Guiding principles in Resettlement law: Who are they guiding?

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As part of our HRU work, the Howard League For Penal Reform invited us to one of their eye opening conferences, highlighting the issues faced by young people leaving custody.

Youth Offending is a topic frequently raised in literature. However, resettlement receives very little attention in comparison. Resettlement is the transition period for youths between being released from custody and adjusting into normal civilian life in a safe, secure and appropriate environment. Resettlement of young offenders is important so that they can move on. It allows them to forget about the past and think about the future. Effective resettlement should help ensure that all young people leaving custody receive the support that they need to help prevent them from reoffending. However, this task is not always met. Out of approximately 4,000 young people sentenced to custody each year, roughly 60-80% will reoffend within 12 months. The reasons for this are contested, however what is certain is that the current system and guiding legal principles, founded in human rights and based around the UN Convention on the Rights of the Child (UNCRC) are not being followed in their entirety.

Resettlement, supposedly centred on the human rights of the child, their welfare and access to justice has become a formulaic plan, based on statistics and wide net approaches, rather than defending human rights, many in the process are side-stepping them.

Resettlement law does not obviously link to the UNCRC. However, many of its articles, including article 3 outlining the welfare principle, article 12 giving youths access to justice and article 37 concerning detention form a significant part on the law on resettlement. There is difficulty with the UNCRC. Although it provides a comprehensive checklist of children’s rights and overlaps with the ECHR, the UNCRC has not been implemented into UK domestic law.

The importance of this is disputed. Some argue that the main principles are contained in existing legislation, and as such, without implementation, avenues are opened up for a human rights based approach to resettlement. However, this does not sit well with actual practice. In practice, the UNCRC has proved to be the most violated international human rights agreement with little sign of change.

Treat Children Differently
There are several legal principles that underpin the area of Resettlement Law. These legal principles have a human rights grounding. The first and possibly most accepted is that children should be treated differently from adults. The development of specific laws, international instruments, policy and guidance, applicable only to children have all aided in this principle and its promotion and following remains strong. It is the remaining principles however that still need work.

Detention as a last resort
The second guiding legal principle is that detention should be the very last option; especially where children and young people are concerned. Detention is a restrictive sanction that should be avoided where necessary. This principle has long since benefitted from legal force. In the case of Saadi v United Kingdom, the Grand Chamber in Strasbourg stated that “the detention of an individual is such a serious measure that it is only justified as a last resort, where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest.” The principle is also expressed in Article 37 of the UNCRC to which states that “No child shall be deprived of his or her liberty unlawfully… the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.” This article has been translated into domestic law. However, despite its legal force, it often goes ignored.

There have been rapid increases in rates of youth custody with the youth custody population of England and Wales being one of the highest in Western Europe. Imprisonment of children in England and Wales is not being applied as a measure of last resort and is not for the shortest period of time. In fact, there has been a 90% increase in the number of young people, aged 10-17 years sentenced to custody between 1992 and 2002 and an increase in the average length of a custodial sentence for youths. It follows therefore, that something must be done to increase the force of the UNCRC and protect the human rights of youths in the resettlement process.

Research has shown that several countries in Europe, particularly Scandinavian states, have had much more success in adhering to the benchmarks set out in the UNCRC by ensuring that child custody is only used as a last resort. However, the UK still has a way to go. As a common law legal system, simply copying the Scandinavian approach is not an option. We must go further in order to reform the Youth Justice System and encourage the use of community sentences, proven to be more effective than custodial sentences, when dealing with youth offenders.

Although not directly enforceable in the UK, the UNCRC has, in the most, been translated into domestic law through statues such as the Children and Young Persons Act 1983 and the Criminal Justice Act 2003. Therefore, the mere incorporation of the UNCRC into domestic law would only be of limited significance. Instead, the UK must develop a new vision of social justice. It must overhaul its thinking, approach and practice to young people. Whilst ideas of abolishing all penal custody for young offenders with the exception of those that pose a serious threat to public safety may seem somewhat extreme, a reduction is certainly called for. Re-offending rates are increasing and custodial sentences for youths are no longer fulfilling their purpose in both a penal light and in terms of social welfare.

Welfare as a primary consideration
Also known as the best interest principle, the overarching protection for young offenders is the principle reflected in section 44(1) of the Children and Young Persons Act 1983. This states, “Every court in dealing with a child or young person…shall have regard to the welfare of the child or young person…” Reflected in Article 3(1) of the UNCRC, the welfare principle has attracted weight both in statute, case law and policy guidance.
Doubted for its ambiguity in the past, case law over many years has alleviated any concerns regarding the importance of the welfare principle. It is now the centre of any decision and over the last few years, the Youth Justice Board and Prison Service have introduced several new initiatives and expanded their resources in order to best serve the welfare of young offenders leaving custody. In addition to this, the Green Paper Every Child Matters attempted to take a very welfare orientated approach to young people and through translation by the Youth Justice Board, young people leaving custody. This movement involved tackling offender’s problems by a joint approach between children’s services and, those working in the youth justice system. It was hoped that this would decrease offending, address the social needs of young people and ease the process of resettlement. Results however were disappointing.

Reconviction rates remained at an all time high and reports published showed that the resettlement programmes were not meeting their social targets. We have not yet done enough to serve the UNCRC and the youths of our country.

We must find the potential in resettlement programmes as we must address their efficacy. Resources, time and money needs to be invested into the program and more needs to be invested in social welfare of young offenders. There is no one-size-fits-all approach to resettlement and as such, young offenders need individual time and commitment in order to best help them move on and begin a new and improved life. The Youth Justice Board Cyrmu and Welsh Government have recognised the need for individuality. Earlier this year, they launched a platform for young people to design a bespoke resettlement plan, which can address a host of personal, social and financial issues not afforded in the earlier programs. In addition, worthwhile, hardworking and vital organisations such as the Howard League for Penal Reform have been working since 1996 challenging rules and looking to change the robotic approach previously taken to youth offenders. They seek to ensure that the most vulnerable in society are given every chance to succeed through projects such as U R Boss, for young people, led by young people and giving young people exactly what they need, quicker solutions. They make it happen.

Access to Justice
As the third guiding legal principle in resettlement law, Article 12 of the UNCRC provides that children are entitled to access to justice. This includes access to legal advice and representation, a right to be heard and the right to be consulted on a fully informed basis about decisions that affect them. Once again however, this is a right that is often ignored.
Following 2nd December 2013, legal aid for young offenders has seen significant decreases. Some narrow avenues still exist however, legal advice, previously provided will be a distant past. Where then does access to justice come from? If a young offender is under a local authority care status, it may be provided from the authority. However, with increasing restrictions on government finances and the difficulties and delays in gaining a care status, this is unlikely to provide much assurance.

In addition, post the need for legal advice, if a young offender is subject to a detention and training order, Article 8 of the UNCRC requires that as part of the access to justice for youths, they are required to be consulted in the laying down of conditions for the order. In reality, this is a fiction. Due to the number of offenders, time constraints and the pressures on the courts services, conditions are set without the input of the offender, his views, thoughts or hopes for reform, access to justice seemingly being an overlooked nuisance.

What authority does exist however is that of MAPPA. Formally titled Multi-Agency Public Protection Arrangements, MAPPA is the name given to arrangements in England and Wales for the authorities tasked with managing registered sexual and violent offenders. Introduced in order to assess and manage risks posed by offenders, their decisions can have life-changing effects on young offenders released from prison. Its provisions require local authority to co-operate with justice service such as police and probation services in order to protect the public. They make life altering decisions for young people every day and place offenders into one of three categories; registered sex offenders, sexual or violent offenders receiving 12 months or more in custody and anyone else who poses a ‘risk of serious harm to the public.’ Yet for all their authority, they are not accountable. MAPPA possesses a complete lack of transparency or accountability. Their 2012 guidance encourages the participation of young people in their decisions but makes absolutely no compulsory requirements or sanctions for failure, a notion completely inconsistent with Article 12 of the UNCRC and access to justice.

The guiding legal principles in resettlement law are infamous. However, the extent to which they actually guide authorities, agencies and decision making bodies is in dispute. Children are treated differently to adults; the UK has developed several laws, policies, guidelines and frameworks in order to address the different social, economic and political needs of children and young offenders. However, it appears that in some ways the success stops there.

Instead of defending the human rights preserved in the UNCRC and UK statute, detention is no longer a last resort and longer, punitive measures are becoming increasingly popular with the courts of the UK. Community sentences are no longer aimed at the individual person but can be described as a box ticking exercise based on a set of characteristics relating to the offence. They are becoming less about the offender and more about satisfying the guidelines and principles laid down by parliament. Individual social, economic and educational needs are being sidelined for the requirement to show that the offender is being suitably punished; neglecting the requirement to reform the offender and address the underlying problem in favour of showing that punishment is ongoing.

As a primary consideration, welfare is being addressed. However, the way in which it is being addressed, in line with the UNCRC is not consistent with or of a quality similar to many other neighbouring sovereign states. As part of the UK’s overall reliance on custodial sentences, the welfare principle is also being side-lined, and by extension, so are human rights. The implementation of the UNCRC will not solve this. An overall reform of the youth offending system is necessary in order to remove the reliance of punishment and address the individual needs of the young person, their surroundings and their reasons for offending.

Access to justice is fraught with difficulties. With legal aid cuts, a lack of involvement in the decision making process and the overall delays to which riddle the system, young offenders are being denied justice on a consistent basis.

We have a system that needs to return to its origins of human rights. We must look at the reasons for the UNCRC, its primary goals and its targeted audience. With the results of the analysis and thematic work of the Youth Justice Board due out in January 2014, it is hoped that its purpose of looking for the likely causes and characteristics of high reoffending rates has been successful. Furthermore, rather than focusing on the offence, we must turn our attention to the offender and their rights, and once and for all address the reasons for offending before we search for a solution.

Monica Savic-Jabrow

For more information on the work of the Howard League for Penal Reform visit their website
http://www.howardleague.org or follow them on social media

https://m.facebook.com/howard.league.for.penal.reform?id=172045996155479&refsrc=https%3A%2F%2Fwww.facebook.com%2Fhoward.league.for.penal.reform

https://mobile.twitter.com/TheHowardLeague

2 responses to “Guiding principles in Resettlement law: Who are they guiding?

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