversities demand a highly integrated system.’

Implementing intersectional understanding will require organisations to hold the willingness to look critically at their expertise and recognise where they are, and importantly where they are not, well-placed to provide support. It requires recognising when multiple streams of support are needed in order to wholly respond to the intersecting needs of girls and young women and seeking out partners with appropriate and complementary expertise. As stressed in the seminar by Milk & Honey founder Ebinehita Iyere:

The experience of Black girls should not be an add on for a funding bid, it should be done with and for Black girls.
So, if you don’t understand them, don’t do it.

Effective collaboration is key to deliver intersectional, tailored support, where organisations wrap around girls and young women and focus on supporting and championing their needs.

Intersectional Methodology

In the seminar, there were also concerns about the lack of data relating to girls and young women in contact with the criminal justice system and the further systems explored. This is a shameful gap in research, however, it also presents a strong opportunity to effectively approach the exploration of transitioning girls and young women with meaningful intersectional methodology. The human experience cannot be understood in its totality by prioritising or focusing on one sole factor. An example of intersectional methodology is the intersectionality-based policy analysis (IBPA) as demonstrated by Aviah Sarah Day and Aisha Gill in their report exploring intersectionality and domestic violence. They explained that IBPA uses a series of ‘generic, adaptable questions that explore processes, relationships and interactions in broad, open-ended ways that are not tied to any specific social, legal or cultural context.’ This allows for ‘rich data’, unrestricted by essentialist thoughts of identity, and which will better lead to equitable policy responses and recommendations.

Expanding the Conversation

For the most part, the importance of intersectionality as a concept has been widely acknowledged by many organisations and services. However, it appears that there is still a long way to go before this recognition translates into a comprehensive understanding and responsivity. The fruitful discussions that began in this seminar proved how worthwhile it is to open up the conversation to organisations from a diverse range of perspectives, combining expertise to further our collective goal of improving policy and practice, to support girls and young women towards a positive future. We are working to produce a briefing on transitions later in the year, so look out for updates in due course.”

Please feel free to contact policy@scyj.org.uk regarding girls in transition, or Maggie maggie@weareagenda.org if you have any broader questions about the project.