Child Imprisonment

Joanna Cherry Excerpts

Tuesday 25th June 2019 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairpersonship, Mr Hosie. I congratulate the hon. Member for South Shields (Mrs Lewell-Buck) on securing this debate.

As a member of the Joint Committee on Human Rights, I am acutely aware of the issues the hon. Lady raised, as a result of our recent investigation into youth detention, solitary confinement and restraint. She also raised wider issues pertaining to the current provision of youth custody, including concerns about not only safety and the use of restraint and force, but segregation of children away from others, the lack of purposeful activity for children in custody, the lack of time out of their cells, the disproportionate number of black and minority ethnic children in custody—the right hon. Member for Twickenham (Sir Vince Cable) referred to that—and the distance from home at which children are sometimes held.

Social work statistics in Scotland in 2017-18 showed an increase of 89% in the average number of residents from outwith Scotland in secure accommodation. That is a form of restriction of liberty, because placing children so far from their family reduces family contact and is clearly detrimental to their wellbeing. I very much endorse the call by the hon. Member for South Shields for children to be placed as close as possible to where they come from.

I have been assisted in preparing for this debate by a helpful briefing from the Howard League for Penal Reform, which historically has had a great deal of involvement in this matter. It was very useful to hear from the right hon. Member for Twickenham how far back these problems go, and how very often the attempts at reform have failed, so that we face the same problems today as we did 10, 20 or more years ago. The Howard League has highlighted the number of children from black, Asian and ethnic minority backgrounds who have histories of care and high levels of health problems. We have children with disabilities held in the sorts of conditions that I have described, and it is simply not acceptable.

It is particularly depressing that the 2017 report by the right hon. Member for Tottenham (Mr Lammy) found that more than 40% of children in prison in England and Wales were from black and minority ethnic backgrounds and that, despite the concerns he raised, that figure has now risen to 51%. That is something that we should all be ashamed of.

As I said, the Joint Committee on Human Rights carried out an investigation into youth detention, solitary confinement and restraint. I will say a little bit about our findings in a moment, but most important for the purposes of this debate is our overall finding that the UK Government must increase its

“efforts to coordinate and reconfigure resources, to ensure that there are enough specialised placements…so that each child can be placed in the most appropriate setting and as near as possible to home.”

We were really advocating for recognition of the fact that these offenders are children, and for a more holistic approach. That is what we have attempted in Scotland, as I will come on to in a moment, and with some success—although I will not pretend that some of the problems we are talking about today do not also occur within the Scottish system.

The focus of the report by the Joint Committee on Human Rights was on solitary confinement and restraint. I must confess that we were greatly assisted by evidence from the Minister responding to today’s debate, who was admirably frank about matters, but some serious questions remain to be answered. Our report found

“substantial medical evidence”

of the significant

“physical and psychological impacts of restraint, particularly when used upon children.”

We were quite clear in our findings that restraint harms children, but it also harms the staff who are trained to inflict it; it undermines rehabilitation, which is the objective of detention; and it contributes to a vicious circle of problems that figure in continued offending by such children.

The Committee found that

“rates of restraint of children…are unacceptably high,”

and that those children’s rights were being routinely breached. We were very clear that the deliberate infliction of pain is

“unacceptable under any circumstances under rights legislation”.

We also stated:

“The use of restraint for maintaining ‘good order and discipline’ must be prohibited in all but the most exceptional of circumstances.”

We recognised that sometimes the behaviour even of children can be extremely challenging for staff, and we recognised the right of staff to act in self-defence when necessary, but we were quite clear that the deliberate infliction of pain on children was unacceptable.

In its report, the Joint Committee also looked at solitary confinement and made it clear that

“the use of separation from human contact is harmful to children if used for more than a few hours at a time and, beyond that,”—

as the hon. Member for South Shields said—

“it can amount to inhuman or degrading treatment that is a breach of children’s rights.”

The evidence we heard showed that incidents of separation—separating a child out from other children where there has been trouble or difficulty—can “drift” so that they end up in what amounts to solitary confinement, which can, in practice, be prolonged.

We were using the term “solitary confinement” to refer to

“isolation from normal human contact”

exceeding 22 hours per day, and “prolonged solitary confinement” where it lasts for more than 15 days.

We noted that many commentators, including all the witnesses that gave us evidence on the issue, disagreed with the Government’s assertion that solitary confinement is not used for children. We agreed with the Government that the guidelines do not permit solitary confinement, but we stated that although Ministers should not allow children to be intentionally placed in solitary confinement, that was, in effect, what was happening: incidents of separating a child out can drift and become severe isolation amounting to solitary confinement. In fairness to the Government, we said that the breach of children’s rights was not a policy decision of the Government, but it was within the Government’s power to prevent it by having closer oversight.

We made various calls, of which the Minister is well aware, on the Government to take immediate steps to ensure that the separation of children from human contact never becomes solitary confinement, and that every decision or review of a decision to extend a period of separation beyond 72 hours should be reported to the Minister, who should lay such information before each House. That might seem an extreme recommendation, but it was in recognition of the fact that we are talking about children and the long-lasting damage that can be done if they are placed in solitary confinement.

Depriving a child of their liberty is one of the most serious actions that the state can take. It must always be used as a last resort, and for the shortest possible time. As I have said, my colleagues in the Scottish Government are committed to reducing the number of young people in custody, and they have had some success in doing so. In Scotland, there has been progress on this issue over a long period of time. In the 1960s, after the Kilbrandon report, Scotland moved to a holistic system of justice for children, and the children’s hearing system was set up for all children under 16. The key difference was a move from an adversarial system to an inquisitorial approach, whereby children’s offending is dealt with by a lay panel, with the idea that we should look to the causes of children’s offending rather than subjecting them to the same criminal justice process as adults.

Many years later, the Taylor report made a recommendation for similar reforms to process in England and Wales. It recommended that all children who plead guilty should be diverted from court to a panel that would investigate

“the causes of the child’s behaviour, including any health, welfare and education issues, and put in place a rigorous Plan that will tackle the factors associated with the offending and give victims and communities assurance that the behaviour is being addressed.”

It is a matter of regret that that recommendation has not been taken up by the United Kingdom Government. Ministers in the Home Office and Ministry of Justice have frequently said that there are aspects of criminal justice policy in Scotland that are useful for the Government of England and Wales to look at in relation to good practice. If we go back to the process by which we deal with children who offend, it might be possible to reduce the number of children who need to be held in a secure setting and therefore reduce the sorts of problems that we are discussing. I ask the Minister to address that issue as well as the questions that have been specifically addressed to him by the hon. Member for South Shields.

Will the Minister explain to us why the Government are prepared to look at only some parts of the Taylor report, and why the UK Government are not looking at a system for England and Wales similar to Scotland’s children’s panel? I also want an assurance from the Minister that the Government—not just him—will take very seriously the recommendations of the Joint Committee on Human Rights. I am sure, given his evidence to the Committee, that such an assurance will be forthcoming. The recommendations were agreed unanimously among Members of both Houses, across all parties, and focused on restraint and solitary confinement.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Edward Argar)]

I thank the hon. Member for South Shields (Mrs Lewell-Buck) for securing a debate on this important subject. I know of her commitment to pursuing the subject and ensuring that it continues to be spoken about in this House, and rightly so.

Depriving a child of their liberty is an action that should be undertaken only as a last resort. It is not a responsibility that any state ever takes lightly. All parties would accept their responsibility for our youth justice system and this area, having served in government. I draw a slight distinction for the hon. and learned Member for Edinburgh South West (Joanna Cherry), although one place I hope to visit—I am always happy to learn from the Scottish experience where possible—is HMYOI Polmont, which would be interesting as a comparator for how the English and Welsh system operates.

I am deeply committed to improving outcomes for children who offend. As all speakers have set out, children who enter the youth justice system are some of the most vulnerable in our society and are disproportionately represented in other at-risk groups with multiple and complex needs. It will not surprise my shadow, the hon. Member for Bradford East (Imran Hussain), to know that I take issue with a number of his points, but I share his view. He set out eloquently the characteristics and context for that cohort of young people who end up in custody. For instance, of 555 children surveyed in YOIs in 2017-18, 16% considered themselves to have a disability, 30% reported emotional or mental health problems, and 45% had been, at some point, in local authority care. It is a key priority for me and this Government to ensure that such children receive the support and interventions they need to fulfil their potential and live a crime-free and constructive life.

The principal aim of our youth justice system, and indeed our justice system, must be to protect society. I argue that we do that most effectively by breaking the cycle of reoffending and enabling effective rehabilitation. To deliver a youth justice system that understands and addresses the underlying causes of offending—a range of bases and other factors, and past trauma buried somewhere in that young person, which the shadow Minister was right to allude to—must be key. We can then ensure that every child has the opportunity to turn their life around and move on from their previous offending behaviour.

I am grateful to the right hon. Member for Twickenham (Sir Vince Cable). It is always a pleasure to hear the leader of the Liberal Democrats speak in Westminster Hall, and although I am not sure that my institutional memory is as long as his, he rightly highlighted the context and stated where we have come from. Colleagues who are Members of the House for long enough so often see the same initiatives and ideas come round for a second time—I am not suggesting that the right hon. Gentleman has been here for that long, but he makes a valid point.

We have seen considerable successes in the youth justice system over the past decade and, as has been said, there has been a reduction of nearly 90% in children entering the system for the first time, from just under 100,000 in 2007-08 to around 14,400 in 2017-18. The total number of children receiving a caution or sentence has decreased by 82% from around 146,500 in 2007-08, to around 26,700 in 2017-18. Importantly, we have seen an unprecedented reduction in the number of children in custody, which has reduced by nearly 70% from a monthly average of around 2,900 in 2007-08, to just under 900—it is often lower—in 2017-18.

I will return to those statistics, but one issue raised by a number of right hon. and hon. Members was disproportionality. The justice system must uphold the principles of equality and fairness for all, and in 2017-18 BAME children made up 45% of the youth custody population on average. I am committed to reducing disproportionate outcomes for BAME children in the system, and I share the concerns voiced by the right hon. Member for Tottenham (Mr Lammy) in his 2017 report. Since my appointment almost exactly a year ago, I have worked closely with him. He has been constructive and has welcomed the significant progress in implementing his reforms. It will not surprise hon. Members, however, to hear that he is always clear that he thinks we need to do more and do it faster, but I put on record my gratitude to him for his engagement.

We recognise the need for systemic change, and the principle underpinning that approach is the “explain or change” system. On occasions, there may be a rational and reasonable explanation for something, and we can furnish that where appropriate. If we cannot explain, we should look to make changes that address disproportionate outcomes for BAME children in the justice system. The shadow Minister may be aware that I met his colleague, the hon. Member for Bolton South East (Yasmin Qureshi), to discuss that and the work being done on it, and I am grateful to her for the constructive nature of those discussions.

When a crime has been committed, we have a duty to consider the needs and background of the perpetrator, but also those of the victim and wider community. As such, it is right that courts have the powers they need to sentence children appropriately. With the exception of the hon. Member for South Shields, I note that no one called for the abolition of imprisonment in this context, and I will come on to speak about what should be defined as an appropriate custodial setting. As is her wont as Queen’s Counsel, the hon. and learned Member for Edinburgh South West chose her words exceptionally carefully when referring to custodial settings, and it is an important point.

[Joanna Cherry]

Does the Minister think that it would be beneficial for the system in England and Wales to follow the lead of Scotland in limiting and doing away with short-term sentences as far as possible? That has worked for adults across the system in Scotland, and reduced reoffending. I know it has been looked at by the Government, but does the Minister accept it is a good idea?

[Edward Argar]

The hon. and learned Lady gently tempts me. She will be aware of the clear statement that I, the Secretary of State and others have made about the effectiveness or otherwise of short sentences. I have often said that a short sentence can be long enough to disrupt family life, education, relationships and home, but too short for any meaningful attempt to grapple with the underlying problems and needs of an offender. There is a particular challenge for young people under 18, because there is already a significant presumption against custody, which must be a last resort.

The offences that attract a custodial sentence—I leave this as a reflection on the nature of the cohort of young people who are in prison—include the possession of an article with a blade or point, common assault and battery, possession of other weapons, robbery, burglary in a dwelling, assault, and actual bodily harm. Those offenders make up the bulk of those sentenced to custody, including with short sentences, and I think that many in this House and beyond would still consider such offences very serious. The hon. and learned Lady will be aware that the Secretary of State set out his intention to bring forward proposals for discussion and consultation on how we approach short sentences, and I suspect that if she is patient, she may see that develop further in the coming weeks.

[Joanna Cherry]

Is the Minister aware of the success of the violence reduction unit in Scotland, and the diversionary schemes that take a holistic approach to knife crime? Those have succeeded in hugely reducing knife crime in Scotland, particularly among young men, not by locking them away but by taking a holistic approach to the problem. Surely that approach should also be followed south of the border.