News Insight: Youth Justice: The alternatives to youth custody

The Youth Justice Board's annual convention last week took an interesting twist after furious magistrates refuted suggestions that they were to blame for the high number of young people in custody.

Joyce Moseley, chief executive of Catch22, sparked controversy when she suggested that magistrates were likely to send young offenders to custody in the belief that it would improve their chances of receiving a good education.

The issue is becoming more and more important because of the high number of first time entrants to the youth justice system (see graph), with concerns that magistrates are not making sufficient use of community alternatives to custody.

Moseley says she never intended to blame anyone, but says she believes that too many magistrates are sending young people to custody.

"If you look across some of the custody rates, you have a mix of high and low across the country," she says. "You can't justify that."

A last resort

Joe Burchill, youth court magistrate in Camberwell, says: "No magistrate will send young people to custody unless they believe it is necessary."

John Fassenfelt, a youth court magistrate from Kent, agrees but says there is an issue around funding for intensive supervision and surveillance programmes (ISSP). These are alternatives to custody that combine community-based surveillance with a comprehensive and sustained focus on tackling the factors that contribute to the young person's offending behaviour.

"We need properly funded alternatives to custody," he says. "It varies across the country. ISSP is a good alternative but it may not always be available. I understand the circumstances around funding but if an ISSP isn't available then magistrates have no alternative other than custody."

Penelope Gibbs, director of the Prison Reform Trust's strategy to reduce child and youth imprisonment, feels that the government missed a trick in not clarifying rules around sentencing children when it passed the Criminal Justice and Immigration Act, in May this year.

Criminal Justice and Immigration Act

"If the law said that magistrates and district judges couldn't send children to custody for non-violent offences, then they wouldn't," she says. "The easiest way to address this whole issue to is change the law. The government had an opportunity with the Act and didn't take it."

The Act did implement a new community sentencing framework, called the youth rehabilitation order (YRO). From autumn 2009 it will replace existing community orders for under-18s and will be made up of a "menu" of interventions. Courts will be able to choose from the menu to construct the sentence thought most likely to prevent the young person reoffending.

Fassenfelt is hopeful that this will make sentencing easier for magistrates and district judges. "I'm optimistic that it will help us," he says. "But some of the options, such as intensive fostering, are still pilots and not available everywhere."

Gibbs adds that training is not good enough for youth court magistrates and district judges. "To be a youth court magistrate you have to be a magistrate in the adult court first," she says. "That's not necessarily a good thing, because you're used to different law. Then you only get one day's training for the youth court."

The Sentencing Guidelines Council is currently drawing up guidelines for youth court magistrates.

COMMUNITY OPTIONS FOR MAGISTRATES

• There are currently 10 community disposals that young offenders can receive from magistrates
• These include an action plan order, which aims to provide a short but intensive and individually tailored programme with a series of requirements placed on the young person and a community punishment order, where young people aged 16 to 17 complete unpaid community work for a period of 40 to 240 hours. This can include working with the elderly or painting and decorating
• Another option is the supervision order. This can last up to three years. A range of conditions can be attached to the order when the sentence is used for more serious offences, which can last for up to 90 days. These include participation in an intensive supervision and surveillance programme or drug treatment for young people aged over 16
• However, next year community sentences for young offenders will change, with the implementation of the youth rehabilitation order (YRO). This is a generic community sentence for young offenders and will combine a number of existing sentences into one
• From autumn 2009, the YRO will be the standard community sentence used for most children and young people who offend. It aims to simplify sentencing for young people, while improving the flexibility of interventions.